It's getting to be that time again, when Mickey Mouse gets closer and closer to the public domain -- and you know what that means: a debate about copyright term extension. As you know, whenever Mickey is getting close to the public domain, Congress swoops in, at the behest of Disney, and extends copyright. Copyright maximalists make a variety of arguments as to why such copyright extension is necessary. We've long argued that, even if you believe that longer copyrights are good, at most they should only be applied going forward, rather than retroactively. After all, the stated defense of why we have copyright in the first place is to create the incentives for creation -- and once that work has been created, it's clear that whatever incentive there was -- whether via copyright or other external incentive -- worked just fine. Extending a copyright on an already existing work, creates no new incentives for works already in existence.

However, maximalists have come up with a typical list of reasons for why they believe that copyright should be extended, and we should expect to start hearing those arguments made public again shortly, as the debate reemerges. Among the usual arguments are that (1) no one will produce those works any more, because the incentive is gone without the ability to exclude competition, and thus we'd have "under-exploited" works. (2) Quite contradictory to the first item, that because there's no way to exclude, the content will be "over-exploited" because now everyone can use it, and thus the works will be everywhere, diminishing the value of the works. (3) That the works will be "tarnished" because once in the public domain, people will take the characters and... do bad things with them -- whether it's producing significantly inferior versions, or creating derivative works that somehow take away from the value of the original (such as by putting Mickey Mouse into pornographic situations).

Some new empirical research suggests that... none of these arguments are even close to being supportable. At all.

Michael Scott points us to the research by law professors Christopher Buccafusco and Paul Heald entitled Do Bad Things Happen When Works Enter the Public Domain?: Empirical Tests of Copyright Term Extension. The simple answer is, no, not at all:

Our data suggest that the three principal arguments in favor of copyright term extension—under-exploitation, over-exploitation, and tarnishment—are unsupported There seems little reason to fear that once works fall into the public domain, their value will be substantially reduced based on the amount or manner in which they are used. We do not claim that there are no costs to movement into the public domain, but, on the opposite side of the ledger, there are considerable benefits to users of open access to public domain works. We suspect that these benefits dramatically outweigh the costs.

How do they show this? Rather creatively, by looking at audiobooks for the years in which most works are in the public domain, and the same period of time after works are still under copyright: so they looked at the audiobook versions of best-selling books from 1913 to 1922 as public domain works, and similarly audiobooks of the best-selling books from 1923 to 1932 for similar works that were still under copyright. They did part of the research on all such works, and part on 20 works from each group that were deemed "durable" works by a group of experts -- meaning books that are still popular and read today (such as James Joyce's The Portrait of the Artist as a Young Man (public domain) and William Falkner's The Sound and the Fury (not public domain)). Why audiobooks? Because audiobooks are a derivative work off of the original, which lets them also compare the impact on derivative works.

The results were pretty clear. Works in the public domain were much more available, but certainly weren't flooding the market -- so there's little to support the "over-exploitation" argument. They were generally (though not always) cheaper, but not by a huge margin. And there were still "professional" versions of the reading, so the "under-exploitation" argument fails as well. In terms of quality and tarnishment, they ran another series of experiments comparing professionally read ebooks to amateur read ones, and again found nothing to support that public domain works are treated poorly.

Our data provide almost no support for the arguments made by proponents of copyright term extension that once works fall into the public domain they will be produced in poor quality versions that will undermine their cultural or economic value. Our data indicate no statistically significant difference, for example, between the listeners’ judgments of the quality of professional audiobook readers of copyrighted and public domain texts.

In the end, the full study is worth reading, but the results are clear. The so-called "harm" of works falling into the public domain does not appear to exist. Works are still offered (in fact, they're more available to the public, who we're told is what copyright is supposed to do), there are still quality works offered, and the works are not overly exploited. So what argument is there left to extend copyright?

Your body is a narc. If you use drugs, your body will always be willing to turn over that information to the appropriate authorities. No one even has to question you. We've all run into someone whose bleary and bloodshot eyes indicate they're stoned or drunk. (Or, very often, both.) A few strands of hair can detail a "lost weekend" with far more clarity than your acid-etched brain.

But, by a large margin, the most popular way to determine recent drug use is every employer's favorite: urinalysis. A couple of ounces of waste byproduct will sell your still-jobless ass out faster than that 14-year-old you sympathetically sold a dime bag of weed. Your body cheerfully fills your bladder full of self-incriminating fluid several times a day, forcing you to excrete damning evidence repeatedly.

Barring a random drug test or pre-employment screening, most of this evidence goes straight down the toilet, much like the half-dozen other baggies did in response to some unexpected door banging. Previously, this would have been the end of the line.

Not any more. News comes back to us via Bruce Sterling that researchers in Norway are sifting through sewage with the thoroughness of potential employers, looking for drug usage patterns amidst the detritus.

The Norwegian Institute for Water Research (NIVA) in Oslo and the Mario Negri Institute in Milan led this research initiative, directly collaborating with 11 European research institutes. Raw sewage samples from 19 large European cities were collected by the participants of the study during a single week in March 2011 and analyzed for the urinary biomarkers of cocaine, amphetamine, ecstasy, methamphetamine and cannabis. The total amount of the drugs used by inhabitants of each of the 19 cities was measured and then the results were adjusted for population size.

Fun stuff, I would imagine. (And that's as close to analyzing raw sewage as I care to get -- the imagination level.) Sifting through the murky, anonymous "data" running through the sewers has given the researchers a clearer picture of actual drug use patterns than can be put together using existing methods. The usual methods, police and customs drug seizure records and hospital admission data (possibly including some records of seizures), are combined with other incomplete data sets like questionnaire-based studies. This leaves a few holes in coverage which these researchers believe they can fill with human waste.

"There will always be some uncertainty about the reliability of the results of questionnaire-based studies," he [Dr. Kevin Thomas] said. "Our research approach based on sewer samples of European cities however, yield very accurate and dependable results on the total amount of drugs used. Through sewer research, we can determine how big the drug market in a city is. We can also quickly measure changes in consumption over very short time, such as after a police raid or a customs seizure. Our approach is applicable anywhere. With the right financing we have the potential for the first time to better understand the hard facts about illicit drug use worldwide," Thomas adds.

This would be some interesting data. Measuring dips in usage (or a lack thereof) after a major seizure would certainly help test the efficacy of current anti-drug policies. Of course, major raids could result in a spike of drug content, albeit drugs untainted (yeah -- I'm using that word) by a ride through anything more complicated than a swirling toilet bowl.

Here's what the researchers have found so far, after roaming the sewers of Europe:

Cocaine use was higher in Western and Central Europe and lower in Northern and Eastern Europe. High per capita ecstasy loads were measured in Dutch cities, as well as in Antwerp and London. In general, cocaine and ecstasy loads were significantly elevated during the weekend compared to weekdays. Per capita loads of methamphetamine were highest in Helsinki, Turku, Oslo and Budweis, while per capita loads of cannabis were similar throughout Europe.

Those somewhat familiar with European drug culture may find this to be a little unsurprising. (But not me -- I'm totally acting shocked about these findings.) Weekends are for partying. Anything goes for the Dutch, but especially E. London is still rave central for England. Weed is universal. Meth is nearly as popular. And coke is still for the rich (or at least, the richer) kids.

A followup project researching U.S. cities is underway with results expected next year. I'd be very interested in checking that one out, if only to confirm my suspicion that most Midwestern bathtubs are connected to purloined lab equipment, rather than functioning drainage systems.

We were just reporting on a hospital tech that declined to seek a patent for his creation, laughably stating that there are more important things than money (what a buffoon). He serves as a nice contrast to the wonderful world of patent trolls. One man is trying to help people and thinks that's more important than patents, while patent trolls are trying to leech off of producing entities and think that there is nothing more important than the patent (except perhaps the blood of small kittens or something). Often times they don't bother to produce anything, instead vampiring off of actual...you know...businesses.

Reader dfed alerts us to one such vampiric occasion, in which a non-producing entity patent troll is suing the developers of X-Plane, a rather innovative flight simulator. Uniloc has filed (pdf) for infringement on a patent, (6,857,067) for a "system and method are provided for preventing unauthorized access to electronic data stored on an electronic device." If the Uniloc name sounds familiar to you, you may remember when we wrote about it suing Minecraft (over the same patent) with such fervor that its lawyers couldn't be bothered to spell the game's name correctly. This patent was filed back in 2001, after, as X-Plane developer Laminar Research notes, several other software companies prior-arted all over this patent.

In 1988, FlexNet used a system to check a central server for permission to run a computer program. In 1989, Sassafras developed KeyServer, a computer program that checked with a central server for permission to run a program only if it had been purchased. In 1999, a program called “Clearcase” checked with a central server for permission to run a program only if it had been purchased. (Link here and instructions here.)

Laminar Research initially wrote a blog post on their site posing the same questions I imagine many victims of patent trolls have like whether they should be doing business in the United States. Such wonderful consequences our patent system produces. They were also initially seeking donations to fund their defense, which they were advised would cost roughly one and a half million dollars. Fortunately, because Uniloc is a patent troll, they also sued 9 other software developers and all the defendants are banding together to share the costs of defending themselves.

But that isn't the point. The point is that they shouldn't have to be in this position in the first place. For these developers to have to defend themselves in costly litigation against a company that can't be bothered to produce anything beyond a patent suit for something used years before its filing is a burden in direct conflict of the stated purpose for patents to begin with. I can't explain the silliness of this better than X-Plane's developer did on his site.

When I explained this to my Mom, she listened to my entire speech on Unilocs’ Lawsuit against me, my ideas on patent and litigation reforms, my thoughts on Uniloc and the lawyers representing them, and the total lawsuit cost of over $1,500,000, 3 years of stress to me and my wife, and the possible loss of a grandchild to her, and all she could stammer was “I don’t understand… what did you do that is WRONG?” All I could really answer was: “Well… I wrote a flight simulator for Android”.

And producing that software is supposed to cost the producer over a million dollars? What a joke.

Some people freely admit that they have trouble boiling water when it comes to cooking techniques. But some seemingly simple tasks aren't so easy to do if your standards are set high enough. The proliferation of cooking shows doesn't quite help because every TV chef has his/her own way of creating the same dish -- so there's no consistent method. Here are just a few examples of some "easy dishes" to prepare.

• A perfectly fried egg is cooked in a small pool of olive oil over medium-high heat. But in this particular demonstration, the perfect egg might be a bit more runny than some people like their eggs. [url]
• Freezing water might not sound like a tricky task, but if you want optically-clear ice cubes without any annoying bubbles or haziness in them -- there are a few tricks to it. When water freezes slowly, fewer air bubbles get trapped inside -- so cool your water down slowly in an insulated container. [url]
• There are plenty of tips on how to properly cook a hard boiled egg. Start with room temperature eggs, cold water and remove them from heat about a minute after the water boils... but there are no guarantees on how easy those eggs will be to peel. [url]

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

Well, it looks as if all of Bruce Lehman's lobbying has possibly paid off. Lehman, the author of the DMCA and the lobbyist for the Artists Rights Society, began floating the idea of a resale royalty for visual artists, following in the footsteps of other countries who have allowed visual artists to collect royalties on any reselling of their art -- basically meaning they get paid again every time anyone resells their artwork. The US Copyright Office is now accepting comments on the proposed Resale Royalty Right.

The Copyright Office has published a Federal Register notice requesting written comments on how current copyright law affects and supports visual artists and how a federal resale royalty right for visual artists would affect current and future practices of groups or individuals involved in the creation, licensing, sale, exhibition, dissemination, and preservation of works of visual art. Specifically, the Office seeks comments on the means by which visual artists exploit their works under existing law as well as the issues and obstacles that may be encountered when considering a federal resale royalty right in the United States.

The full summary goes into further detail: 

The royalty originated in France in the 1920s and is in general practice throughout Europe, but is not part of current United States copyright law. Under the Copyright Act (the “Act”), 17 U.S.C. 101 et seq., visual artists, like other authors, are provided a bundle of exclusive rights, including rights to reproduce, distribute and create adaptations of their works. These rights, however, do not affect the disposition of the original work of authorship. Instead, the first sale doctrine, codified in 17 U.S.C. § 109, generally permits the lawful owner of a copyrighted work “to sell or otherwise dispose of the possession of that copy” and to “display that copy publicly . . .” without the authorization of the creator.

The Copyright Office recognizes the right of the first sale before pointing out the seeming disparity between other artists (musicians, authors, filmmakers) who earn money with every copy sold and visual artists, who only earn money on the first sale. 

A question is whether the system is as advantageous for certain artists of visual works. For some artwork, where the primary financial benefit may be through the sale of the original work rather than multiple copies, the creator may receive less financial benefit from the work than do subsequent collectors or other downstream entities that are able to take advantage of the increase in the value of the artwork over time.

The official summary goes so far as to refer to this difference as a "perceived inequity," which is exactly what it is: perceived. Rewarding the original artist on future sales of his or her art, once it has been sold by the artist to another individual, turns these royalties into an analog of the capital gains tax. (Of course, the capital gains tax isn't collected when someone loses money, but this royalty plan would collect on losing "bets" as well.) Those who work in the visual arts field might feel like they've been given the short end of the royalty stick, what with other artists collecting royalties on every copy sold, but their art generally comes with a higher entry fee. 

If you look at this in reverse, musicians don't receive a cut of the sales price on any rarities in their catalog or get a cut of used sales. Neither do authors or filmmakers. And it's not as if visual artists can't sell prints or commission reproductions to increase the income of each piece of art produced. Then there's the fact that as an artist's work increases in value, his or her new work should also increase in value, allowing them to make more money per piece sold.

Compare that to authors or recording artists. As they get more famous, they might be able to demand bigger advances or sell more copies of their albums, but it does nothing to increase the price of an album or book. U2 might be the biggest band in the world, but each copy still sells for $10-20. Visual artists might sell early pieces for less than $100 but should they become famous, the price per piece might edge up into the "millionaire" tax bracket. The other downside to implementing a resale royalty on visual art is that it disproportionately harms new artists. By raising the price and difficulty level of reselling a piece, investors will likely purchase fewer unknown works and concentrate instead on proven, incumbent commodities. 

The key word in this discussion is "perception." It seems unfair because no artist can expect sell a few hundred sculptures or paintings while authors and recording artists sell thousands of individual units. But attempting to level a playing field composed of apples and oranges by putting the artist between purchasers and their right of first sale isn't going to "fix" anything. This will just add another layer of IP-related bureaucracy to an already severely convoluted system. 

Then there's this: California passed a resale royalty law in 1977 affecting any artwork sold in California or sold anywhere in the world by a California owner. To say that it was anything approaching a "qualified success" would be stretching the definition of that term to the breaking point:

Enforcement of California's law has been spotty over the last 35 years, according to an opinion issued on May 17 by Judge Jacqueline Nguyen, a judge on the 9th Circuit Court of Appeals who was sitting by designation in U.S. District Court in Los Angeles. Even though artists all over the country qualify for resale royalties, only about 400 painters and sculptors have received a total of $328,000 in resale royalties since the Resale Royalties Act took effect. A 1986 survey of Bay Area artists found that dealers frequently refused to comply with the law when artists asked about the identity of new owners or resale prices. For the big auction houses, Sotheby's and Christie's, California's law wasn't a big deal.

As could be expected, dealers simply routed around this legal speedbump. When a group of artists filed a class action suit against the auction houses, the entire law was tossed out as unconstitutional.

The judge agreed with lawyers for the auction houses (Skadden, Arps, Slate, Meagher & Flom for Christie's; Morrison & Foerster and Weil, Gotshal & Manges for Sotheby's) that California's law violates the Commerce Clause of the U.S. Constitution because it's an attempt by one state to control commerce outside of its borders. "Under its clear terms, the (Resale Royalties Act) regulates transactions occurring anywhere in the United States, so long as the seller resides in California. Even the artist -- the intended beneficiary of the CRRA -- does not have to be a citizen of, or reside in, California," Nguyen wrote. "For these reasons, the court finds that the (law) has the 'practical effect' of controlling commerce 'occurring wholly outside the boundaries' of California even though it may have some 'effects within the state.' Therefore, the (law) violates the Commerce Clause."

One has to wonder whether the recent rejection of the only resale royalty law in the US has anything to do with the sudden push for a nationwide act. Certainly states won't be able to enact their own versions without running afoul of the Commerce Clause. Placing the entire nation under the same royalty legislation would remove this constitutional roadblock, and with a majority of European countries operating under a droit de suite directive, it would also trim down "venue shifting" options for those wishing to avoid paying the royalties. It also should be noted that Congress has declined to add resale royalties every time it has reconsidered the copyright statute.

A quick postscript: The Senators behind this bill (Herb Kohl [WI] and Jerrold Nadler [NY]) are trying to "fast track" the legislation, opening it up for comments for only 45 days, rather than the usual 90. As the bill is worded now, the resale royalty would only apply to auction houses and not private sales through dealers. 

This one is from a week ago, and a bunch of you submitted it (thoughTim K gets the hat tip for being first), but just getting around to it now. Apparently, a woman named Paula Asher, who hit a car while driving under the influence, was ordered by the judge in the case to delete her Facebook account, after she typed the following status message on her Facebook page:

"My dumb bass got a DUI and I hit a car...LOL"

The judge seemed to take the "LOL" statement literally -- that she was "laughing out loud" at her drunk driving accident -- and ordered her to delete her Facebook account. She then ignored that order, leading to a contempt of court charge and jail time. I have no problem with her facing punishment for the drunk driving, but being told to delete her Facebook page seems extreme on a variety of levels. First, the literal interpretation of "LOL" is a bit unfair, considering in context how many people use the term today. Rather than literally meaning that they're "laughing out loud," it's often an expression of exasperation at a situation people find themselves in. Many people seem to use it more as punctuation to a statement they make, rather than as an accurate description of what they're doing.

But, even beyond that, it seems wrong to order the deletion of an entire Facebook account over one off-hand statement like that. Facebook had nothing to do with this woman's drunk driving -- which, again, she should be punished for. I could even see reason to up the level of punishment for potentially showing a lack of remorse or recognition of the seriousness of her crime. But forcing someone to delete their entire Facebook account, when it's a key way that many people communicate today, seems extreme. Facebook didn't make Asher drive drunk. Nor did it make her not show remorse afterward. Forcing her to shut it down completely seems to go beyond reasonable.

Even if you don't follow football (the American version), you've probably heard some discussion concerning the replacement referees who had stepped in to officiate games while the real refs sorted out their labor dispute with the NFL. If there had been even a modicum of competence, chances are most non-NFL fans would still be blissfully unaware that Green Bay and Seattle played a game recently, much less one that was decided by a call blown so badly that b-list writers began cobbling together "amateur night at the brothel" analogies. Also, the idea that the real refs, upon returning, actually got what was perhaps the first ever standing ovation for refs should tell you something about just how bad the replacements were.

A couple of days before the NFL reached an agreement with the real referees, Mike Tanier (writer for Football Outsiders and formerly the only thing worth reading at the New York Times Fifth Down blog) whipped up an idea to shut down the replacement refs before any more damage was done. The scheme relied on crowd participation, the intricacies of public performance rights and a band whose catalog was once referred to (by a b-lister) as being about as approachable as a "badger covered in live hand grenades."

Go to the game. If you are a Chargers, Jaguars or Bengals fan, this involves purchasing a ticket and driving to the stadium. There are websites that teach you how to do these things. Anyway, once there, wait for the replacement officials to make an idiotic call or lapse into one of their marathon delays. When it happens, start singing:

Nah nah nah na-na-na-nah, na-na-na-nah, Hey Jude!

Beatles copyrights (held mostly by Paul McCartney and the estate of John Lennon) and publishing rights (held by Paul, Sony/ATV publishing, and possibly by one or two of Michael Jackson’s former chimpanzees) are among the most closely guarded music rights in the world. “Hey Jude” is the most preciously protected song in the Beatles catalogue. Everyone knows it, and it is easy for a huge crowd to sing, as Paul himself proved when he led Olympic fans in a chorus of a song first recorded 15 years before their parents reached puberty.

If the crowd at an NFL game sings “Hey Jude,” television networks will be stuck broadcasting “Hey Jude” without the rights-holders permission. The sound editors are pretty good at obscuring the B.S. chant, but that only takes a little bit of white noise. Try editing away one of the most recognizable melodies in the world on live television. The broadcast will sound like it is coming from Venus. But if the NFL doesn’t drown out the singing, someone big and powerful is going to show up at league headquarters in a suing mood.

Faced with the choice of a battle against Big Music Publishing and the fourth most beloved human on earth (wedged between Ron Howard and … wow … T.J. Lang) or negotiating fairly with the referees, the NFL will be left with no choice. The lockout will end, thanks to you and the Cute Beatle.

I am no copyright lawyer, and there are probably holes in this master plan. But if the NFL can publish a mix of lies and obfuscations and call it an “explanation,” then I can publish this and call it a “solution.”

Tanier may not be a copyright lawyer, but he does certainly understand the stupidity that often masquerades as "needless complexity" in the copyright system. While the stadium would likely have a blanket license to cover the not-very-spontaneous "performance" of a Beatles' tune, the NFL's broadcast would likely be short a sync license.

Those watching the game on broadcast TV would probably be unaffected, but those watching a livestream might find their gridiron action replaced with the soothing images of Heidi doing something Alps-related, or a more familiar message informing them that the stream has been taken down due to copyright claims by Michael Jackson's chimpanzees.

While most of us would find a somewhat spontaneous singalong to fall under "fair use" or at the very least "nothing to get hung about," people singing songs out loud for non-commercial reasons is apparently Very Serious Business. BMG takes down a clip of Obama singing an Al Green song. EMI takes down a clip of a drunk guy singing a Queen song. A Slovak performance rights organization bills a village for singing folk songs about itself. Bourne Music Publishers demands $2,000 from a 10-year-old girl for singing a theme song to a Charlie Chaplin movie for charity.

It's an obviously facetious post but there's enough truth to the farcical situation to make it seem tenable. Expansion of IP protection hasn't resulted in any great declines in infringement and has criminalized several activities that most people feel would fall under "fair use." As Tanier's very humorous hypothetical situation points out, IP maximalist enforcement has a tendency to do more damage to itself that its intended targets. And by all means, read through Tanier's entire post, which also covers such enjoyable oddities as New Jersey legislators insinuating themselves into the replacement ref debacle and the NFL being covered on NPR of all places.

We've been seeing a fair bit of cheering around the news that California became the latest state to sign into law rules that bar organizations and schools from demanding social media passwords from employees and students. In theory, this seems like a good idea. After all, we've heard of more than a few cases where students and employees were asked for their passwords. But we've questioned if there should be a law here, or if people can just deal with it themselves.

And while many people are cheering on California's new law, Eric Goldman points out that we should be wary of the potential for significant unintended consequences. He worries about the broad definitions of what's really covered (hint: it goes beyond just "social media" even though that's all anyone's discussing). More importantly, he worries about the line between "personal" and "professional" accounts. Obviously, if you are managing, say, your employer's Twitter account, it's reasonable for them to have your password. And if it's just your own personal account, it's not. But... that assumes that those two categories are mutually exclusive and distinct, when the reality is they're often not. People use personal accounts for work related things all the time. It wasn't that long ago that we wrote about a dispute concerning who owned a LinkedIn account -- the company or the employee -- when many of the contacts were due to the employment situation. It's not so easy, and Goldman sees trouble ahead:

Thus, the law assumes that social media accounts have only two states: personal or not-personal. Sadly, that’s completely contrary to the cases I’m seeing in court right now. Instead, social media accounts fit along a continuum where the endpoints are (1) completely personal, and (2) completely business-related–but many employees’ social media accounts (narrowly construed, ignoring the statutory overbreadth problem) fit somewhere in between those two endpoints. Indeed, employers and employees routinely disagree about whether or not a social media account was personal or business-related. See, e.g., Insynq v. Mann, Eagle v. Sawabeh, Maremont v. SF Design Group, Kremer v. Tea Party Patriots, and PhoneDog v. Kravitz.

And, he points out, since it's important for companies to have the passwords to "corporate" accounts, while the law makes it illegal to ask for them on "personal" accounts, there's clearly going to be conflict when accounts fall somewhere into that blurry middle, as many of them do:

Putting the two concepts together, employers should require that employees provide them with login credentials for social media accounts relating to their business; but the law makes it illegal for employers to ask for login credentials to “personal” accounts. This puts employers in an obvious squeeze: employers may not know which employee accounts are purely personal and which are a mix of personal and business-related; the statute doesn’t expressly allow employers to access mixed account; and the statute doesn’t give employers a defense if they demand the login credentials because they reasonably but mistakenly thought the account was all or partially business-related. Courts will likely have to create common law exclusions for employers trying to get access to mixed accounts, but only after much angst, confusion and costly–and avoidable–litigation.

So while the intent may be good, the actual law may have some significant problems and costs associated with it. And for what? Was this really that big of a problem? Yes, there were some stories of it happening, but there was no indication that it was really that common. On top of that, in many cases, individuals could handle the situation on their own, without needing the law to back them up.

There continues to be a flurry of activity and motions and such around the Apple/Samsung patent fight, and we're avoiding most of the play-by-play until something "big" happens. But today there was an interesting ruling from the appeals court, concerning the original injunction that Judge Lucy Koh issued, blocking Samsung from selling the Galaxy Tab 10.1 device (which is already a bit obsolete anyway). She had issued that injunction earlier in the case, before the jury ruled, and that actually has presented something of a problem. Among the patents that the jury said Samsung did not infringe was the one that Koh relied on to issue her injunction. Given that, the appeals court has sent the injunction back to Koh to reconsider. Of course, all this really reinforces is the ridiculousness of the patent system today: a judge can assume that an entire product line can be blocked because it's infringing on a particular patent... only to have a jury (which in this case clearly mostly sided with Apple anyway) decide that the patent didn't apply. When a system comes up with such arbitrary results, it's a sign that the system itself is broken.

We've talked in the past about the problematic efforts to push for new cybersecurity regulations, especially when little to nothing has been done to show the actual problem. There has been quite a turf war over who would "own" cybersecurity within the federal government, with some wanting to give it to the Defense Department, where the NSA would control it (along with all your info), and others wanting to give it to the Department of Homeland Security. While neither option is ideal, DHS is clearly the lesser of two evils should it come to pass. It makes much more sense for this issue to be in the hands of a civilian organization rather than a military one -- especially a military one with a horrible track record when it comes to privacy. That said, it's tough to be enthusiastic about DHS either, given the various problems and abuses we've seen in that Department as well. Making matters even worse, it appears that the DHS boss, Janet Napolitano, who would effectively be in charge of cybersecurity, doesn't know much (if anything) about the internet, and seems rather proud of that fact, referring to herself as a Luddite:

Homeland Security Secretary Janet Napolitano, who is a key player in national cybersecurity efforts, said on Friday she doesn't use e-mail.

"Don't laugh, but I just don't use e-mail at all," she said during a discussion at a Cybersecurity Summit hosted by National Journal and Government Executive. She didn't explain what communications tools she does use.

President Obama, who appointed Napolitano, broke precedent by carrying his own BlackBerry device. But in response to a question about her personal cybersecurity practices, Napolitano said she avoids many online services. "I don't have any of my own accounts. Some would call me a Luddite," she said.

I don't think anyone should be laughing, but perhaps they should be very, very worried. Or, perhaps they should be asking why she's in that job when she doesn't seem to have the necessary experience. If it does come to pass that DHS gets control over new cybersecurity efforts, this seems like a good reason to find someone else who actually has some grasp on what it is that they're regulating.

Techdirt writes a lot about the problems with DRM, and how inefficient and inconvenient it is. But for millions of visually-impaired people, those "inconveniences" represent something much deeper, and much worse. Somebody who has started writing eloquently about this issue is Rupert Goodwins. He is one of the UK's most respected technology journalists and also, sadly, is losing his sight. As he points out in a powerful new piece, things ought to be getting better for the visually impaired in the Internet age:

there's never been a better time to go blind: we are busy converting the world to digital, and digital is supremely easy to convert.

Of course, it hasn't worked out like that, thanks to the widespread use of DRM on ebooks:

With DRM, the commercial model of the provider goes beyond an application or a service. It is designed to constrain the customer to using something in only the way approved by the content provider, and it has legal backing.

If I can't use a particular word processor, I can find another. But if I can't read a particular book because it is only readable on a particular platform and that platform isn't readable to me, I'm stuck.

He goes on to describe his attempts to get an ebook he had bought into a form that he could read. After half an hour of fruitless efforts -- which included receiving some rather ironic marketing messages telling him to "enjoy the experience" and "enjoy your book" -- he did what most people would have done at the start: he cracked the DRM. As he points out:

I dare say this is against the terms and conditions of one or more of the many impossible-to-read EULAs I clicked on in the process of trying to be a responsible digital consumer. But the author got paid and nobody lost out -- except for me, in terms of time lost and mental misery endured.

He also mentions something important that everyone working at companies employing DRM might like to consider:

This is the reward you get for being disabled and wanting to do the right thing. This is how the world's most splendid machine for freeing our minds from our physical shackles is itself being shackled. This is what will happen to all of you reading this as you get old. I know this, I've done the research: most of you will start to go blind before you die.

Ultimately, then, DRM is a problem for all of us. Maybe we should fix it sooner, rather than later, so that people like Goodwins can read the books they have bought without resorting to methods that are illegal, and we can read texts when we're old and increasingly blind ourselves.

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I know two things about Bob Dylan. First, my father loves him and thinks he's the kind of lyrical mastermind that makes puppies weep or something. Second, man does that guy like to contradict himself. Mike recently wrote up a more general piece about how copyright law goes against how we as a people create and mentioned in passing how Bob Dylan is often cited as a gift bestowed upon the masses by copyright, despite his appropriation of others' work in his lyrics. Well guess what, Mike? Bob Dylan thinks you're a pussy!

Yes, reader redrum writes in about a wonderful story in which Bob Dylan flatly states that those who have accused him of plagiarism are "wussies and pussies."
"Meow I would not feeeeel, so all alooooone!"
Image source: CC BY 2.0 No, not like that. He meant it in the demeaning ignorant way, proving his power over prose with such eloquence I haven't seen since college, when a stoned fraternity brother explained to me how awesome hazing is. In any case, the interview apparently went much deeper than simple misogyny.

In an interview with Rolling Stone magazine for its Friday edition, the influential singer-songwriter made his first public comments on the accusations, saying that in folk and jazz music "quotation is a rich and enriching tradition."

"Everyone else can do it but not me," he complained. "There are different rules for me."

It's a fair point by Dylan, I think. I mean, so what if he appropriated lyrics like "I'm not quite as cool or forgiving as I sound" almost verbatim from the biography of a Japanese mobster? That seriously isn't a big deal. And, yes, perhaps it seemed kind of strange when Dylan offered the world a painting exhibit he said was from scenes of his travels, when they were actually scenes from other people's photographs. But big deal. That's often how culture works. No harm, no foul.

The problem, of course, is that there are some people who think this kind of appropriation isn't okay. That it takes away from culture, rather than adding to it. That words have the right to be owned and art should be protected. One such person, who would disagree with Bob Dylan in this case, is Bob Dylan. As we've previously discussed:

He didn't just filch songs from other people's repertoires; he stole their arrangements. (As late as 1992, he lifted Nic Jones's arrangement of Canadee-I-O, wholesale and without acknowledgment.) He did this on both sides of the Atlantic. The great Martin Carthy, who has also just turned 70, taught him Scarborough Fair, which Dylan then recycled as Girl from the North Country. 

But he treated his own songs as private property: what's yours is mine and what's mine is my own. The assertion of his individualism involved in "going electric" was in part a way of defining Dylan entirely as an individual artist and therefore as the sole owner of his own songs. 

And that's the Bob Dylan we disagree with. Of course appropriating words, or photographs, or whatever as pieces to a larger cultural output is the way folk music works. And art. And writing. And film. We all stand on the shoulders, to some degree, of those that came before us. It's a good thing. As much as Dylan is contradicting himself, he's correct to push back on those accusing him of plagiarism. But he might also have to revisit his own views on the way people use his work as well.

With the simultaneous efforts to both assert fair use as a right of the public and the government's aim to limit its application, I always find it interesting to watch creators' attitudes and reactions to the complicated navigation of using copyrighted material in their own works. One might say it's like trying to get through a bush maze in the dead of winter. Often times the threat of legal action simply kills off a film that would have otherwise been made, or dulls it considerably because relevant source material is omitted.

But more interesting is when a creator simply goes for the gusto, so to speak. Justin Levine writes in about a documentary film producer and his feature length film about supposed hidden messages in Stanley Kubrick's The Shining. The article discusses Rodney Ascher's plan to release the film, which is rife with clips from the original movie, without even attempting to contact Warner Brothers, the company which holds the copyright for Kubrick's film.

The 102-minute documentary deconstructs hidden meanings in Stanley Kubrick’s 1980 adaptation of Stephen King’s horror novel “The Shining” — mostly by showing sequences from the actual film, a copyrighted work owned by Warner Bros. Since its Sundance debut in January, Ascher’s film has been acquired for distribution by IFC Midnight and snagged slots in the Cannes Film Festival’s Directors’ Fortnight and Toronto film festival’s Vanguard sidebars. It will have an awards-qualifying run at the end of the year followed by a March release.

For this one, Ascher has no choice but to go down the rabbit hole of proving that the footage he’s used falls under fair use, which would prevent him from having to pay hefty licensing fees to WB or being sued for showing the film in theaters.

The use of the film in this instance should certainly be covered by fair use, but one of the problems with fair use is you never really know until a court says so. In fact, the article appears to be slightly misleading in stating that Ascher has to "prove fair" use or risk being sued. The only opportunity he would really have to officially "prove" his use is covered would be after being sued, which is a big part of the problem in all this. The scenes are utilized as needed and context is clearly added. That said, Ascher's decision to simply rely on fair use entirely to pay zero licensing fees to Warner Brothers is a break from how other documentarians have utilized it in the past. It's unfortunately far more common for film producers to try to use fair use claims to merely negotiate license fees down, rather than to avoid paying the unnecessary fees at all. Entertainment lawyer Michael C. Donaldson serves as one example in the article.

According to Donaldson, clearing the rights for a mere 30-second clip from a studio film can cost between $6,000 and $8,000, an astronomical figure for an independently produced film. He often gets the studio to lower its fee after sending a package complete with a DVD on fair use and examples of litigation over the years. In one instance with a studio last year, he got the fee dropped from $45,000 to $15,000.

This negotiating of fees has been a contentious subject for copyright holders who feel they are being exploited. “This is where I take [Donaldson] to task,” says Cathy Carapella, who handles rights and clearances for Global ImageWorks and speaks on fair-use issues for the nonprofit Association of Commercial Stock Image Licensors. “If it’s fair use, why offer to pay for anything?”

This is how the weakness of fair use has resulted in a broken system that stifles culture. With such ill-defined parameters for what is only a defense, fair use becomes less about the right of creators to add to our cultural output and more about negotiation over the fees to do so. Carapella's culminating question is obviously ridiculous. The reason to pay despite content being fair use is because the type of fair use we have lacks the teeth required to satiate insurers of films. The fear is that even clear fair use instances will be litigated against, because the rules are so ambiguous. That's what makes the actions of Ascher so important: it's a clear line in the sand. No fees, all fair use. We'll just have to see how Warner Brothers reacts.

Another day, another crazy patent. DomainNameWire has the story that GoDaddy has successfully received a patent on "Announcing a domain name registration on a social website." The patent, 8,276,057, was filed back in September of 2009. Take a look at the claims for yourself to understand exactly what's being claimed, but reading through them, I'm at a complete loss as to how this is considered worthy of a patent. It has been common practice that after you do something online that options be presented to allow that action to be posted to a social networking site. It's done so often that I actually find it kind of annoying these days. But basically any programmer could implement variations on that, and nothing in what GoDaddy describes appears to be anything unique or special or out of the ordinary. Thankfully, with StackExchange's new prior art crowdsourcing effort, folks are already finding prior art. Unfortunately, that effort is supposed to be for patent applications... and this patent has already been approved for reasons that defy any logic.

While the feds absolutely hate to reveal this kind of info, due to successful legal action by the ACLU, the Justice Department was forced to reveal information on how often they monitor electronic communications of Americans without a warrant -- using what's known as "pen register" and "trap and trace." This kind of surveillance isn't over the actual communications (that's left up to the NSA, apparently), but rather just the info on who contacted whom. For various reasons, such information is considered obtainable without needing a warrant. Not surprisingly, the data shows a rather massive increase in such surveillance by the Justice Department. The numbers are quite incredible:

In fact, more people were subjected to pen register and trap and trace surveillance in the past two years than in the entire previous decade.

And yet, whenever anyone suggests that maybe, just maybe, there should be a little bit of oversight on these kinds of things to prevent abuse, law enforcement freaks out. Perhaps that's really because they know they're widely abusing the ability to spy on communications, and they don't want to have to admit it. The fact that it took a lawsuit just to get this information (which is required by law) to be released really says something about the state of surveillance by the federal government. And what it says is not good at all.

There's been a whole lot of talk about openness in government, but so far, very little action. Many vague statements and unkept promises have raised the public's expectation of actually being involved, but when push comes to shove, legislators seem much more comfortable doing things the old, closed-door way.

The public has been pushing back against this lack of transparency. The Texas Open Meetings Act requires that most government meetings be open to the general public. There are a few exceptions, but generally speaking, all qualifying meetings must be be announced at least 72 hours in advance and any final actions, decisions or votes must be made in these open meetings. If the Act is violated, the official(s) are subject to fines up to $500 or up to six months in prison.

In response, Texas municipal officials did what most officials do when faced with mandatory transparency: they tried to get the law thrown out as a violation of their First Amendment rights.

Fifteen city council members from across Texas, including Mel Leblanc from Arlington and Henry Wilson from Hurst, sued the state in Midland Federal Court, arguing the law requiring public government meetings criminalizes political speech based on content, is unconstitutionally vague and overbroad.

Specifically, the officials claimed that the law is "content-based" as it applies only to "public policy over which the governmental body has supervision or control." They also expressed their concern that the Act was too vague and had the potential to "criminalize all private speech among a quorum of a governing body that is about public policy," helpfully stating that "most" of this sort of private policy-related speech "does not lead to corruption." Not only was the Act too vague in these officials' opinion, but it was simultaneously "too complex," requiring an "educational course to comply with it." (This last part is true -- an Open Meetings Training section exists in the Act -- but it hardly makes the law overly complex.)

The 5th Circuit Court shot every argument down, reminding officials that the goal of the Act is to bring about more openness and transparency, rather than to be used a blunt-force weapon for constituents to punitively punish government officials.

Referring to the argument that the law is "content-based," the court declared:

"Here, government is not made less transparent because of the message of private speech about public policy: Transparency is furthered by allowing the public to have access to government decision-making," the opinion states. "This is true whether those decisions are made by cogent empirical arguments or coin-flips. The private speech itself makes the government less transparent regardless of its message. The statute is therefore content-neutral."

The arguments that the act is unconstitutionally overbroad and vague were dismissed as well:

"The plaintiffs' argument fails, because it ignores the other purposes of TOMA, such as increasing transparency, fostering trust in government, and ensuring that all members of a governing body may take part in the discussion of public business," the opinion states. "With respect to these other goals, TOMA is not overbroad."

"Neither of the issues plaintiffs point to implicates the underlying purpose of the vagueness doctrine: preventing government from chilling substantial amounts of speech and facilitating discriminatory and arbitrary enforcement," the opinion states. "The concern underlying the vagueness doctrine is that citizens will not be able to predict which actions fall within the statute, leading to arbitrary and discriminatory enforcement."

The Circuit Court found that increasing transparency and trust in government legitimized the inclusion of criminal penalties in the Act, as the overall point of the law was to foster governmental openness rather than curtail any official's First Amendment rights.

It's a great first step and one that will probably be cited if other states follow suit. (Illinois has its own Open Meetings Act.) Of course, this particular battle is far from over. The municipal officials are planning an appeal to the US Supreme Court, which seems like a ton of effort and expense to go through simply to lock the public out of discussions on policies that affect them.