As we had hoped earlier this week, the Senate Judiciary Committee did, in fact, approve Senator Patrick Leahy's attempt at ECPA reform, which would require law enforcement to do something crazy like "get a warrant" before sifting through your email. The bill was approved despite law enforcement types freaking out that they might actually have to ask a court for permission. Senator Chuck Grassley, as expected, introduced an amendment that would have greatly weakened the warrant requirement for various federal agencies, but it was thankfully voted down.

Of course, at this point, the victory is largely symbolic, as it's happening in a lameduck Congress. The bill still needs to pass the full Senate and have a comparable House version pass as well. In other words: nothing is happening until next year when this whole process may need to repeat. And given some of the quotes from Grassley and law enforcement, there will be yet another effort to strip some of these warrant requirements. Still, it's nice to see that there's at least some recognition in Congress that electronic privacy laws are woefully out of date, and leave private information, such as emails, way too open to law enforcement snooping.

The capabilities of 3D printing are just starting to become a mainstream phenomenon. Printing custom parts for prototype devices doesn't sound too cool to non-geeks, but when 3D printers are common household appliances, people will look back and wonder how we lived without being able to instantly produce unlimited copies of almost any object. Here are just a few examples of some 3D printed items that are pretty cool.

• Paleontologists are playing with 3D printers and making some huge dinosaur parts for life-sized dinobots. Dinosaur robots could help us better understand how real dinosaurs moved and how they might have interacted. [url]
• Stratasys 3D printers have been used to print out lightweight prosthetic devices, custom-fitted for the wearer. Someday we might all have 3D printed exoskeletons to make us stronger... and everyone will say, "I want that." [url]
• A 3D photo booth can print out tiny figurines that look almost like custom GI Joe action figures -- or very detailed wedding cake statuettes. The printed dolls go for about $265 for a 4-inch figurine and $530 for an 8-inch size. [url]

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

For years, we've seen so many legal disputes that could be jokingly described as arguing "felony interference of a business model" -- a term coined by Steven Bellovin a while ago as shorthand for lawsuits that are much more about a company who bet on the wrong business model, than any actual legal wrongs. Normally, this relates to legacy companies upset at upstarts who win through the disruptive judo of taking a totally different approach. But it can be seen in other arenas as well. We've also talked, for example, about how odd it is that some companies appear to base their entire business on what some other company does -- and they seem wholly unprepared for a situation in which the company they are 100% reliant on changes. As venture capitalist Fred Wilson has summarized, a good company can't be someone else's bitch.

Both of those concepts seem relevant given the news that a startup called PeopleBrowsr has successfully obtained a temporary restraining order against Twitter for changing how it doles out access to its "Firehose" (i.e., the raw stream of all public tweets). As has been covered widely, over the last few months, Twitter has really clamped down on some of its more open practices lately. I actually agree with many people that I'm not sure this is a smart long-term business move, but I can't see how it could possibly be a legal violation. Yet, that's what PeopleBrowsr appears to be claiming. Of course, its Firehose offering has long been an offering that companies had to work out a deal with Twitter to get access to, so even then it was never fully "open."

As part of the changing business strategy, Twitter has cut off many of its "Firehose" partners, including PeopleBrowsr. In response, PeopleBrowsr sued arguing that this change has a negative impact on PeopleBrowsr's business (apparently true), and thus it must be illegal. The company highlights how it has all sorts of highly valuable deals with other companies because of its analytics of Twitter's Firehose.

PeopleBrowsr's products are highly valuable to its users, who utilize them to extract relevant information from the massive Twitter stream, as well as to organizations marketing their messages or brands. PeopleBrowsr has entered into valid contracts including: (1) a three-year, $3 million contract with defense contractor Strategic Technology Research, (2) a long term, $400,000 contract with Cadalys to build a customized Kred application, (3) a long term, $300,000 contract with Radian6 to incorporate Kred into its products, (4) a long term, $400,000 contract with Badgeville to incorporate Kred into its products, (5) a contract with Mashable to power its mRank product through PeopleBrowsr's API, and (6) a contract for at least one year with DynamicLogic, worth at least $75,000. PeopleBrowsr has business relationships that are likely to ripen into new business with firms including Dell Computer, Demand Media, Ogilvy, Bell-Pottinger, and CBS Interactive, among others.

It is not difficult to understand why PeopleBrowsr is upset that Twitter decided to end the relationship, even as PeopleBrowsr claims to pay over $1 million a year to Twitter for access to the Firehose. The key argument that PeopleBrowsr makes, is that Twitter has, in the past, made various statements concerning its embrace of an open platform that allows others to build on top of their work. But I'm not sure why that's actually relevant here. PeopleBrowsr obviously knew that Firehose wasn't completely open since it signed two separate licensing agreements with Twitter (according to its own filing). In fact, they explicitly note that the agreement has a termination provision, so PeopleBrowsr had to know it was a possibility. In addition, most of the statements about openness that PeopleBrowsr cites, are vague statements about the importance of openness. Even the specific comments about keeping Firehose open are things like an engineer noting that he's "fighting to keep access to the Firehose and other API's as open as possible," which should have clearly indicated to PeopleBrowsr that the entire company was not in agreement, and there was a very real chance that it would not remain so open.

In the end, it really seems like the problem is entirely PeopleBrowsr's for building a business in which it relied almost entirely on a single relationship, and did not set up the contract to ensure that relationship would not go away. Again, I'm not sure that Twitter's strategy here is smart, but it's difficult to see how it's illegal. The problems seem entirely self-created by PeopleBrowsr. It even seems to admit that it bet its entire business on this fact, without securing a contract that they knew would last.

The Firehose is an essential input for PeopleBrowsr's business. PeopleBrowsr's products function by creating a comprehensive view of Twitter activity, and a mere sample of Twitter's data is not sufficient to provide the sophisticated analytics PeopleBrowsr's clients have contracted for.

All that says is that perhaps they shouldn't have put things in their client contracts that they really couldn't promise they'd have access to -- or they should have put together a much more solid agreement with Twitter in the first place. While PeopleBrowsr may have won a temporary injunction, preventing Twitter from turning off its access to Firehose for the time being, it seems like a massive long shot to think that it can possibly win this lawsuit. Yes, it sucks that the one partner you bet your business on is changing its own ways of doing business, but that's what happens when you bet your business model on being someone else's "bitch."

Earlier this summer, we wrote about Syria briefly deleting itself from the internet. We wondered about the logic behind this, seeing as other countries who attempted this -- namely, Egypt and Libya -- had regime change follow quite closely after such a decision. Furthermore, not too long ago, reports were that the Syrian government was trying to use the internet to get its own story out. Of course, a lot has happened in Syria in the interim. So perhaps views have changed.

Reports came out quickly today that the Syrian internet went almost entirely offline. Renesys, who reported this first, also provides some striking graphics on the situation:
I can't imagine this strategy will be particularly successful.

Remember Raanan Katz? The Florida real estate mogul and part-owner of the Miami Heat, made some news earlier this year for suing Google and a blogger for copyright infringement after the blogger posted an "unflattering" photo of Katz. Katz, who was clearly annoyed at the blogger -- a former Katz tenant who is (to put it mildly) not a fan of Katz -- for blogging critical stories about Katz (including highlighting some earlier lawsuits Katz had been involved with and posting the related legal documents). In addition to suing for defamation, Katz purchased the rights to the "unflattering" photo the blogger, Irina Chevaldina, had posted of him, and then sued for copyright infringement. Google was included on the case for refusing to take down the photo. While Google was later dropped from the case (one assumes that someone somewhere finally realized that, perhaps that end of the suit wasn't going to end well), Katz has continued his case against Chevaldina.

Earlier this month, the judge in the case signed off on a ridiculously broad injunction against Chevaldina, that not only says that she can't "trespass" on Katz's properties, but that she can't blog anything that is intended to "otherwise cause harm" to Katz. That doesn't seem even remotely constitutional. Criticizing someone is protected speech, even if it may (or is intended) to cause harm to someone's business. And the "trespass" injunction may seem like no big deal, especially since trespassing is already illegal. But, in this case, the court has indicated that by "trespassing" they mean that Chevaldina cannot even go to any of the properties that Katz owns -- which includes stores and shopping malls. As Carlos Miller notes in the link above:

On Thursday, a Florida judge found no evidence that Katz suffered defamation or damages because of Chevaldina's blog, but nevertheless banned her and her husband from stepping on any of Katz's properties, which pretty much prevents them from visiting any of the local businesses in the community of Sunny Isles, which is known as Little Moscow for its high Russian population.

Judge Ellen Leesfield said they shouldn't want to visit these premises anyway because of their hatred for the man.

But Chevaldina said many of these business owners are their Russian friends who rent from Katz and invite them into their stores and restaurants.

That was earlier this month in a verbal injunction. Right before Thanksgiving, the judge signed off on the text injunction that Katz's lawyers wanted... and then Chevaldina posted a few blog posts on her blog, including a story about an earlier dispute between her and Katz, in which it was ruled that Katz cannot use a "trespassing" claim to keep her out of retail establishments that he owns. Then there's another post highlighting how courts have said that shopping malls and shopping centers are often deemed the equivalent of public places. While she doesn't do a particularly good job explaining what she's posting, it's not hard to figure out that she's highlighting some questions about the injunction against her, which seems like a perfectly reasonable thing to do and a form of protected speech.

In response, however, Katz's lawyers have now filed for contempt charges against her, saying that those blog posts, which support her position that the injunction is improper, are in and of themselves, breaking the injunction. Get your head around that. While the blog posts may be a bit wacky, it seems way, way over the top to argue that such blog posts are in contempt of the injunction. It also raises serious First Amendment questions to suggest that you can't even discuss details of the case that you, yourself, are involved in.

On top of that, it's worth noting in the filing that Katz's lawyers still are claiming that Katz is not a "public figure." They've been claiming that since the beginning, because the bar to show defamation of a public figure is much higher. But the idea that Raanan Katz is not a public figure is preposterous. As detailed in a Miami NewTimes article from last year, Raanan Katz is, by any measure, a public figure.

In Sunny Isles Beach, Raanan Katz has a street and an official day named in his honor. His company, with its omnipresent "RK" basketball logo, seems to claim every other strip mall in North Miami-Dade. He's also minority owner of the Miami Heat....

Katz cuts a singular figure in Miami. Once an Israeli basketball star, he built a real estate empire in Boston before gobbling up a block of South Beach in 1984. Two years later, he bought into the expansion Heat franchise and has been a courtside fixture since then.

How can he continue to claim he's not a public figure?

We've written a few times about how the FBI has been doing a bang up job foiling its own terrorist plots, so we're a bit skeptical every time we see headlines of some giant "terrorist bust." Almost every time, once you dig into the details, it involves some gullible, confused suckers who had no actual connection to terrorists, but were led along by FBI agents and informers until they were "convinced" to take part in a "plot" that was entirely concocted by the FBI. The latest headline-grabbing case of "arrested terrorists" actually appears like it may have slightly more substance, however, in that they may have actually had some sort of connection to al Qaeda and the Taliban in Afghanistan.

That doesn't mean that there still aren't some oddities in the case, however. As a number of folks have sent over, reading through the indictment (also embedded below) shows that a significant chunk of the "evidence" seems to consist of Facebook "likes" and shared content among the accused. From the indictment:

I have reviewed several of the social media web sites for KABIR, SANTANA, DELEON, each of whom has posted radical prom jihad content on their respective pages. Additionally, portions of the social media show that DELEON and SANTANA "liked" postings on KABIR's Facebook page as early as May 2011.

Public items posted by KABIR to his social media accounts include photographs of himself, non-extremist content, radical Islamist content, and items reflecting a mistrust of mainstream media, abuses by the government, conspiracy theories, abuses by law enforcement, and the war in Afghanistan. KABIR's radical postings include videos and links to videos of Al-Qa'ida leader Anwar Al-Awlagi and his lectures, jihad--based videos regarding Afghanistan and elsewhere, videos depicting mujahideen fighters in Afghanistan and elsewhere, videos depicting terrorist training camps and related activities, videos depicting improvised explosive device attacks, and articles regarding the death of American soldiers in Afghanistan. For example, on July 6, 2012, KABIR shared a video to his public Facebook page entitled "Knights of Khorasan Islamic Emirate Operation Against an Army Base in Margha." This video, which I have reviewed, depicts a suicide bombing operation against a large base wherein the suicide- bomber drives an explosives-laden truck into a base and detonates it. The video bears the symbol of As-Sahab, Al-- Qa'ida's media wing, in the lower right corner.

KABIR has "shared" several postings with SANTANA and/or DELEON, both of whom have "liked" or commented on several other postings by KABIR, including the following:

a. On December 7, 2011, KABIR posted a video entitled "Black Flags of Khorasan: Part 2" that he later "shared" with DELEON.- (Based on my training and experience, conversations with other agents, and research of publicly available information, the black flag or banner refers to a traditional flag flown by Muhammad and later by Islamic military leaders. More recently, several jihadi groups and terrorists have adopted the black flag as a symbol for jihad and mujahideen fighters.)

b. On or about January 5, 2012, KABIR shared a link regarding negotiating with the Taliban. SANTANA "liked" the post and SANTANA and KABIR engaged in a public exchange of comments. SANTANA said, "they messed up know?" KABIR followed SANTANA's comment with a comment that appeared to include excerpts of a "Statement of Islamic Emirate of Afghanistan," which discussed the Taliban's desire to expel the United States from, and establish their own government in, Afghanistan. SANTANA replied to KABIR's comment by writing "Oh yea!!!!"

c. On January 5, 2012, KABIR posted a photo on his Facebook page depicting a veiled and covered woman leaning on an assault rifle. DELEON and KABIR exchanged comments on the photo wherein DELEON said "...hey bro are coming back? whats goin on? how long gona stay there?" KABIR replied "Naa.. not comin back... movin 4wd.... =D.... 1/2 way 2 my destination.. =D."

(Based on the context of this statement, including the fact that KABIR was then in Germany, I believe that KABIR intended to inform DELEON that he had commenced his journey to Afghanistan.)

d. On January 19, 2012, DELEON "liked" a shared link posted on KABIR's page of a video entitled "Dua of Sheikh Muhammad al Mohaisany masjid al haram makkah." The video, which I have reviewed as posted on KABIR's page, appears to be a prayer for the success of the mujahideen and features various photos including Al--Qa'ida leaders Usama Bin Laden and Ayman al Zawahiri, 9/11 attacks, bloodied adults and children, and Islamic fighters. The video also calls for the liberation of Al-Aqsa, the mosque referenced in the 1998 Al-Qa'ida fatwa described above.

e. On February 13, 2012, SANTANA "liked" two shared video links on KABIR's page, including one for a video entitled "Imam Anwar al Awlaki -- A Story of Courage."

f. On May 28, 2012, KABIR posted two stories regarding the death of Al-Qa'ida leader Usama Bin Laden. DELEON "liked" both stories; SANTANA "liked" one.

g. On June 16, 2012, SANTANA "liked" a video, produced by Al--Qa'ida's media wing, As-Sahab, shared by KABIR to his Facebook page entitled "Ghuraba." This video, which I have reviewed, appears to depict life as a mujahideen fighter and includes several interviews. The video also features mujahideen fighters firing artillery.

h. On July 5, 2012, KABIR posted a photo featuring Al-Qa'ida leader Anwar Al-Awlaqi which contained a quote from Al-Awlaqi. DELEON "liked" and "shared" the photo.

i. On September 16, 2012, DELEON "liked" KABIR's shared link to a video entitled "The Truth Has Come and Falsehood has perished Part 1 Urdu." This video, which I have reviewed, is a production by As-Sahab and begins with footage of Al-Awlaqi and discusses the war in Afghanistan. The video also features current Al-Qa'ida leader Ayman Al-Zawahiri.

On September 17, 2012 SANTANA "liked" KABIR's post of an article entitled "A Public Talk by Ustadz Abu M Jibriel AR: The Truth of The 9/11 Jihad Operation, The Plots Of The Enemies and The Zionist Conspiracy."

There is, of course, other evidence including statements made by all the defendants. For all we know they may have actually been planning attacks on US targets and the indictment is entirely appropriate. But it certainly gives pause to suggest that "likes" and "shares" on Facebook are somehow evidence of terrorist intent. It could certainly be seen as having a chilling effect for anyone who might "like" or "share" content on Facebook that is critical of the US government.

A couple of months ago, Julian Sanchez wrote about the ridiculous situation in which he filed a FOIA (Freedom of Information Act) request to reveal the latest semi-annual report from the Justice Department concerning how it was implementing the FISA Amendments Act of 2008. As we've been discussing, for a while, how the FISA Amendments Act broadly expanded the ability of federal law enforcement, in particular the NSA, to spy on everyone. While there is some language that suggests it's only supposed to be used on foreigners, it's been revealed that there is a secret interpretation of the bill, that likely allows them to use a loophole (plus the secret interpretation) to collect and review tons of data on Americans. The FAA is up for renewal, and it's likely that Congress will rush through a five year extension -- despite overwhelming evidence that many in Congress don't know how the NSA is interpreting the bill (and even making statements that directly contradict the evidence of how the bill is being used).

The law does require the "semi-annual" report mentioned above, and thanks to a lawsuit by the ACLU, the courts have said that the government is required to release redacted versions of those documents. Which is why it was crazy when Sanchez initially filed his FOIA request to see the most recent versions, arguing (quite reasonably) that such documents were inherently important in the debate over the FAA's renewal, that the DOJ initially told him that it had to deny his request because it could "neither confirm nor deny the existence of records in these files responsive to your request." That was obviously bullshit. Once again: the report is required by law, and the courts have already said that the content is subject to FOIA requests. Thankfully, after Sanchez went public with the ridiculousness of the situation, the DOJ quickly admitted the original response was a mistake, and promised they'd get right on finding the documents.

Sanchez now has an update of the situation, which is almost as ridiculous as the original story.

By mid-September, just under three months after my initial request went in, I was informed that they’d identified the reports I was looking for and forwarded them to the Office of the Director of National Intelligence (ODNI) for a declassification review, which they expected would be completed by early November. Joy! Would we actually get information about an intelligence program out of the government without a lawsuit? Maybe even in time to have a semi-informed public debate?

Well, no. ODNI informed me earlier this month that they were wrapping up their review and redaction Any Day Now, at which point… their redacted version would be forwarded, one at a time, to every other intelligence agency whose activities were referenced in the report. At each agency, it would go to the back of the line of FOIA requests, exactly as though it had just been submitted for the first time. Estimated time before a heavily censored version of these reports see the light of day: Another six months. At least. By which time, it won’t matter much what these reports say about NSA’s use of its sweeping powers, because Congress will have already given them another five years of spying authority.

Notice what this means in practice: Even though a court has already established, thanks to an ACLU lawsuit, that they are legally required to release redacted versions of these reports to the public on request, a cumbersome bureaucratic process effectively guarantees that it takes a solid year to get this information out, which means at best you’re working with what the assessment found two reports ago, allowing the government to assert that they’ve fixed whatever problems were found. In this case, the timing of the review process conveniently guarantees that whatever we learn will come far too late to influence this year’s vote on FAA powers, but be old news by the time Congress takes up the question again. It’s a little hard to swallow the claim that all this delay is remotely necessary: Are we really supposed to believe that the Office of the Director of National Intelligence will be so slipshod about letting sensitive classified information through that their work has to be independently double checked by every other intelligence agency? And that this process has to take six months or longer, even after ODNI has done their initial review and redaction? Of course it doesn’t: This is a bureaucratic procedure designed, not to protect national security, but to allow stalling on the release of politically inconvenient information that the courts won’t allow to be completely hidden from the public.

Once again, this seems to raise questions about the process here -- and how much of it really has to do with law enforcement officials being careful... and how much of it is purely political, seeking to hide damaging information that might impact the FAA renewal.

Furthermore, as Sanchez notes, the very idea that he had to file a FOIA for this information is troubling by itself:

What we should really be asking is why I had to submit this request at all. In his first days in office, after all, President Obama issued a directive not only urging agencies to err on the side of disclosure, but to adopt a policy of proactive release of documents likely to be of public interest. Surely if there were any doubt about the public interest in the use of sweeping surveillance powers, it should have been put to rest after the ACLU won release of the earliest compliance reports. So why didn’t the Justice Department follow President Obama’s directive and draft these reports with an eye toward preparing a declassified public version, knowing full well that civil liberties groups would come asking? Well, because then they wouldn’t be able to obfuscate and delay for months and months. Because then the public might be able to have an informed discussion about the secret surveillance powers we’ve given our spy agencies before we vote to extend them. Heaven forfend.

Over the past few days, a post concerning copyright claims began making the rounds on Facebook, presumably written in response to the news that Facebook would no longer be letting its users vote on site policies. This announcement arrived with the news that Facebook would also be combining profiles across various other services like Instagram.

The message was a convoluted wordpile of misinformation that referenced non-applicable laws, when not misspelling potentially applicable terms ("BerneR Convention," anyone?). It read like a bad chain letter (is there any other kind?), encouraging Facebook users to repost it as their status in order to "protect" their "copyright" on their uploaded content. Here's the my-stuff-is-mine! post in all its glory:

In response to the new Facebook guidelines I hereby declare that my copyright is attached to all of my personal details, illustrations, comics, paintings, photos and videos, etc. (as a result of the Berner Convention).

For commercial use of the above my written consent is needed at all times!

(Anyone reading this can copy this text and paste it on their Facebook Wall. This will place them under protection of copyright laws, By the present communiqué, I notify Facebook that it is strictly forbidden to disclose, copy, distribute, disseminate, or take any other action against me on the basis of this profile and/or its contents. The aforementioned prohibited actions also apply to employees, students, agents and/or any staff under Facebook’s direction or control. The content of this profile is private and confidential information. The violation of my privacy is punished by law (UCC 1 1-308-308 1-103 and the Rome Statute).

Facebook is now an open capital entity. All members are recommended to publish a notice like this, or if you prefer, you may copy and paste this version. If you do not publish a statement at least once, you will be tacitly allowing the use of elements such as your photos as well as the information contained in your profile status updates.

Needless to say, the above statement does nothing to keep Facebook from using uploaded content according to its existing terms of service. Not only that, but the legal terminology thrown around like so much careless set dressing is all wrong. For one, the Berne Convention makes it unnecessary to "declare" your copyright. It makes that protection automatic. The privacy law referenced has nothing to do with privacy and the Rome Statute established a world court in Hague. All in all, it's a lot of words that do nothing but sound important and vaguely threatening.

The simple fact that this semi-viral post is completely wrong shows how colossally screwed up our current copyright system is. People are still under the impression that copyright needs to be "declared" (usually with the © symbol). Many also seem to think that if they "declare" copyright and trot out a million limitations, everyone approaching their copyrighted content is obliged to follow every stipulation. Facebook users are picking up the clues that maximalists are dropping and cobbling together legal-sounding threats with nothing behind them. What Facebook users really want isn't the same thing maximalists want. Behind this flawed statement is the feeling that Facebook "gave" users a place to share their photos, etc. with friends and family, but now it wants to turn uploaded content into marketing tools.

Leave it to a maximalist to misunderstand what's really going on here. MPAA chairman Chris Dodd has cranked out a response to this bit of malformed Facebook-jamming that completely misses the point.

At a time when personal and artistic content is just a click away, copyright protection is more important than ever.

The Facebook incident demonstrates that the average Internet user recognizes this fact, especially when they feel their personal content -- photos, videos, ideas, etc. -- is in jeopardy. But it also provides average Internet users with some insight into the point of view of the creators of movies, music or other artistic endeavors whose work has been subject to online theft.

But this has nothing to do with what Dodd calls "theft." The mangled, defensive cry of "copyright" has become the default response to any situation someone doesn't like. Its misunderstood power is waved around desperately like a talisman in an attempt to ward off bad things.

Dodd wants to make this about file sharing, but it's not even in the same city, much less the same neighborhood. Facebook users aren't worried that other users will download their creations and spread them around the internet. They're worried that their uploaded content will be used to push products and services, which definitely isn't why they uploaded photos, movies, etc. to Facebook.

File sharing is non-commercial infringement. The stuff that Dodd wants shut down isn't comparable to Facebook's actions. Someone can make the argument that file lockers are profiting, but it's not the individual users. What Facebook users were doing with photos, artwork, etc. has more in common with file sharing than it does with Dodd's overreaching attempt to tie his industry into the equation. Someone uploads a photo. Someone else clicks "Share." It spreads. Potentially millions of people see the photo, but it still resides safely in the originating user's account. That's file sharing. That's the same thing Dodd calls "theft." And that same thing (sharing) is what Facebook users want to continue doing without worrying that they're just generating content for a marketing machine.

He continues:

The livelihoods of these innovators depend on strong copyright protection policies so they can benefit from their work and continue to create more of it. Without robust intellectual property protections, innovation has no incentive to thrive.

This again. "Without blah blah blah, blah blah blah blah blah." Whatever. More innovation and creation has occurred during this Age of Piracy than in any time previous. Give it up. There's some talk about collaborating with the "tech community," but that's been offered before with all the enthusiasm and sincerity of the limp handshake that accompanies a shot-down sales pitch.

Dodd sums it all up by dragging in the "little people" and attempting to equate the motion picture industry with Facebook users.

Intellectual property and copyright policies are, of course, important to the movie set designer, the lighting assistant, and the costume designer whose paychecks depend on these protections -- but they're also important to the millions of Facebook users around the globe, too. This latest viral post is a great reminder of that.

This "copyright protection" you speak of, Dodd? Facebook users don't want that. They don't want other Facebook users to stop sharing their stuff or ask permission first or hold long discussions about licensing. They just want to share with each other. What they don't want is to see their stuff being used at the whim of a public corporation. This outcry, as misguided as it is, isn't about "stealing." It isn't about "getting paid." It's not even about "control." It's about sticking it to The Man. It's poorly thought out and badly worded and not even remotely close to an actual legal document, but that's what it is: a push back against perceived overreach.

Everyone who uses a "free" service knows they'll be paying for it one way or another, but when the piper starts collecting, people get upset. And, thanks to the copyright culture that pervades the US, the knee-jerk response is to shout "copyright" at the offenders until they back down, because they've seen the tactic used before. Just because you recognize the tactic, Chris, doesn't mean they're talking about the same thing. Facebook is all about individuals sharing content with each other, the same sort of behavior the MPAA frequently calls "theft." They don't want "strong copyright policies." They just want to feel it's their stuff, rather than Facebook's.

To Silvie van Etten:

Thank you for your letter on November 23rd, 2012, (which we have reposted below in its entirety, minus your contact info) in which you mistakenly suggest that Techdirt has infringed the copyrights of your company, Human Synergistics, via its post from October 5th, 2012, entitled Copyright As Censorship: Author Removes Blog Post After Being Threatened For Quoting 4 Sentences. First of all, it is astounding that you do not appear to recognize the irony of threatening us over a blog post that goes into detail as to why someone else's use of a tiny snippet of your company's work was quite clearly fair use under US copyright law. In fact, it leads one to wonder if you even read the post in question before sending your letter.

Even if we ignore the question of whether or not that original blog post by Patti O'Shea constituted fair use, I can assure you that Techdirt's use is fair use. Furthermore, your claim that a lack of permission to quote your silly exercise (solely for the purpose of explaining your overaggressive use of copyright law to censor people against your own best interests) is somehow "a direct violation of our copyright" is absolutely false. It is not just false, but an exaggeration of the rights you hold under copyright law -- a situation called "Copyfraud" by legal scholar Jason Mazzone.

While you appear to be in Germany, I note that Human Synergistics International is actually based in the US. We, too, are a US company, with US servers, targeting a mostly US audience. As such, the only copyright law that would reasonably apply is US copyright law, which has clear support for "fair use," especially when used in reporting and comment/criticism. According to your LinkedIn page, your law degree is from the somewhat infamous Thomas M. Cooley law school in the US, so you must be familiar with US copyright laws, and fair use in particular. While fair use laws are, at times, open to interpretation, there are few situations as obviously and clearly fair use as ours. As such, we reject your claim that we have violated your copyrights as well as your request to remove the quoted sections from our blog. When something is fair use it neither requires permission nor is it infringement, your suggestion to the contrary notwithstanding.

Our use is fair use and not infringing. While courts are free to use their discretion in determining what constitutes fair use in the US, it is common to focus mainly on the four factors prescribed in copyright law. Looking over those four factors, our use is without a doubt fair use.

The first factor is the "purpose and character of the use." Section 107 of the Copyright Act notes that fair use is explicitly "for purposes such as criticism, comment, news reporting." Our use of your text was, in fact, for all three. We criticized your ridiculous abuse of copyright law to attempt to censor a website discussing your exercise. We further commented on the matter, using the text in particular to show why your original claim of copyright infringement (leaving aside this latest attempt to double down) would likely fail on fair use grounds. Finally, we clearly used the text in the course of news reporting, as we were reporting on your excessive behavior, which we believed (and still believe) was a newsworthy event.

Furthermore, courts will often look at whether or not the use is "in the public interest" (see Online Policy Group v. Diebold). Once again, this supports fair use, as it is clear that a company that chooses to abuse copyright law to silence public speech needs to be exposed publicly, so that others who may choose to do business with such a company know the sort of operation they are dealing with. Given that it was in the public interest to expose your actions, we again stand by our assertion that our use was fair. In addition, considering we were providing commentary on the over-aggressive nature of your initial takedown, there is no other way to accurately explain your abuse of copyright law without also sharing the brief snippet of text. This, too, supports the fair use argument.

Courts also explore whether or not the use is "transformative," (see: Cambell v. Acuff-Rose). Once again, the answer is a resounding yes. At no point were we seeking to use your content to have a bunch people sit around and actually take part in the exercise, but rather to specifically demonstrate your company's misuse of copyright law -- a purpose that is transformatively different from the purpose you appear to envision for the text.

The second fair use factor is "the nature of the copyrighted works." Again, this prong supports our claim that the use is fair and not infringing. Our original post talked about how your company appears to abuse the purpose and the letter of copyright law to threaten and bully anyone who quotes a very tiny portion of a common "group training" exercise, involving stranded travelers and a small list of items which need to be prioritized for travel and survival. As we noted in our original post, there are a variety of similar exercises, all based on the same premise. That, alone, suggests that the short description of the exercise -- consisting of 4 sentences and 64 words -- has, at most, only weak copyright protection on the few new creative elements. Furthermore, the "list" of items is, not unlike a "recipe," merely a list of facts and, for the most part, not copyrightable under US law. Finally, part of the text that you ask us to delete is, in fact, something that we wrote, "she then lists out the items," rather than something from the text you claim copyright over.

The third factor is "the amount and substantiality of the portion used." Here, again, it supports that our use -- the tiny segment of the exercise that was quoted in our blog post -- is fair. As anyone who has done one of these exercises knows full well, the point of the exercise is not the 4 sentence description, nor the list of items, but the actual group prioritization effort, combined with the "expert" prioritization that is often revealed at the end of the exercise in addition to various explanations of what the exercise means / what participants should have learned. Since the amount that we copied was such a tiny part of the larger exercise, and a minor part of it, at that, this again weighs in favor of fair use. Furthermore, even if you were to argue that we somehow did use a substantial portion, your argument would fail. As the Supreme Court makes clear in Harper & Row, Publishers, Inc. v. Nation Enters, "substantial quotations might qualify as a fair use in a review of a published work or a news account." Our use clearly was a news account.

Finally, the last factor is "the effect of your use upon the potential market for the copyrighted work." It's important to note here, (again referencing back to the Campbell case) that the courts are clear here that they are not addressing whether or not the criticism harms the market, but whether or not the direct use harms the market. We freely admit that our criticism of your despicable copyright practices may lead organizations to think twice about doing business with your company. But, as the Supreme Court noted, while "a scathing theater review kills demand for the original, it does not produce a harm cognizable under the Copyright Act." In our case, the specific use of the text clearly does not harm the potential for your market, because we were not using it in a competitive manner at all. No one would read our post and use that to administer the exercise in question.

It's that last point that is the most bizarre in all of this. The original blog post, by Patti O'Shea, which we were commenting upon, said nothing negative about your organization or the exercise, which she seemed to enjoy. Most reasonable persons would actually have read it as an endorsement of the exercise itself, which would reflect well on you and could lead more people to wish to hire your organization or license the specific exercise details. Thus, the end result of your bizarre copyright extremism is that you caused a blog post that would likely drive more business for you to be disappeared from the internet. In response, you received criticism from us. And, rather than change your ways, you have now dug yourself an even bigger hole by threatening us with what appears to be a clearly bogus threat. So you have gone from one mostly positive blog post to an increasing series of negative blog posts criticizing your activities.

It is unclear how that series of responses from you furthers Human Synergistics' business interests, which must be a part of your job.

Finally, you should make yourself aware of the Lenz v. Universal case, in which the courts have noted that copyright holders have an obligation to take fair use into account prior to issuing a takedown notice under copyright law. While your initial notice is deficient in meeting the qualifications of a DMCA Section 512 takedown notice under copyright law, if you seek to send a complying takedown notice, understanding the implications of Lenz v. Universal would probably be wise.

While I hope that this response, posted publicly on our site and sent to you directly, constitutes the end of this discussion, I have had this letter reviewed by multiple lawyers who are experts in copyright, fair use and free speech. If you wish to continue this fruitless effort, I will be happy to put you in touch directly with lawyers who will be representing us in having a court disabuse you of your misunderstanding of copyright law.

Sincerely,

Michael Masnick
CEO and Editor
Floor64 Inc. and Techdirt

A couple of months ago, Ben Zevenbergen explained how the Dutch Supreme Court was finding it difficult to reconcile different aspects of Europe's copyright rules. At the heart of the problem is the copyright levy system, effectively a tax on blank media that is supposed to compensate copyright holders for a supposed "loss" from copies made for personal use.

One issue is whether this system should also pay for the claimed loss from unauthorized copies. As Techdirt has reported, study after study suggests that people who share files spend more on culture. Despite this, copyright companies cling to the idea that they must be "compensated" for this sharing by yet higher taxes on blank media.

This has led to huge hikes in the German levy, and big increases in the Netherlands, where the manufacturers of equipment subject to the copyright levy have decided to fight back, as reported in this IT World story:

Hewlett-Packard, Acer, Dell and Imation are suing the Dutch government over new levies on hard disks, smartphones, tablets and MP3 players that are meant to compensate the music and movie industries for losses caused by home copying.

The copyright industries want 40 million euros, which the equipment manufacturers think is excessive for a couple of reasons:

The 40 million euros also incorporates damages for illegally downloaded music and movies which, according to the companies, legally cannot be recovered by a levy on devices. Furthermore the Dutch government established a levy on all devices including devices for professional use that are not used for private copying, they said.

Nor are the Dutch companies the only ones that are deeply unhappy with the present copyright levy system. In France, industry groups have recently resigned from the country's copyright levy commission, not least because the latter's composition means that copyright industries there are able to set the levies which they themselves will receive (original in French.) As the industry groups point out, this is a crazy situation that naturally encourages fees to be set at unjustifiably-high levels.

It's hardly surprising that an unsophisticated system originally devised for cassette tapes is proving unworkable for the digital era, where storage is being embedded everywhere, and is constantly increasing in capacity. The tide is turning, as the copyright industries implicitly admitted recently. The latest moves by hardware manufacturers are simply the next stage in a battle whose ultimate outcome seems clear: the complete abolition of outdated and irrelevant copyright levies.

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

It's not often you'll see a filmmaker turn to pirates for help. Almost every American film takes great pains to inform paying viewers just how awful these people are and how much trouble they'll be in if they're ever caught. That's "our" culture, as delivered by the MPAA: the only good pirate is an arraigned pirate (or one that has a boat, died a couple hundred years ago and resides safely on the MPAA's side of the screen).

But that's the US. Other cultures have their own take. Notable Indian filmmaker Anurag Kashyap views piracy as just another way to get his message to the masses. Incredibly efficient pirates in Nigeria spread purloined films as far as they could reach, creating new markets for Nigerian filmmakers. China's film industry continues to thrive despite being held up constantly as an example of unchecked IP infringement.

Here's another filmmaker who recognizes what pirates can offer a filmmaker on a budget. Patrick Mureithi, a Kenyan filmmaker who currently lives in Springfield, Missouri, is hoping to show his documentary on post-election violence and rebuilding in his home country, and is raising travel funds via Indiegogo. Most of this $5,000 will go directly to travel expenses, as Mureithi is counting on some of his countrymen to handle the rest.

I need to raise at least $5,000 for airfare, meals and transportation. Airfare is $2,000, transportation and meals another $2,000, and $1,000 is for miscellaneous expenses. My hope is to show the film on national television, and also to distribute it at minimum cost via the DVD piracy industry. Anything extra that I raise will go towards venue and equipment rental so that I can host public awareness forums.

When money's tight, no one does better, cheaper distribution than those whose only "business" is cheap distribution. With this "industry" already well established in Kenya, Mureithi simply needs to get his finished film into their hands and let them do what they do best -- get his film into the hands of as many Kenyans as possible.

"Kenya: Until Hope is Found," tells the story of severely traumatized men and women who learn various ways of taking responsibility for their own healing. This is a message that will resonate in the hearts of many, and will help start conversations about the need to heal from trauma, without which there can be no lasting peace. This is a message that is relevant not just in Kenya but to EVERY human being on the planet.

Hopefully, Mureithi will get his film funded and spread throughout Kenya. Roger Ebert has tweeted his support, calling the filmmaker's project an "urgent documentary." With Kenya teetering on the edge of genocide (according to Genocide Watch), the upcoming 2013 election could prove to be the tipping point, one that Mureithi hopes to head off with widespread viewing of his film.

The Republican Study Committee, which is the "conservative" caucus of Republican members of the House of Representatives -- last seen here for cowardly retracting their excellent policy brief on how to fix a broken copyright system -- held an open Q&A session on Twitter in which many of its members agreed to take questions from people tweeting with the hashtag #askRSC. Plenty of people, including myself, asked the members for their opinion on Derek Khanna's excellent paper. And not a single Representative answered any question about copyright.

Whoever was tweeting for the Republican Study Committee itself did respond, blandly, to two questions -- first by repeating the silly claim that the paper was pulled because it did not reflect all viewpoints, and then later arguing that it had to do with the fact that copyright was not a left or right issue. But, leaving aside the dodging by the RSC on key questions related to the study, it's somewhat stunning that no Representative would respond to a single question about copyright in over four hours of taking questions.

It makes you wonder: why is Congress so afraid to debate our broken copyright system? Who, exactly, are they afraid of?

As discussed, and contrary to the RSC's later claims, Khanna's paper lays out a very compelling case for why conservatives should be leading the way to fixing copyright. It seems like a quite reasonable subject for the members of the RSC to be willing to comment on, but outside of Darrell Issa's brief tweet in support of the paper, it appears that the over 130 members of the RSC won't even discuss one of the more pressing issues that many of their constituents are concerned about.

Angela Merkel may be Germany's Chancellor, and therefore a busy woman, but since she trained as a chemist, you might expect her to have a more positive view about new technology than this statement from a recent interview (original video in German), reported by the Netzpolitik blog, would suggest:

I regard the print media as very important. Being able to read is quite another thing from being on the Internet -- something that naturally will grow, and increase in importance. Nonetheless, the ability to read is something very, very important. And therefore I hope that, alongside the strong development of all the new media, all the well-known newspapers, the print media, the magazines, have a good future.

What's strange here is that the vast majority of those newspapers and magazines publish all or most of their articles online as well as in printed versions. The words are identical, so what magic ingredient does Frau Merkel think is missing online? It can't be the readability, since digital versions are arguably more legible, thanks to the ability to change the print size for those whose eyesight is not what it was.

The only real difference is that online versions are insubstantial, simply an image on a screen, while printed versions consist of ink on paper. Maybe her comment does, in fact, reflect her past as a chemist, and what she secretly misses is that characteristic odor of printing inks. Perhaps she just needs a iSmell Personal Scent Synthesizer device or equivalent.

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