The administration's goal of becoming the "most transparent" in history still needs a lot of improvement to get anywhere near the lofty goals announced during the (first) inauguration. One of the few steps in the right direction has been the "We the People" website, which allows anyone to post a petition and have it answered by the White House if it reaches 25,000 signatures within 30 days.

While the aim is noble, in practice the site has become a bit of joke, both in terms of participation and response. Most responses so far have been canned administration talking points that double down on whatever the current position is on the issue. And from the looks of the petitions currently sitting above the 25,000 threshold, there's no shortage of ridiculous ideas searching for presidential validation.

But among the multiple requests for state secession and Death Star construction are some issues that the administration should be responding to -- like marijuana legalization/regulation, repealing the Defense of Marriage Act, free access to tax-funded scientific research -- but clearly is choosing not to. A US News and World Report article points out that the White House's hit-and-miss approach seems to treat the petition site as another soapbox for cherry-picked issues.

The White House's "We the People" website just got its most popular petition to date: a request to officially designate the Westboro Baptist church as a hate group. The petition was started on Dec. 14, the same day a shooting at an elementary school in Newtown, Conn., left 27 people dead, 20 of them children, and the day the fringe church announced it would picket the victims' funerals.

The petition now has more than 260,000 signatures, far and above the 25,000 signature needed for official response.

But the White House has not yet responded to the Westboro petition—or to any of the rather uncommon requests that have flooded the site over the last few months (to secede from the Union, to make American Sign Language an official language or to nationalize Twinkies).

The White House immediately responded, however, to a petition calling to reduce gun violence after the Newtown shooting, an issue President Barack Obama has said he's keen to address. In a sit-down video response, Obama carefully explained the ways in which he'd work to make children's schools more safe.

Looking through the archives, many petitions that have been answered fall well below the 25,000 signatures needed to "force" a response, while many others well over the limit continue to be ignored. For every ignored secession request (Texas holds the lead with 123K signatures), there's a response for White House beer recipes (12,240 signatures). For every request to strip the Westboro Church of its tax exempt status (multiple - leader has 70K+ signatures), there's a response to a petition for ending "pet homelessness" (11,729 signatures).

While many of the current leaders have dubious import (deport Piers Morgan for attacking the 2nd amendment - 88K signatures), the simple fact is that the responses are being doled out in a fashion that makes a majority of the site's offerings nothing more than colorful wallpaper. The rationale behind the White House's general lack of response is unsurprising:

J.H. Snider, a fellow at Harvard University's Edmond J. Safra Center for Ethics, predicted in The Huffington Post in October 2011 that "We The People" would "probably only have a short life ... because the interests of the public and elected officials differ."

Those few that have been answered have generated their own criticism. In response to multiple petitions concerning the legalization of marijuana, the administration handed the "reply" duties over to its current drug czar, who was more than happy to reassert his position's normal talking points.

On the plus side, the administration has responded to 87 petitions so far and has even spent some time explaining why it cannot respond directly to certain requests. And it's a step in the right direction that the site is still up and running. But as long as the White House continues to address only its pet issues, while ignoring a majority of the posted petitions, the more this site becomes nothing more than the internet version of the supervisor who asks for suggestions from the staff before implementing his own ideas -- lots of nodding and thoughtful noises, but very little in direct response or action. 

Well, this is amusing. San Francisco wireless ISP MonkeyBrains (who some friends use and love) has posted an IndieGogo crowdfunding project in which they're seeking $325,000,000 (yes, that's $325 million) to build a satellite to deliver internet access. The "tiers" are interesting. The lowest is $5,000 (two people have claimed those already!) but then quickly escalate to $10 million for the second tier. Of course, if you pay that, you get a gigabit internet connection for 5 years (only 5? guys, c'mon!). The full description of the project is worth reading:

Abstract

MonkeyBrains is a local ISP in San Francsico.  North Korea just launched a satellite; we want to as well.

The Cost Breakdown of Launching a Satellite

A quick internet search reveals that this is the cost for getting a satellite into orbit:

• Satellite manufacture: $150M
• Satellite launch: $120M
• Launch insurance: $20M
• In-orbit insurance: $20M
• Satellite operations (15 years): $15M

Faster Internet!

Our initial research seems to indicate having a satellite in orbit may not speed up your internet at all. [http://en.wikipedia.org/wiki/Satellite_Internet_access#Geostationary_unsuitable_for_low-latency_applications].  However, if more research doesn't bode well for a geostationary satellite, we will take all of the $325M to fund either:

• Fiber to the home.
• A balloon tethered to the Farallon islands.
• a hovering drone over the Bay.

Trust Us

Some people just can't beleive we want to make the Internet Faster and Cheaper (and more Out of Control) than it already is.  Your money will be spent well, and San Francisco (and possibly -- if funds allow) the entire Bay Area will benefit.  We have set this fundraiser as Fixed Funding, so there is no risk of sending MonkeyBrains a little bit of money from your wallet without many other people feeling the same way.

Obviously, this is a joke by MonkeyBrains, but it's still interesting to see. It appears that they're trying to use this as a bit of a marketing effort -- not all that different from some of the products we've offered for sale in our store. The reason people like crowdfunding goes beyond just the money-raising part to the fact that it can also be an effective marketing platform. Here, it looks like MonkeyBrains is testing out the marketing aspect with little likelihood of actually using the fundraising part.

Oh, and don't miss the video, in which they explain their plan to use UFOs to deliver little pieces of internet from the satellite to your computer.

Yes, we've already covered the rejection of key amendments in the FISA Amendments Act renewal, but that wasn't the only case of Congress ignoring the public's privacy concerns as they close out this session.

Back in September, we noted that Senator Patrick Leahy, who has been working on much needed reforms for ECPA (the Electronic Communications Privacy Act) -- such as requiring law enforcement get a warrant to read your email -- had attached his ECPA reform plan to an update of the Video Privacy Protection Act (VPPA). While I know some privacy folks were worried about this update to the VPPA, I don't have much of a problem with it. The original VPPA, written as a quick response to a video store revealing Robert Bork's (somewhat boring) video rental history during his Supreme Court nomination hearings, did seem a bit limiting -- especially for online video sites such as Netflix that wanted to add some useful social features. However, it was the ECPA reform part that was more important. Attaching ECPA reform to VPPA reform didn't make some privacy folks happy, but they seemed willing to go along with the VPPA changes if it really meant that we'd get warrant requirements for emails and other digital messages.

There were some attempts to water down that ECPA reform at the end of last month, but the Senate Judiciary Committee kept the warrant requirement in there and rejected various attempts to weaken the bill. As we noted, however, it still was a long way from becoming law, given the need to pass a full Senate vote and to have a companion House bill make the rounds. We assumed that there would be no movement until next year and the new Congress.

But... late last week, the House rubberstamped the VPPA update, and the Senate, almost immediately signed off on the House's version, which the President is expected to sign any moment now. In case you missed it, that means that the ECPA reforms -- which were supposed to be bundled with the VPPA to make the whole thing palatable -- got dropped entirely. And now we get the VPPA reforms and no ECPA reform at all. Neat trick. "Bundle" two things to get support... and then at the last minute drop one part and rush through the other.

One of the most common new year's resolutions is to try to lose weight and stick to a diet in the coming year. It's an especially obvious resolution to make after eating way too much at family gatherings. Here are just a few links on the topic of eating too much and gaining more than a few extra pounds.

• Bags of snacks that contain just 100 calories worth of goodies are kind of annoying, so how about other ways to indicate calories? Imagine stacks of potato chips where every tenth chip was red -- subtly telling you how many servings you're consuming. [url]
• The Weight of The Nation is an HBO documentary that investigates the issues of obesity and the food industry in the US. Nearly 70% of American adults are overweight or obese, and obesity is a public health issue that can not be ignored. [url]
• An obesity-inducing microbe could be living in our intestines, making us fatter. Fight fire with fire... and ingest some tapeworms! [url]

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

While there was a lot of rhetoric concerning the Instagram terms of service mess recently, most observers of these kinds of things noted that for all the claims from people that they were "quitting" the service, few people ever actually follow through on such threats. So, it surprised some this morning when the NY Post reported that Instagram users actually did flee in large droves, citing data from a company called AppData. They argued that there was a potential 25% decline in users, which is huge. The news apparently contributed to Facebook's stock dropping by nearly 3%... despite the claim being almost entirely bogus.

Even a quick look at the data that AppData presented should have raised some eyebrows: As lots of folks pointed out, starting with Zachary Seward at Quartz (linked above), the drop shown does not occur until December 24th... a good week after the whole controversy went down. Furthermore, AppData does not measure all Instagram usage at all, but the small subset of people who have connected their Instagram accounts to their Facebook accounts. But most people just use Instagram as a mobile app, and AppData doesn't measure that.

Meanwhile, Robin Wauters over at TheNextWeb does a brilliant job of showing plenty of other services that AppsData's "data" also shows "plunged" during the same time period, including Yahoo! Social bar, which shot up... and then back down: Or Pinterest, which dropped a bunch during that same time period: Wauters lists a bunch of other examples as well, all suggesting that maybe the original claim by AppData, repeated by the NY Post (and then others) had little basis in reality.

The ripple effects from the Sandy Hook tragedy continue to present themselves. When something so horrific occurs, it's not difficult to understand over-the-top reactions, but that doesn't mean those reactions shouldn't be kept in check. We had folks rushing to blame videogames for what happened, despite all evidence to the contrary. We even saw how social media and media-media combined to rush to judgement on the wrong suspect and the wrong related Facebook "likes". Now, one new ripple is that David Gregory is under investigation.

The moderator of Meet The Press found himself the subject of a D.C. Metro PD inquiry over his prop use of high-capacity rifle magazines during an interview with an NRA representative. The inquiry being one thing, there's also a completely misguided White House petition floating around asking for the immediate arrest of Gregory.

David Gregory is not above the law; he is a journalist, and must be held accountable to the same law as every other person.

DC High Capacity Ammunition Magazines - D.C. Official Code 7-2506.01 (b) No person in the District shall possess, sell, or transfer any large capacity ammunition feeding device regardless of whether the device is attached to a firearm. For the purposes of this subsection, the term large capacity ammunition feeding device means a magazine, belt, drum, feed strip, or similar device that has a capacity of, or that can be readily restored or converted to accept, more than 10 rounds of ammunition.

We The People demand that he be formally charged for violation of this law on "Meet The Press."

I admit, it's difficult to know where to begin. Let's start with MTP's use of the magazines as props. It turns out that the show's producers might make the dean's list for dumb this year. They did indeed get permission to use the props on the show, but they only got permission from the ATF, not local law enforcement, where those magazines are illegal. Stupid, but that kind of thing happens in show business, I suppose.

Now, dealing with the petition itself. It's just pickles that someone from Boise, Idaho is so whole-heartedly concerned with Metro D.C. gun laws that they need to start a petition to get the White House involved. Either that, or people are having more of those over-the-top reactions to a tragedy I mentioned earlier. Not to mention, as the linked article notes, attempting to get the Obama administration involved in any of this is simply futile.

The drive to lock Gregory up still needs about 15,000 signers, but in the mean time, let's clear this up. Although the White House could certainly apply political pressure to the D.C. government, it has no direct purview over the Metropolitan Police Department's investigations. To boot, Gregory held up the magazine as an example of the kind of ammunition used in the massacre at Sandy Hook Elementary School in Newton, Conn., and in the wake of that carnage, President Obama has moved toward making gun control a key issue in his second term. So, yeah, demanding that the White House clap David Gregory in irons is kind of dumb. Let's instead focus on the real villains, like CNN blabber Piers Morgan. A petition calling for his deportation back to the United Kingdom has garnered more than 82,000 signatures.

Now there's a petition I can get behind.

The Connecticut school shooting has pushed the discussion of gun control back into the media spotlight, along with providing a convenient soapbox for lawmakers, lobbying groups and pundits willing to politicize tragedies to push their agendas through. There's been a lot of vitriol on both sides of the issue, with discussion of Second Amendment rights often leading those involved to forget all about the opposing side's First Amendment rights.

One aspect that has changed is the sheer amount of personal information available to those involved in this debate, which results in the sort of exchange that played out recently in New York. The Journal News, covering the Lower Hudson Valley, decided to post a Google map that showed the names and addresses of everyone with handgun permits in Westchester and Rockland counties. This information was gathered via a Freedom of Information requests.

Published under the fear-inducing title "The Gun Owner Next Door: What you don't know about the weapons in your neighborhood," the interactive map drew plenty of heat from gun owners who felt their personal information shouldn't have been made public. The map had the slight potential to affect criminal activity, either by steering would-be burglars to safer, weapon-free households, or to give these same hypothetical opportunists a list of addresses from which to poach guns while their owners were at work.

Also troublesome was the inference made ever so lightly by the article's title: that weapons were dangerous, and by extension, so were their owners. The timing of the article was also problematic -- and intentional. The FOIA requests went out after the Newtown shooting, skewing the purpose of the info dump even further.

A red-dotted map indicating clusters of gun owners easily, under the circumstances, continued the connect-the-dots inference: with so many weapons around, surely the non-gun owning citizens of the Lower Hudson Valley had something to fear. In totality, it was a badly timed, name-and-shame piece that painted gun owners as ticking time bombs, opening with the story of a mentally disturbed man who had put together a large cache of unregistered weapons, "without any neighbors knowing" -- something no one would have had any interest in if he hadn't used one of his guns to shoot a neighbor in the head. Quotes on both sides of the issue are scattered throughout, but the implication was clear: guns are dangerous, whether in the hands of their rightful owners, or borrowed by murderers like Adam Lanza.

The question arises as to whether the Journal News should have published this information. Clearly, the gun owners knew (or should have known) their information was a matter of public record. But should it have been used in this fashion -- or at all? Their personal information was always a FOIA request away, but does that grant a press entity the right to tie this info into an agenda-loaded piece?

The answer, of course, is that the Journal News had the right to use it in this fashion, thanks to the information being of public record and the First Amendment. The paper has received tons of criticism for this piece, and rightfully so, but that's how free speech works. The response, an info dump on anyone involved with the Journal News, spearheaded by former lawyer Christopher Fountain, is also how free speech works.

Again, publicly available information was used to compile addresses, phone numbers, email addresses, Twitter/Facebook accounts, of Journal News employees, as well as various Gannett executives. Techcrunch refers to it as a "transparency arms race," granting the argument a bit of nobility it certainly hasn't earned. It's simply ugly eye-for-an-eye tactics that result in nothing more than each side of the issue becoming more firmly entrenched.

Both info dumps will have their consequences, in some form of harassment, most likely. Fountain's info dump more clearly paints the Journal News staff as villains, with the original piece leaving that on a more implicit level. Neither group involved has any true expectation of privacy, but both have claimed "victim" status. A followup post at the Journal News mentions that it has received threats along with the normal complaints, but that's something it clearly should have expected when it published a map that singled out gun owners for legal activity. (It should also be noted that the headline writers threw some slant into this post as well. The first headline, appearing at 8:39pm on Dec. 25th read "The Journal News/Lohud.com assailed for publishing map of permit holders." The newer headline, published 10:53pm, reads "Journal News' gun-owner database draws criticism.")

Fountain's response, while troubling in its own way, should also have been expected. Many people still labor under the illusion that their private lives are their own, while leaving so much exposed publicly via social networks like Facebook and LinkedIn, as well as by any number of government services. Failing that, there's always the phone book, which still publishes names and addresses of a majority of US citizens -- a service that is considered default unless the individual makes the effort to opt out.

The protections granted by the First Amendment will continue to generate ugliness that's often hard to defend. In this case, it opens a lot of people up to harassment and possible danger. People may decry "irresponsible" journalism, but if the First Amendment is to remain intact, that's going to remain a constant. The solution is always more speech, which can take many forms, many of them just as ugly as the original bit of controversial speech.

One of the striking -- and depressing -- features of the Internet today is the almost universal desire of governments around the world to rein it in through new laws. We wrote about one such attempt in the Philippines a couple of months ago, where the government is trying to bring in some particularly wide-ranging and troubling legislation. Although the Philippine Supreme Court put a temporary restraining order on the law, the Philippine government is not softening its stance, and has asked the court to lift the order. Its arguments are pretty worrying:

"there is always a presumption of validity that attaches to every legislative act"

Oh, really?

It also said the law only "regulates and penalizes" acts defined as cybercrimes like hacking, and does not prevent the petitioners from using the Internet and expressing their thoughts.

Well, that rather depends on how you define cybercrimes, of course.

The government said "traffic data" referred to in the Cybercrime Law is "non-content data" that consists of the origin, destination, route, time and date of the communication. It said that unlike content data, which is considered private, traffic data is an "auxiliary to the communication and is necessarily shared with a service provider who is a third party."

That is exactly the same erroneous argument used by the UK government to justify its Snooper's Charter. The problem is that some traffic data -- like destination Web addresses -- give considerable information about the content being viewed. For example, if people are visiting Web sites that are critical of the Philippine government, it's pretty clear what they are reading about.

The GMA News piece quoted above lists many other dubious arguments given by the Philippine government in favor of lifting the ban. Ironically, the way it dismisses or ignores the important issues raised by petitioners to the Supreme Court only serves to confirm the impression that the government is not really interested in achieving a fair and balanced solution here, but intends to push through its plans regardless.

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

We've written several times before about domestic spying being performed by the government agencies, most of which is performed under the protective guise of "national security" as part of the "War on Terror." The end result tends to be diminished rights rather than something more positive, like "terrorists caught."

The Electronic Privacy Information Center (EPIC) has been looking into the CIA's involvement in domestic surveillance, something the CIA is definitely not supposed to be doing.

Beginning in 2011, a series of investigative articles by the Associated Press ("AP") revealed that the New York Police Department ("NYPD") conducted extensive surveillance of Muslims and persons of Arab descent in New York, New Jersey, and elsewhere. The NYPD’s activities included photographing members of the Muslim community as they entered mosques, infiltrating Muslim student groups, and monitoring Muslim stores and businesses. According to the AP, the “police subjected entire neighborhoods to surveillance and scrutiny, often because of the ethnicity of the residents, not because of any accusations of crimes.” The AP also reported, “many of these operations were built with help from the CIA [Central Intelligence Agency], which is prohibited from spying on Americans but was instrumental in transforming the NYPD's intelligence unit after 9/11.”

This looks like the CIA is at the very least heavily involved with domestic surveillance, if not actually doing the surveillance itself. The "investigations" themselves are questionable enough even without the possibility of a departmental "misstep" by the CIA, generally consisting of paid informants infiltrating the Muslim community and amassing as much information as possible when not attempting to bait community members into saying something inflammatory.

This new "elite" NYPD agency has been given leeway to assemble a massive database on the Muslim community and its activities and, to date, has produced nothing in the way of useful leads. Despite this fact, the operations continue undeterred and everyone from the NYC police commissioner to various CIA spokespersons have acknowledged the CIA's ongoing "collaborative relationship" with the NYPD domestic spying program.

According to the CIA, the agency isn't performing the surveillance itself and is, therefore, staying within its legal boundaries.

In December 2011 the Associated Press described an investigation by the CIA Inspector General regarding the agency’s collaboration with NYPD. CIA spokesman Preston Golson acknowledged the existence of this investigation and stated that the agency's Inspector General concluded that no laws were broken and there was “no evidence that any part of the agency's support to the NYPD constituted 'domestic spying.”

In essence, the CIA aids with the spying, but doesn't actually perform the spying. Golson's statement in reference to the internal investigation is obviously meant to be the final word on the matter, but relies heavily on the public's credulity in regards to secretive agencies conducting in-house investigations whose results remain hidden from view. In that respect, Golson's statement failed miserably.

According to USA Today, “The revelations troubled some members of Congress and even prompted the director of national intelligence, James Clapper, to remark that it did not look good for the CIA to be involved in any city police department. Thirty-four lawmakers have asked for the Justice Department to investigate but so far that request has gone nowhere.” At a March 2012 hearing, Attorney General Holder told Congress “he's disturbed by what he's read about the New York Police Department conducting surveillance of mosques and Islamic student organizations in New Jersey.”

You know something has gone wrong when Eric Holder thinks you've gone too far. Golson's "everything's cool" statement notwithstanding, EPIC decided to look into the CIA's involvement with the NYPD's surveillance programs.

On March 28, 2012, EPIC submitted a FOIA request to CIA asking for:

• All documents related to the CIA Inspector General’s investigation regarding the agency’s collaboration with NYPD;
• All legal analyses conducted by the CIA Inspector General’s office regarding the CIA’s collaboration with the NYPD;
• All final reports issued as a result of the CIA Inspector General’s investigation;
• Any communications between the CIA Inspector General’s office and the NYPD regarding the agency’s collaboration with the NYPD.

Unsurprisingly, the CIA has been rather reluctant to hand over any of the requested information. So reluctant, in fact, that it now finds itself on the receiving end of a lawsuit filed by EPIC after "failing to disclose a single record." EPIC's complaint quotes the CIA as stating it was too busy to fulfill the requests because of a "substantial backlog." While that could very well be true, this is also information that the CIA would very likely prefer to not make public. It's also an excuse many other government agencies have used -- a built-in stalling tactic greatly aided by these agencies' preference towards only giving up information when forced to do so.

Obviously, it will be a long time before any information shakes loose from this internal investigation. EPIC still has to win the lawsuit before any "compelled" release of documents begins. There's also bound to be an appeal or two, along with the usual bureaucratic delays built into the process. And there's also the "state secret" wildcard, one that permanently removes documents from the public eye. Still, it's a worthwhile effort EPIC is making, one that will shed light on a very shady collaboration between the CIA and the NYPD, whether or not the results of this internal investigation are ever made public.

As I'm pretty sure I've mentioned before, I am exceptionally comfortable with profanity, and believe it's a form of free speech that should be protected. The right to say words does not end because of the interpretation of those words by someone else. That's why I cheered on Tim Cushing's piece on an SVSU student who used a vulgar poster to give his school just enough rope to hang itself from the irony rafters. There are certain situations that require use of vulgar words or gestures as a release, or even as the proper descriptive expression. For instance, let's say your neighbors are acting like enormous anuses while you're setting up your Christmas lights; what's the proper way to tell them what you think of them?

Well, if you answered "craft my Christmas lights into a giant middle finger pointed at my neighbors house", then give yourself a pat on the back because a court recently ruled that doing so didn't violate any laws and is protected free speech.

A district court judge rule this week that a Louisiana woman could hang her Christmas lights in the shape of a middle finger, as a nasty holiday “greeting” to her neighbors. Police initially threatened to arrest Sarah Childs for her illuminated display, but with the help of the ACLU, Child won her suit against the city.

That Mediaite summary is slightly exaggerated, because she didn't quite "win" the lawsuit yet. The judge just granted a temporary restraining order prohibiting police from stopping the display, with a full hearing to take place in the New Year. However, the judge does say it's likely that she's going to win:

The Court finds that Defendants' continued efforts to prevent Plaintiff from displaying her holiday lights will result in an infringement of Plaintiff's rights of free speech and due process, and that the Plaintiff has demonstrated a likelihood of succeeding in her argument that this infringement is impermissable under the First and Fourteenth Amendments of the Constitution.

Yes, this woman, who is my new personal hero, actually took this case to court because she really wanted to flip off her neighbors in the most festive manner possible. The story goes mostly as you'd expect. Childs put the lights up, was threatened with arrest, took them down...and then decided that arrest was worth it so she put up the giant glowing "bird" once more. The police showed up again, this time threatening to arrest Childs for violating the Denham Springs obscentity statute, which is a pretty ballsy threat considering the city doesn't even have an obscentity statute. That's where this gets really fun.

After she contacted the local ACLU for help with a lawsuit, the city officers issued her two unrelated tickets that attorneys call a “collateral attack”: one for obstructing the flow of traffic as she was walking down the street and another for disturbing the peace while singing a song about her fight with neighbors in her driveway.

An entire song about her fight with her neighbors, and she decided to sing it to them? My lord, if I were single I'd hunt this wonderful woman down so that we could spend a lovely weekend together cursing at nuns or something. In any case, the court ruled in her favor on free speech and due process violations, pending a full hearing in January, well after the holiday season.

The Charles Carreon saga continues, though it seems to be drawing to a close, with just some monetary issues to clear up. When we last left Carreon, he'd just been served by lawyer Cathy Gellis, who tracked him down in court, after he went through all manners of evasion to avoid being served... while still trying to get the blogger who was mocking him fired. If you don't recall, this case began soon after the whole legal dispute with Matthew Inman of the online comic The Oatmeal -- when Carreon also threatened a parodist blogger who was mocking Carreon. Carreon's threats were pretty direct, and promised to wait until all the attention had died down and to then sue. In response, the blogger filed for declaratory judgment that said he had not broken the law. While Carreon had dropped his lawsuit against Inman, he couldn't get out of this one, even as he tried his damnest to avoid being served.

After finally getting served, Carreon offered to "settle" the case, admitting that the blogger hadn't done anything wrong -- basically giving the blogger everything he wanted:

The court shall enter a declaration declaring that:

1. Plaintiff’s domain name “charles-carreon.com,” plaintiff’s use of the domain name, and plaintiff’s current manner of using his web site, do not violate defendant’s rights;

2. Plaintiff’s use of the domain name “charles-carreon.com,” in its current manner of use, is fair use and protected under the First Amendment, and does not infringe on defendant’s mark;

3. Defendant is not entitled to an injunction against plaintiff using the domain name “charles-carreon.com” or operating the Web site located at the URL “www.charles-carreon.com;” and

4. Plaintiff shall take a total money judgment inclusive of costs in the amount of $725, being the sum of the filing fee and service costs claimed.

The blogger in question then accepted the offer -- but there remained one final point of dispute. That $725 fee. The lawyers representing the blogger, Gellis and Paul Levy, have pointed out that Carreon's own actions in avoiding service actually resulted in significantly more costs that they bore, and they'd now like Carreon to pay up to the tune of $4,664.45. Basically, Carreon's own mess resulted in higher costs, and he's now trying to dodge this, just like he dodged service of the lawsuit.

He argues, basically, that since he made this settlement offer and the blogger has accepted the basic terms, everything is done, no more questions can be asked. In other words, in his mind "case closed, nothing to see, move on." Except that misrepresents the reality of the situation. As Levy and Gellis explain in their response, noting that the fees covered in the agreed settlement only covers Rule 4(d)(2)(A) fees (fees associated with service) and not Rule 4(d)(2)(B) fees (attorneys' fees). They point out that even the case that Carreon cites to make his case involved a settlement that explicitly called out attorneys' fees, wherease Carreon's own settlement offer only discussed costs, not attorneys fees, and the two are clearly treated separately and differently under Rule 4.

In Carreon's motion to avoid having to pay, he also pulls the "but I'm really, really sorry" card, combined with the "and people were so mean to me!" card. Levy and Gellis rip this to shreds:

Defendant’s opposition is accompanied by an affidavit in which he apologizes to the Court for imposing the need for proceedings connected with service by refusing to waive service. At the same time apologetic and defiant (such as where he declines to concede that plaintiff actually and properly sought waiver of service), Mr. Carreon suggests that he has suffered enough, that he has been vilified on the Internet and subjected to “a brutal onslaught,” and that the pursuit of this litigation reflect “exaggerated dedication.” This affidavit does not provide any valid basis for denying plaintiff’s claim for attorney fees.

It may well be that, in retrospect, defendant Carreon regrets his conduct; certainly the private email he cites in his affidavit was beyond the pale. Still, it is understandable that his own conduct provoked some public criticism. First, he sent a demand letter to Matthew Inman on behalf of a client claiming defamation, even though the client had no valid grounds to complain. Then, when Inman made fun of Mr. Carreon by starting a fund-raising campaign to raise the demanded amount as a donation to charity—and after that fundraising effort went viral—Mr. Carreon brought a frivolous lawsuit against Inman, against the ISP that hosted the fund-raising campaign, and against the American Cancer Society and National Wildlife Federation, the charities to whom Inman had promised to send the public’s donations. This is the conduct that prompted the outpouring of negative commentary to which defendant’s affidavit vaguely refer. And when plaintiff Recouvreur started an anonymous, satirical web site to comment about the controversy, Mr. Carreon threatened to sue both plaintiff and the company through which plaintiff had registered his domain name.

Although Public Citizen agreed to take this case because the litigation that Mr. Carreon was threatening related to several legal issues in which Public Citizen is interested, it hoped to avoid the need for litigation. Having supported Mr. Carreon’s position in a recent case with an amicus brief, it hoped to avoid the need to litigate by reasoning with Mr. Carreon privately. Before any papers were filed, Mr. Levy telephoned Mr. Carreon to discuss the legal issues, calling his attention to the legal reasons why Mr. Carreon’s claims could not possibly succeed, and then followed up the phone call with an enumeration of cases. It was in response to this effort to avoid litigation that Mr. Carreon responded with the strong threat to litigate, to string out litigation, to seek high levels of monetary relief, to delay filing suit for years, in the hope that Public Citizen would no longer be interested in representing Mr. Recouvreur by then, and to file in a jurisdiction that had not yet adopted the legal principles followed in the Ninth Circuit. In light of the fact that Mr. Carreon had already filed his frivolous suit against Inman, which was still pending (it was dismissed shortly after this action was filed, but not before forcing those defendants to incur substantial attorney fees), plaintiff and his counsel took Mr. Carreon’s threats seriously, and accordingly filed this action for a declaratory judgment of non-infringement. Mr. Carreon’s evasion of service, and his refusal to pay the expenses of service until this motion was filed, were simply a continuation of the pattern of abusing judicial process that created the need for this litigation in the first place.

As an officer of the Court, Mr. Carreon should have known better when he began his course of abusive conduct. Although Mr. Carreon now expresses regret that he chose not to execute a waiver of service, nor to “expose [him]self to service,” nor to pay the service expenses when requested, and that this pattern of conduct subjected the Court to motion proceedings in connection with plaintiff’s service efforts, such apologies do not excuse the extra work that his conduct needlessly imposed on plaintiff and his counsel. Plaintiff’s counsel tried to avoid the need to effect service, not only mailing waiver of service forms but also expressly informing Mr. Carreon, by email, that a waiver of service form was coming in the mail.... Counsel also tried to avoid the need to file this motion, by calling Mr. Carreon to meet and confer and discussing with Mr. Carreon the law that requires payment of service expenses. Mr. Carreon refused, first making spurious arguments,... and then resorting to bluster, this time threatening to sue plaintiff’s counsel for not acquiescing in his demands.

There's also an amusing bit in which Carreon argues that the method that Levy used to declare a reasonable hourly rate for his fees was rejected by a court. Levy, in response, points out that this is true... but that the ruling in question rejected the rates for being too low, and then points out that the rates requested are, bizarrely, "well-supported by Mr. Carreon’s own authority." Charles Carreon making the mistake of opening his own mouth too much strikes yet again, even at this stage of the game. Also, amusing, Levy points out that some of the reason why he's claiming 6.7 hours of his time is because (again) Carreon himself "made clear his intention to litigate each and every possible issue; hence the motion anticipated many possible arguments, including issues to which Mr. Carreon had alluded in explaining why he was not willing to stipulate to any award of expense for service."

In other words: the Carreon Effect is still going on. Even in almost completely capitulating to the key aspects of the case, Carreon can't help but dig his own hole deeper.

Despite increasing competition around the world, China remains the leader when it comes to finding ways to censor the online world. A few months ago, the site Tech in Asia listed no less than eight ways in which users of Sina Weibo, China's hugely-popular homegrown microblog service, can be penalized for "inappropriate" tweets. Now it seems it has come up with a ninth:

Users of Sina Weibo that mention things somewhat more controversial than cats or food might find their posts being delayed -- by seven whole days. The Twitter-like Sina Weibo is supposed to be a real-time social platform, but that no longer applies to posts that mention 'sensitive' terms such as the names of China's top leaders.

That's a worrying escalation, since it makes tweeting even uncontroversial stuff about contemporary politics, say, pretty pointless: who wants to read what somebody thought a week ago? If the Chinese authorities decided to increase their control of online postings even more, an obvious way would be to encourage all user-generated services to adopt this system. Pity that would pretty much be the death of real-time social media in China.

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

We've talked a lot about the concept of "copyfraud," the increasingly common activity of copyright holders claiming more rights than copyright allows. It happens all the time, but sometimes it's really egregious. Wired is reporting on how the super popular band Mumford & Sons CD, Babel includes a copyright warning label that says it's infringement to lend the CD to anyone:

“The copyright in this sound recording and artwork is owned by Mumford & Sons. Warning: all rights reserved. Unauthorized copying, reproduction, hiring, lending, public performance and broadcasting prohibited.”

You can see a scan of the back of the CD here, which includes the warning on the left: Here's a rotated and zoomed in image: While this is clearly copyfraud, the article makes a few important points. First, it's bizarre that they've included this tidbit in their warning, when the boss of the label they're on, Glassnote, has made it clear that "the fans really do come first and word of mouth is important." If that were true, you probably wouldn't lie to fans and tell them its illegal to lend out the CD.

However, the article raises a larger point concerning "first sale rights" and the Kirtsaeng case that the Supreme Court will be deciding one of these days. If the CD were made outside of the US, it's possible that Glassnote/Mumford & Sons could start legitimately banning lending, since first sale rights will no longer apply. Wired quotes copyright lawyer Andrew Bridges (you might recognize his name), who first called everyone's attention to this bizarre choice:

“If this disc was made in Mexico, then it may be that I don’t have the right to lend it to anybody under the plaintiff’s view in the Kirtsaeng case,” Bridges said. “That actually highlights the importance of the Supreme Court’s pending case.”

Of course, while the Wired article suggests this is a new thing, Sneeje helpfully points out that it's not that uncommon. And, if you look around, you can find the same terms on other albums as well, including by Roger Waters and Kanye West -- so it's not fair to blame Mumford & Sons specifically for this.

Spin Magazine claims to debunk the Wired article, also by pointing out that this phrase has been widely used for the past 20 years, and arguing that it's accurate in Europe, due to its directive on "rental and lending rights." Though, Spin's "debunking" deserves a bit of a debunking itself, since the "rental and lending rights" are specific to things like libraries. The specifics of the directive are that it applies to lending "made through establishments that are accessible to the public." The problem of course, with the simple terms used on the CDs, is that they make no such distinction. And though no one will enforce this against lending a CD to a friend, it remains a case of copyfraud, in which the public is being told that they cannot lend the CD due to copyright law, even if that's not accurate at all.

Whether the use of the term is new or not really doesn't much matter in the long run. Spin is right that it's not Mumford & Sons specifically that's the problem here (and it's not clear which CDs get this and which don't), but the inclusion of a claimed prohibition on lending still is a form of copyfraud and an attempted expansion of claimed rights.

After three key amendments that would have brought some oversight to the NSA's ongoing spying program were rejected last night, and the final such amendment was rejected this morning, there was little doubt that the Senate would move ahead with renewing FISA in its current and highly problematic form. Immediately following the rejection of the Wyden amendment, that's just what they did, voting 73-23 to extend FISA for another five years.

There was never really any chance of FISA not being renewed, but the proposed amendments would have added vital checks to the law, most of which seemed to be just common-sense—such as requiring a report to Congress on the program's privacy impact. With all these changes rejected, the renewal means another five-year virtual carte blanche for the NSA to collect data on US citizens under a secret interpretation of the law that the public is not allowed to see, without even providing an estimate on how many Americans have had their privacy violated.

Yesterday, we covered the rushed last-minute debate over the FISA Amendments Act, after which three critical amendments that would have brought some accountability to the NSA's spying program were all struck down. This morning, the fourth and final such amendment from Senators Wyden and Udall was also rejected, in a vote of 52 to 43, meaning FISA will now move forward in its current (and likely unconstitutional) form.

What was in the Wyden-Udall amendment? Even according to the White House's leaked talking points, which were strongly opposed to the amendments, it sounds like something that just makes sense:

What the Amendment Does: Requires the DNI to submit a report to Congress and the public on the impact FAA and other surveillance authorities have on the privacy of United States persons.

As Wyden has pointed out in the past, and re-iterated during debate this morning, not only is Congress unable to get an estimate from the NSA on how many American citizens have been spied on through FISA, he is unable to even get a yes or no answer as to whether such an estimate exists. Considering FISA is supposed to be subject to Congressional oversight, this seems like a pretty big problem, and one worth fixing before renewing the program for another five years. Instead, the Senate voted to wash its hands of the issue, despite solid evidence that the NSA is engaged in widespread spying on US citizens and at least one known instance in which the 4th Amendment was violated. So much for checks and balances.

Update: As expected, immediately following the rejection of this amendment, the Senate voted to extend FISA for another five years.

Want to know the White House's key propaganda lines for refusing to allow proper oversight into how the NSA is spying on us all? Well, sit back and read on, because the White House's "talking points" on why the Senate should reject four key amendments to try to roll back some of the excesses of the broad and massive secret program to collect tons of data on Americans, has been leaked. First, some background.

As we noted yesterday, there was a "debate" in the Senate concerning the FISA Amendments Act renewal, and four specific amendments that some Senators tried to add to it to make the renewal less problematic. If you haven't been following this whole mess, you can read back through our FISA Amendments Act stories here, but the short version is that this is the bill that "legalized" warrantless wiretapping -- and which (it has since been revealed) is likely being used by the NSA to collect reams of data on Americans, despite the bill's plain text suggesting that it can only be used on foreigners. At issue is that the FISA Court has apparently issued an "interpretation" of the bill, which allows for a very broad reading of the text -- so broad, that it likely contradicts what most people believe the bill says. Only a small group of people know what this secret interpretation is, and while sitting Senators and Congressional Reps can find out, most do NOT have staff members with the necessary clearance to explain it to them. For this reason, most of the people voting on this bill have no idea how it is being used, and sometimes argue that it is not being used in ways that it is almost certainly being used (i.e., to scoop up data on many Americans without warrants). These provisions -- the FAA for short -- were set to expire last year, but were renewed for one year, ostensibly to allow for "real" debate. Of course, despite having a whole year, no debate appeared, and instead we got yesterday's charade.

Four specific amendments to try to fix (or, at least, to minimize the damage) were proposed. The EFF has a pretty quick rundown of the four proposed amendments. The White House has been urging the Senate to reject all of them and to extend the FISA Amendments Act for five more years with no questions asked. Three of the proposed amendments were already rejected last night. This morning, a short debate and then a vote will progress on the last, the Wyden-Udall amendment. Even though the other three have already been rejected, we'll explore the talking their points too, but let's start with the talking points on the Wyden-Udall amendment. Here's the White House summary:

What the Amendment Does: Requires the DNI to submit a report to Congress and the public on the impact FAA and other surveillance authorities have on the privacy of United States persons.

That's a fair assessment and seems perfectly reasonable. Here's the EFF on why this is important:

Sen. Ron Wyden, one of the most ardent defenders of civil liberties in the Senate, has been asking the NSA for months for information on how the FISA Amendments Act has impacted Americans.

The NSA has so far refused, yet, as the New York Times reported in 2009, we know the NSA was still intercepting domestic communications in a "significant and systematic" way. We also know the secret FISA court ruled, on at least one occasion, that the government had violated the Fourth Amendment when conducting surveillance under the FAA. Yet the NSA has rather unbelievably claimed releasing the number of Americans whose privacy has been violated would violate those same Americans' privacy.

Ron Wyden's amendment would force the NSA to come clean and give a general estimate of how many Americans have been affected by this unconstitutional bill, and finally give us information Americans deserve.

In addition, another Wyden amendment would clarify that the acquisition of American communications is prohibited without a warrant. Sen. Wyden has accused the government of conducting "backdoor searches," whereby the government collects communications of foreign individuals talking to Americans, but later goes back into the government's database of intercepted communications and reviews the Americans' communications. Sen. Wyden hopes this clarification to the law will help guard against further intrusive spying on American communications.

So what are the talking points from the White House for why this is a bad thing?

• The Administration opposes this amendment. The goal of this amendment is to obtain an estimate of the number of U.S. persons' communications that may have been collected. Two independent inspectors general have determined, and reported to Congress, that it is not feasible to provide actual numbers or estimates. They also found that an effort to provide such numbers by deliberately trying to identify U.S. person information would adversely affect the privacy of any U.S. persons whose incidentally collected communications may exist within the collected data.
• Representatives of the Intelligence Community have briefed the Judiciary and Intelligence Committees in more detail as to why it is not feasible to provide such numbers or estimates and stand ready to answer questions from other Members in a classified setting.
• FAA contains significant privacy protections for U.S. persons, to include extensive reporting to Congress to allow Congress to assess the privacy impact of FAA on U.S. persons.

Yes, the same bullshit we've heard before. Telling Congress how many Americans the NSA spied upon using the FAA (despite the NSA only having a mandate to watch foreigners) would somehow violate the privacy of those Americans. That is, to put it simply, insane. What they almost certainly mean is that they've collected such a large treasure trove of information, much of which they haven't actually gone through, that to estimate how many people's info was collected would require actually looking at all that data collected, which they're not supposed to do. This, still, is insane -- as it basically reveals the fact that, contrary to what most people think, and contrary to the plain language of the bill, the NSA is almost certainly using the FAA to scoop up communications on huge swaths of the American public. This is why Senator Wyden keeps insisting that the public -- and members of Congress -- would likely be shocked to find out the truth here.

The idea that it is "not feasible" to come up with a number is silly, however. There are ways to estimate these things, and it's nonsense that they won't provide an estimate. It certainly would not compromise security to admit that. It might just compromise the fact that the NSA and the administration are abusing the FAA to spy on tons of Americans.

The "briefing" members bit is also fairly bogus. We're talking about the interpretation of a public US law. That shouldn't require a Senator to go into a secret room to get a secret briefing. But, more importantly, as mentioned, most Senators simply do not have staff with the necessary clearances for such a briefing -- so while a member could take the initiative to learn this info, they are both unlikely to actually do so and if they do, unlikely to have an expert on hand who can help explain what it all means.

Finally, the argument that there are "significant privacy protections" is belied by the fact that the NSA has already been called out for violating the 4th Amendment under this act at least once. That, alone, should call for further scrutiny, but supporters of the FAA are twisting this around to claim that "the system works." As Julian Sanchez notes, the existing oversight might catch accidental abuse, but cannot and will not catch systematic abuse, which is what it appears is happening.

So these "talking points" hardly address the problem, and only serve to further mislead, as the White House looks to protect its own administration's domestic surveillance activities. When President Obama was originally running for office in 2008, he campaigned against these provisions (before eventually voting for them). Apparently, that campaigning was a flat out lie. Now he's not only supporting the provisions, his administration is being willfully misleading concerning what they mean.

Moving on to the (already rejected, but still important) Merkley Amendment. This one involved requiring that secret FISA Court rulings that interpret the FAA be made public (in redacted form, if necessary). This seems eminently reasonable. Who could be against that? Well, the White House, for one. Here's why:

• We oppose this amendment. The Executive Branch works diligently to ensure Congress is fully informed of the intelligence collection operations under FAA, notwithstanding the need for the Executive Branch to carry out certain sensitive intelligence activities in a classified manner.
• As part of Congress' intensive oversight of FISA activities, the Intelligence and Judiciary Committees receive, in classified form, all FISA Court opinions that include a significant interpretation of FISA provisions.
• We have committed to reviewing FISC opinions for release to the public with necessary redactions to protect national security equities and that effort is ongoing.
• This process must, by necessity, be undertaken with great care. In many cases, classified information is so intertwined with the legal analysis that redacting the classified information leaves a document that lacks any meaningful analysis. Because the Executive Branch is already undertaking a review of the FISC opinions for possible public release, we believe this amendment is unnecessary.

This is completely bogus, again. As we noted yesterday, going against this amendment is like arguing that we should all be able to interpret the Constitution with just the document itself, and all Supreme Court rulings that work out the nuances and interpretations should be kept secret. The idea that the Executive Branch makes sure that Congress "is fully informed of the intelligence collection operations under the FAA" is both laughable and meaningless at the same time.

Just this very debate -- and this very document -- prove that the White House isn't about keeping Congress "fully informed" but about pulling the wool over their eyes with misleading statements and kinda/sorta true in the letter, but bogus in the spirit, arguments. Members of Congress have flat out said that the FAA does not impact Americans' communications at all, when that it's known to be absolutely false. Also, the fact that the administration may provide classified briefings to Congress is, again, besides the point. We're talking about allowing the public to understand the secret interpretation of a law that impacts many Americans directly (and in which that interpretation is almost certainly contrary to the plain language and public belief about the bill), and the White House falls back on this "well we'll tell you in secret" argument?

The idea that the administration has committed to reviewing FISA opinions for public release is equally laughable. This administration has been one of the most secretive on record when it comes to exposing this kind of information, all while patting itself on the back as being the most transparent.

Moving on, we have the rather basic Leahy Amendment that shortens the date on which this extension expires from 2017 back to June 1 of the 2015, to basically move in the walls for the next time we'll have this debate in the closing days before "OMG TERRORISTS WILL DESTROY US ALL!!!@!@" again. Rather than simply punting the ball on this issue as far down the field as possible, Leahy is trying to force at least some review within the term of Obama's presidency, rather than long after it's over. This, too, was voted down so the longer timeline stays in place. The White House is pleased, for a whole bunch of completely bogus reasons:

• We support the House passed sunset date of 2017 and oppose any effort to shorten the sunset date to 2015. The extensive congressional and judicial oversight and the strong track record of compliance supports an extension longer than, not shorter than, the original authorization.
• Aligning FAA with expiration of provisions of the Patriot Act risks confusing distinct issues.
• Frequent Congressional and public debate on intelligence authorities poses a greater risk of inadvertent disclosure of classified information.
• No additional reporting requirements are necessary. Section 702 of FISA is a well calibrated statute that provides for ample oversight by all three branches of government. This oversight framework ensures robust protections for the privacy and civil liberties of U.S. persons.

This one should just make people angry. Is the White House really arguing that Congress is too stupid to hold the specifics of the FAA separate from the specifics of the wider Patriot Act? If they're confused by those issues, then they shouldn't be in this job. Period.

That second point is the real doozy. Basically, the White House doesn't want this debate, because Senators who know what kind of scam they're pulling might (*gasp*) accidentally reveal too much. So, let's just not talk about it at all. And let the NSA keep abusing it. Because, otherwise, we might actually find out about the abuse. As for the "oversight" claim, I think we've already covered just how completely bogus that claim really is.

Finally, there's the Paul amendment, which serves to reinforce the basic principles of the 4th Amendment, in reiterating that all communications are subject to the 4th Amendment's limitations on searching. Currently, many in law enforcement rely on some really questionable precedents to argue that people don't really have an "expectation of privacy" in their email. It's disingenuous in the extreme. This amendment got voted down by a whopping 79 to 12 votes. I'm sure that pleased the White House, who argued the following:

• We strongly oppose this amendment as it will effectively repeal the FISA Amendments Act and other federal laws by requiring a probable cause determination to obtain information on our foreign adversaries located overseas. As such, it would overturn years of federal law.
• This proposed amendment would severely limit the effectiveness of law enforcement, authorities at all levels of government. For example, Governments rely on legal tools such as grand jury subpoenas. The use of such tools would be prohibited under the amendment if that information is drawn from almost any system of records.

In other words, they're admitting that the FISA Amendments Act clearly tramples the 4th Amendment and allows for widespread surveillance of Americans without a warrant. Also, the Constitution isn't about making life easier for law enforcement. It's about the opposite. It's specifically about making it more difficult for law enforcement, because that's how a free society functions, by telling its law enforcement officials that they can't just snoop on everyone, but need real oversight in the form of a warrant. So to argue that this might make the NSA's job a bit harder isn't just not compelling, it's not even a legitimate reason, because it's arguing that the government should, effectively, be allowed to do whatever the hell it wants if it "makes law enforcement's job easier."

It's clear that the FISA Amendments Act is about to be extended, and the White House, even with completely bogus talking points, will prevail. But, reading through these talking points is just highlighting the depths to which our government will stoop to make sure they can continue to trample the basic principles of the 4th Amendment.

It never stops. What the entertainment industry fails to get in one place, it just looks to get implemented in the law somewhere else, so that it can point to that as an "example" for others to follow -- and then often use questionable "free trade agreements" to force through similar rules. Earlier this year, we noted that Colombia rushed through a SOPA-like law after signing a free trade agreement with the US. This despite growing evidence that countries who ratchet up their IP laws don't see much benefit from doing so.

Now we're hearing stories that something similar may be happening down in Peru, where there's been an ongoing (if odd) debate about how to deal with copyright infringement. Apparently, there are growing concerns that the crux of the bill will be to put the liability on third parties, including ISPs, search engines and others, with the expectation that by dumping the liability on them, they'll somehow magically stop piracy. It's the same old story: because the entertainment industry refuses to adapt its business models, it wants to rope in third parties and make them legally liable for propping up the failing models. Of course, all that actually will do is lead to much greater costs for users, and will make it much harder for internet companies to operate in Peru.

Hopefully, the government there doesn't go down this particular path -- especially since there are reports that the industry is hoping to use what comes out of Peru as an "example" of what other countries in the region should do as well.

Techdirt has been covering the UK's long-running saga of attempted copyright reform for some years. Most recently, we wondered whether even the Hargreaves Review's moderate suggestions would survive in the face of the usual frenzied lobbying from the copyright industry. Rather remarkably, they have, and the UK government has published a list of the legislative changes it proposes to make (pdf).

These are welcome but hardly revolutionary -- more a matter of dragging UK copyright law into the 21st century. They include:

a private copying exception that lets people make copies of content they have bought, but only for their personal use;

simpler rules for using copyright material in the education sector;

permission for the limited quotation of copyright works for any purpose, as long as the source is acknowledged;

a limited copying exception for parody, caricature and pastiche;

a research and private study exception;

permission to use published research results for data analysis, but only if it is for non-commercial purposes;

permission for people with disabilities to obtain copyright works in an accessible form if there is none on the market;

archiving and preservation exceptions, designed for museums, galleries and libraries;

wider exceptions for public bodies to share some third-party information online.

The government document provides plenty of background information on its thinking, and why it chose to make the exceptions it did. Along the way, it offers some fascinating insights into the submissions from the copyright companies, and how they attempted to stave off change once more. For example, perhaps aware that it would be unable to convince the UK government not to bring in a range of minor exceptions for the public, the copyright industry seems to have adopted a fallback position based around licensing contracts. Here's the issue:

One of the arguments made by creators and rights holders in consultation was that licensing should always preclude or override any exception to copyright: if there is a licence then people should purchase it.

If that reasoning were allowed, it would effectively gut all the new exceptions, since they could always be overridden by licensing contracts imposed on users. Apparently, some went even further:

Some responses to consultation suggested that allowing unlicensed use of works when a licence was available was necessarily a violation of the [Berne] three-step test. The Government believes this view to be incorrect, as the requirement of the three-step test is that the law "does not unreasonably prejudice the legitimate interests of the author", or conflict with the "normal exploitation" of the work.

As the UK government pointed out:

To argue that all exploitation of a work is "normal exploitation" is to reduce the three-step test to two steps, which is manifestly not its intent. Furthermore, a licensing override is potentially inequitable to users: some could be forced to buy licences for uses much broader than the permitted act in question, while others -- where there was no licensing scheme in place -- would pay nothing.

On the other hand:

users and institutions serving users felt that a failure to address the possibility of contract override could and did render permitted acts meaningless, and their benefits wholly or partly unrealised. They argued this was a problem now. Consumers were not in any position to negotiate the terms on which copyright goods were sold or licensed, and even larger users such as institutions argued that negotiation was so resource-intensive as to be effectively impossible as a general rule; prices were not transparent and there was little or no choice of supplier.

Fortunately, the UK government agreed:

to the extent that is legally allowed, the Government will provide for each permitted act considered in this document that it cannot be undermined or waived by contract. This may include a prohibition on licensing override of permitted acts, or restricting the terms on which licensing may impact on permitted acts. The aim is not to establish contract as superior to permitted act or vice versa, but to ensure licensing does not restrict acts that are beneficial to society as a whole.

However, there is one area where the proposals fall short: dealing with DRM, or "technical protection measures" (TPM) as the document puts it. The problem is that DRM, like contracts, could easily block many of the new exceptions that the UK government is proposing. Unfortunately, European law does not allow the UK government simply to grant users the right to circumvent DRM in such cases. Instead, there is an incredibly clumsy and inconvenient procedure that must be followed:

In the UK, if a person cannot carry out a permitted act due to a TPM, and the rights holder has refused to provide a 'workaround', the mechanism used is that a user may issue a notice of complaint to the Secretary of State (SoS). The SoS can issue 'directions' to ensure that the permitted act can be carried out.

In other words, if you want to make a backup of an ebook, or transfer a music file to another medium, but are stymied by DRM, you have to write directly to the minister concerned, and ask him or her to contact the copyright holder to provide a copy in some way. Convenient, no?

This ridiculous approach, which will inevitably be ignored by most people as they continue to turn to "alternative" channels to access material they have paid for, is a consequence of the 2001 European Copyright Directive (the European equivalent of the DMCA), which places limits on what the UK government may do in the area of TPMs.

The fact that the UK government is being forced to adopt such a manifestly impractical solution to DRM's override of the proposed copyright exceptions is a stark reminder of the effect other treaties like ACTA and TPP would have, since these too will oblige all signatories to adopt certain minimum legal requirements for copyright and other areas whether or not they think them reasonable or wise. Indeed, it's clear that the copyright maximalists have shifted their attention to such multilateral treaties because they neatly circumvent democratic discussions that can happen within individual nations, substituting instead secret negotiations behind closed doors that members of the public can't even follow, much less influence.

Given these constraints, the UK government has perhaps done the best it could as far as DRM is concerned. The same could be said about the rest of the proposals. None of them is radical or revolutionary, but the fight that it has taken to get them is a reflection of the extraordinary success the copyright companies have had in blocking even the mildest attempt to update copyright legislation in the UK and make it fit for the digital age.

The UK government has stated that it wants to bring the new exceptions into force by October 2013. After all these years, that day cannot come soon enough.

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