While lots of folks have been declaring the 3D movie obsession dead for a while now, the studios still love 3D movies. In this age where they're looking for ways to create formulaic premium experiences that get people to go out to the theaters, they seem to have jumped on the 3D bandwagon full force. Of course, as with all things Hollywood embraces too strongly, that's now leading to backlash, mainly because rather than do it well and where it makes sense, the big studios are basically just looking to add 3D to whatever they can and hope people will pay the premium. It's a short term strategy, but Hollywood execs aren't exactly known for their long term outlooks.

That said, Disney -- the poster company for supporting extreme copyright monopolies -- has apparently discovered a form of intellectual monopoly that it doesn't like so much: patents. Last week it filed an emergency motion to try to insert itself into the sale of some patents that cover the 3Difying of old films, from a company, Digital Domain Media Group (DDMG), that went bankrupt. The patents were sold to a company called RealID, and that seems to scare Disney. The link above to The Hollywood Reporter has the details of the back and forth over the dispute, in which it appears that Disney had an option to get a full license to the patents, but for reasons that suggest someone was asleep at the wheel, the company did not officially exercise that option. Now it wants to block the sale unless it can get a guarantee that it won't get sued.

There's got to be some amount of irony to see copyright maximalist Disney suddenly running into issues over the possibility that patents might block it from doing something it wants to do.

The CIA must still be smarting from its portrayal as torture-happy thugs in the critically acclaimed/declaimed "Zero Dark Thirty." Not only did acting CIA director Michael Morell take the time to claim that *shock* a Hollywood film took "significant artistic license," but the agency's website has published a supposedly myth-busting piece that aims to portray the CIA as a bunch of good guys (and girls) who always play by the rules. I suppose being a secretive agency that's frequently linked with torture, assassinations, indefinite detention and round-the-clock surveillance isn't as much fun as it used to be.

It's a very sparse selection of myths, attached to even sparser "debunkings." Sadly, the CIA's debunkings can be easily debunked simply by taking a few quick peeks into the past, along with even briefer peeks into its present actions.

Myth: Everyone at the CIA is a spy.

The CIA points out that the agency is more likely to recruit foreign agents to do local spying work (sometimes with catastrophic outcomes), leaving the homeland force free to establish mini-fiefdoms in the manner best befitting bureaucrats operating with little to no oversight. Hardly as glamorous as jetting all over the globe while reading a Mandarin-to-English dictionary, but on the other hand, it keeps the agents close to their homes and loved ones they're endangering simply by acting like any other bloated government agency.

With more than 90 percent of all CIA employees now living and working entirely within the United States, most CIA employees are far from the sources of intelligence needed to protect Americans...

The intelligence bureaucracy likes this [needing a few billion more in the budget to "hire better people"] because it lets them create ever more layers of managers, who swan about Washington area conference rooms "communicating." What is needed is more intelligence operators on the ground, and the intelligence they gather must be sent to where it's needed quickly.

The intelligence on Northwest Flight 253 was delivered to an American Embassy in Nigeria by the suspect's father. But this information could not be processed through the masses of chiefs and deputy chiefs in the time needed, roughly five weeks. The enormous and redundant staffing of U.S.-based offices with administrators and managers, arranged in complex hierarchies, stifles the flow of intelligence coming in from the field.

Myth: The CIA spies on US citizens.

The CIA post reminds us that domestic spying duties belong to the FBI, even though it admits to working closely with the Bureau, along with other law enforcement agencies, to aid them with their domestic spying operations. But! It "does not collect information concerning the domestic activities of US citizens." Except when it does, as it quite possibly is doing currently in its partnership with the NYPD, or as it has in the past on multiple occasions.

Project MERRIMAC was a domestic espionage operation coordinated under the Office of Security of the CIA. It involved information gathering procedures via infiltration and surveillance on Washington-based anti-war groups that might pose potential threats to the CIA. However, the type of data gathered also included general information on the infrastructure of targeted communities. Project MERRIMAC and its twin program, Project RESISTANCE were both coordinated by the CIA Office of Security. In addition, the twin projects were branch operations that relayed civilian information to their parent program, Operation CHAOS. The Assassination Archives and Research Center believes that Project MERRIMAC began in February 1967.

Project RESISTANCE was a domestic espionage operation coordinated under the Domestic Operations Division (DOD) of the CIA. Its purpose was to collect background information on groups around the U.S. that might pose threats to CIA facilities and personnel. From 1967 to 1973, many local police departments, college campus staff members, and other independent informants collaborated with the CIA to keep track of student radical groups that opposed the U.S. government's foreign policies on Vietnam. Project RESISTANCE and its twin program, Project MERRIMAC were both coordinated by the CIA Office of Security. In addition, the twin projects were branch operations that relayed civilian information to their parent program, Operation CHAOS.

Then there's this bit of unpleasantness, uncovered by the very unflattering Church Committee report:

The major facts regarding CIA domestic mail opening may be summarized as follows:

a. The CIA conducted four mail opening programs in four cities within the United States for varying lengths of time between 1953 and 1973: New York (1953-1973) ; San Francisco (four separate occasions, each of one to three weeks duration, between 1969 and 1971) ; New Orleans (three weeks in 1957) ; and Hawaii (late 1954 -- late 1955). The mail of twelve individuals in the United States, some of whom were American citizens unconnected with the Agency, was also opened by the CIA in regard to particular cases.

b. The stated purpose of all of the mail opening programs was to obtain useful foreign intelligence and counterintelligence information. At least one of the programs produced no such information, however, and the continuing value of the major program in New York was discounted by many Agency officials.

c. Despite the stated purpose of the programs, numerous domestic dissidents, including peace and civil rights activists, were specifically targeted for mail opening.

d. The random selection of mail for opening, by CIA employees untrained in foreign intelligence objectives and without substantial guidance from their superiors, also resulted in the interception of communications to or from high-ranking United States government officials, as well as journalists, authors, educators, and businessmen.

e. All of the mail opening programs were initiated without the prior approval of any government official outside of the Agency.

Myth: The CIA is above the law.

If you possess the cognitive dissonance needed to disregard the CIA's illegal domestic spying and solely concentrate on this "myth," you run headlong into this -- the first rule about being "above the law" is: never declare you are above the law. It just makes people upset. The CIA's post points to the National Security Act of 1947 and the fact that it reports to two Congressional oversight committees as evidence that it couldn't, even if it wanted to, operate in an "above the law" fashion.

Of course, it's easy to stay within the confines of the law if you get applicable laws waived. Now everything's "legal" because the CIA has a nice stack of administration-stamped get-out-of-jail-free cards!

The administration recently approached members of the U.S. Congress to seek a waiver that would allow the CIA to use cruel, inhumane, or degrading treatment on detainees in U.S. custody outside the United States.

Moreover, administration officials have previously told Congress that they do not consider CIA personnel operating outside the United States to be bound by legal prohibitions against “cruel, inhumane, or degrading treatment” under treaties to which the United States is party.

These get-out-of-jail-free cards are needed because terrorism, dammit.

Although the CIA will not acknowledge details of its system, intelligence officials defend the agency's approach, arguing that the successful defense of the country requires that the agency be empowered to hold and interrogate suspected terrorists for as long as necessary and without restrictions imposed by the U.S. legal system or even by the military tribunals established for prisoners held at Guantanamo Bay.

These exemptions are of utmost importance, otherwise everyone from senior State Department officers to the Red Cross, is going to accuse the agency of participating in a number of illegal activities.

[T]he New York Times reported that Richard Nuccio, a senior State Department officer, has been threatened with criminal charges and faces the ruin of his government career because last year he made it known to a member of the House Intelligence Committee that the CIA had repeatedly lied to it, in defiance of the law, about its responsibility in the murders of an American citizen and the husband of another American in Guatemala.

The CIA argues that it is a crime (the Justice Department opened a criminal investigation of Mr. Nuccio) for an official of the government to privately inform an appropriate member of Congress -- properly cleared to receive classified information -- that the CIA had lied to Congress about illegal actions that included complicity in murder.

The State Department, after investigation, imposed a year's security probation on Mr. Nuccio. That decision was overruled by the CIA -- an unprecedented action -- and John Deutch, CIA director, now has appointed a special outside panel to advise him as to whether Mr. Nuccio should be forced out of government, and effectively out of a career in international relations.

It's tough to look like the "good guys" when you've got the Red Cross pointing out your illegal activities.

Red Cross investigators concluded last year in a secret report that the Central Intelligence Agency’s interrogation methods for high-level Qaeda prisoners constituted torture and could make the Bush administration officials who approved them guilty of war crimes, according to a new book on counterterrorism efforts since 2001.

The book says that the International Committee of the Red Cross declared in the report, given to the C.I.A. last year, that the methods used on Abu Zubaydah, the first major Qaeda figure the United States captured, were “categorically” tortured, which is illegal under both American and international law.

And, of course, using US and Canadian citizens as test subjects for a variety of psychological and physiological experiments, including sensory deprivation, torture and sexual abuse, isn't illegal -- unless you get caught.

Project MKUltra is the code name for a covert research operation experimenting in the behavioral engineering of humans (mind control) through the CIA's Scientific Intelligence Division. The program began in the early 1950s, was officially sanctioned in 1953, was reduced in scope in 1964, further curtailed in 1967 and "officially halted" in 1973. The program engaged in many illegal activities; in particular it used unwitting U.S. and Canadian citizens as its test subjects, which led to controversy regarding its legitimacy. MKUltra involved the use of many methodologies to manipulate people's individual mental states and alter brain functions, including the surreptitious administration of drugs (especially LSD) and other chemicals, hypnosis, sensory deprivation, isolation, verbal and sexual abuse, as well as various forms of torture.

The scope of Project MKUltra was broad, with research undertaken at 80 institutions, including 44 colleges and universities, as well as hospitals, prisons and pharmaceutical companies. The CIA operated through these institutions using front organizations, although sometimes top officials at these institutions were aware of the CIA's involvement. MKUltra was allocated 6 percent of total CIA funds.

Myth: The CIA arrests people who break the law.

Quite right. The CIA only "detains" and "holds" suspects, sometimes indefinitely, in super-secret "holding facilities" scattered around the globe and away from the prying eyes of various governments, including our own. Sure, the CIA won't be coming after the drug dealer that lives in your neighborhood, but if your name is something like Hussef al-Foreigner and you live somewhere we're currently at "war" with (currently: the rest of the globe, including the United States) and have a third cousin who once accidentally subscribed to Jihadist Quarterly while trying to close a popup, you can probably expect a visit from the CIA, who will take you "downtown" for a few questions that might take as long as 6-8 years to answer correctly.

The CIA operates secret prisons abroad for holding key suspects in the war on terror, President Bush acknowledged Wednesday.

Bush's acknowledgement came as the president announced that he was sending legislation to Congress that would authorize military tribunals for terror suspects and set clear rules to protect U.S. military personnel from facing prosecution for war crimes.

The official also said there were no detainees still in the secret CIA prisons but that the CIA still has the authority to detain suspects.

A Human Rights Watch report details the ultra-scary fact that the CIA can basically "wish you into the corn/poppy/minefield" if it so desires.

The report provides the most comprehensive account to date of life in a secret CIA prison, as well as information regarding 38 possible detainees. The report explains that these prisoners’ treatment by the CIA constitutes enforced disappearance, a practice that is absolutely prohibited under international law.

Myth: The CIA makes foreign policy.

Nope. It only "heavily influences" foreign policy. (The CIA refers to it as "informs.") And why be worried about foreign policy, when it, like local laws, doesn't apply to the agency and its activities. And whatever hasn't been specifically exempted can be flatout ignored, all in the interest of "fighting terrorism."

Congressionally approved exemptions generally authorize activities that benefit a specific U.S. goal, such as countering the terrorist threat to U.S. citizens overseas or combating drug trafficking.

In addition to the exemptions previously discussed, there are other authorities that waive the prohibition on assistance to police forces of foreign countries. For example, the President may authorize foreign assistance when 'it is important to the security interests of the United States'. This allows the President to waive any provision of the Foreign Assistance Act of 1961, including section 660.

See also: selected portions from above debunkings.

"...administration officials have previously told Congress that they do not consider CIA personnel operating outside the United States to be bound by legal prohibitions against “cruel, inhumane, or degrading treatment” under treaties to which the United States is party..."

"The CIA operates secret prisons abroad for holding key suspects in the war on terror, President Bush acknowledged Wednesday... The official also said there were no detainees still in the secret CIA prisons but that the CIA still has the authority to detain suspects."

"...these prisoners’ treatment by the CIA constitutes enforced disappearance, a practice that is absolutely prohibited under international law..."

"For example, the President may authorize foreign assistance when 'it is important to the security interests of the United States'. This allows the President to waive any provision of the Foreign Assistance Act of 1961, including section 660..."

So, citizens and non-citizens, you have nothing to fear from the kinder, gentler Central Intelligence Agency! It's nothing like the torture-happy thuggery portrayed in the latest blockbuster. It's actually much, much worse.

We've done the "paywall' debate over and over again, and it's hardly worth rehashing. However, the latest discussion among those who focus on such things is the fascinating experiment by uber-blogger Andrew Sullivan, who has spent the past few years tethering his blog to big media properties who pay him for the privilege, but who has decided to go completely independent, with no ads and fully supported (he hopes!) by loyal fans of the site paying at least $19.95. As he makes clear, this is not a paywall. At best, you could consider it a very weak "nagwall." All of the content will remain free and available. The full text RSS feeds will remain free from "the meter" (as he calls it). The only people who will be impacted are those who read the site directly and click "read more" on longer posts that have to be expanded to read the whole thing. Those who don't pay and visit the site directly and click read more on those articles will see a few for free and then be asked to pay -- though, they could just revisit the page by finding a link. That's because any visit from a link won't count towards the meter. He's right that this isn't a paywall, and in many ways it's similar to the NY Times' setup, which isn't really a paywall either.

And, the initial results are fantastic. They brought in $333k in the first day, which is pretty amazing. The site has a staff of seven, and it sounds like they're hoping to get over a million to cover salaries and expenses. Also interesting is that the $19.95 payment is a minimum option: there's a pay-what-you-want option above that, and "on average, readers paid almost $8 more" than that minimum. Of course, that data might be skewed by the fact at least one person ponied up $10,000.

First off, I'll say that I think this is a cool experiment and hope that Sullivan succeeds (as it appears he's likely to do). Considering that we're a site with somewhat similar traffic numbers (from what's been reported) and staff, it's encouraging to think that readers would step up and support it to that level. I'm happy that he's not going with a "paywall," but a solution that recognizes the value of having his readers be able to share and link to the blog without fear of bumping into a wall. Also, I agree wholeheartedly with Jay Rosen who highlights that what makes this work is the incredibly strong relationship Sullivan has built with his community. What's that saying? Oh yeah, connect with fans, give them a reason to buy. I've heard that one before. Also, something about being open, human and awesome. Sullivan hits on all those points. So it's very cool to see in action.

As excited as I am to see cool business model experimentation, and to see it in a manner that really is built on not locking up content, there are a few things that strike me as odd about this. These aren't criticisms, per se, because as I've said, I think that the idea is wonderful for a site like Sullivan's Daily Dish, and I think it's quite likely to succeed. But some of the statements that Sullivan made in announcing this, and some of the explanation, just doesn't ring true to me. First up, he tosses out that old chestnut about how "if you're not paying for the product, you are the product." And this is just days after we had a good explanation for why that saying is mostly bullshit. He follows that line with this one:

We want to treat our readers better than that, because you deserve better than that.

That strikes me as equally inaccurate. Treating your readers "better" means making them pay? Really? Yes, it's working in that they're willing to pay (which is great), but it seems ridiculous to argue that your readers are so valuable... that they should pay you. Getting people to pay is a perfectly fine business model if you can pull it off, but it's no more noble than other business models. The readers in that situation may not be "the product," but now they're "the money," and that has its own issues.

Now, of course, we have plenty of experience with this ourselves. We've set up ways that readers can pay us directly as well (and we appreciate each and every one who has supported us in that way!). But we don't claim that one way is somehow more pure than the other -- and we try to focus on providing additional benefits for those who do decide to support us: whether it's neat features, opportunities to hang out or cool merchandise. But there's nothing more "pure" about one model than another.

My second issue is really the flipside of the first. Along with highlighting the "purity" of getting his audience to pay, he denigrates the entire concept of advertising:

The decision on advertising was the hardest, because obviously it provides a vital revenue stream for almost all media products. But we know from your emails how distracting and intrusive it can be; and how it often slows down the page painfully. And we're increasingly struck how advertising is dominated online by huge entities, and how compromising and time-consuming it could be for so few of us to try and lure big corporations to support us. We're also mindful how online ads have created incentives for pageviews over quality content.

Now, it's absolutely true that an awful lot of advertising sucks in exactly the manner described above. But that doesn't mean it needs to be that way. There's a growing recognition in the industry that intrusive and annoying advertising is not the way to go for exactly the reasons that Sullivan explains above. But as we've discussed, when you do advertising right, it's simply good content itself that people want. That's why a month from now, the most popular thing on Superbowl Sunday won't be the football game, but the commercials. There are times that people seek out advertising and are happy to see it. And compelling ad/sponsorship campaigns need to be about that.

Now, it's reasonable to admit that many marketers haven't full grasped this concept, and dragging them, kicking and screaming, into this new era is not something that Sullivan and his team wants to take on. And that's a reasonable argument (and, as someone who's spent way too much time trying to convince marketers of this thing, only to see them default back to silly, pointless, misleading ad metrics, I can completely respect such a decision). But, it seems wrong to slam "all advertising" into a single bucket, just because some (or even a lot of) advertising is done really poorly.

Again, I think this is a great move for Sullivan and his blog, and wish him tremendous success. We're certainly watching closely from over here. But, it still makes me cringe a little to see those two claims being made in his announcement. Yes, perhaps it helps in the positioning -- and framing the whole thing as some grand social experiment in purity over crass commercialism. In other words, it's a form of marketing all on its own. But, I still think it's a bit unfair and exploitative, without being particularly accurate.

Refrigeration is a relatively recent process to keep foods edible longer. Before electricity, people would store blocks of ice and go to all sorts of efforts to keep foods from spoiling. Here are just a few more interesting links about foods that stay safe to ingest for almost unbelievable amounts of time.

• A specialized microwave could zap bread and sterilize it, so the bread could last at least 60 days without growing mold. However, it might take consumers a bit longer to get used to the idea that bread lasts that long.... [url]
• A 2,000-year-old Roman shipwreck was discovered along with food and wine still stored and preserved in jars. Most of the jars are still sealed, so these items are still recognizable as food -- although no one will likely eat these leftovers. [url]
• There's a pretty good reason why alcohol is a critical component of eggnog... it kills bacteria. NB: The alcohol takes a few weeks to kill off the bacteria, so be patient when making a fresh batch before drinking it. [url]

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

A little over a year ago, we noted that large publishing house John Wiley (also the plaintiff in the Kirtsaeng case that seeks to wipe out First Sale rights on many goods) was jumping into the copyright trolling game by suing a bunch of people for supposedly sharing digital copies of the company's "For Dummies" books online (though unlike other trolls, at least Wiley tried to target people who were actually in the same jurisdiction: New York). In typical copyright trolling fashion, the company was seeking that people pay up, but a few apparently ignored the whole thing, leading Wiley to score a default judgment against them. Default judgments are generally meaningless in terms of having a wider impact. It's what happens when the defendant ignores the lawsuit, and most courts just give the plaintiff everything they want (though they don't have to) and leave it to the plaintiff to figure out a way to collect.

In this case, the court has issued default judgments against Tammy Roberts and Fred Burgos. It looks like the case went more or along the lines of how copyright trolls would like: the judge allowed the subpoenas, and a few months later, Wiley amended the complaint to name names based on what it learned from the subpoenas issued to ISPs. And... just before anything else was scheduled to happen Wiley magically dismissed most of the defendants (meaning they paid up). The two exceptions were Burgos and Rogers. Wiley insists it properly served both of them, and they both ignored it -- and now the court says they need to pay $7,000 -- split up as $5,000 for copyright infringement and $2,000 for trademark infringement. This is exactly what Wiley asked for. The judge just took what they asked for and accepted it, which is unfortunately common in default judgment cases.

The trademark claim here seems especially bizarre and it's unfortunate that the judge just granted the default judgment. For it to be a trademark infringement, there needs to be a "use in commerce," and it's unclear how posting something online could be seen as a use in commerce if there was no commercial aspect to it. In the grand scheme of things, these rulings mean very little, since they're default judgments, but they'll likely be used by copyright trolls to try to justify their own actions going forward.

We've covered the various twists and turns of the Al-Haramain case against the US government for a while. If you don't recall, click that link for some background. The short version is that this is the one and only case where someone has evidence of being a victim of a warrantless wiretap, and that's only because the government screwed up and revealed the evidence by accident. Other attempts to challenge the legality of warrantless wiretapping had all failed, because no one could show "standing" that they'd actually been harmed by the policy. But with the Al-Haramain case, with evidence in hand, and some initial wins, eventually the appeals court shot down the case, saying that the government could just claim sovereign immunity and get out of any lawsuit. In other words, the court gave the federal government free reign to do whatever the hell it wants in violation of the 4th Amendment, and even if it's revealed, gave them a massive get out of jail free card. I'm sure that won't be abused at all...

Now, the lawyers representing Al-Haramain have decided that they will not appeal the case to the Supreme Court, on the belief that the "current composition" of the court works against them. In other words, they believe that the current Justices on the court would side with the appeals court in rejecting their case, and then that would be precedent across the country (unless Congress changed the law, which it's unlikely to do). The "hope" then is that somehow, down the road, someone else somehow gets evidence that they, too, were spied upon without a warrant, and it happens in a different district, and (hopefully) that circuit's appeals court rules differently, setting up a circuit split. Oh, and that by the time that happens, the "composition" of the court shifts enough that the court actually respects the 4th Amendment. In other words: none of this is likely. Instead, the feds retain their ability to spy on people without warrants in direct violation of the 4th Amendment.

In other words, bye-bye 4th Amendment. It was nice knowing you.

Last week, we noted that the case of a parodist blogger against Charles Carreon concerning Carreon's threats to wait the blogger out and sue at a later date was mostly over, after Carreon effectively threw in the towel, and admitted that his legal threats were completely empty and he wouldn't pursue the blogger. However, we noted there was still the issue of attorneys' fees. Carreon argued that his settlement offer included an offer of $750 to cover the filing of the lawsuit, and that by accepting it, any other fees were then out of discussion. The public interest lawyers representing the blogger, Paul Levy and Cathy Gellis, pointed out that's not how this works, and noted that they were owed closer to $5,000. And, now, they're ratcheting that up. In a new filing, highlighted by Adam Steinbaugh, they're explaining why Carreon should be on the hook for $40,115, mostly due to Carreon's own actions.

Moreover, although the "groundless or unreasonable" test is an objective one, defendant's conduct shows that he was fully aware that he had no basis for claiming trademark infringement. He refused to waive service of summons because, he said, he did not want to have to defend the litigation, and indeed he thumbed his nose at the efforts to serve him, saying that he was deliberately not going to "expose [him]self to service." Once service was effected, he refused to pay the expenses of service, supposedly because he was going to file a motion to dismiss the complaint, forcing plaintiff file a motion seeking an award of a few hundred dollars in expenses; plaintiff also sought an award of attorney fees for having had to file this motion. And then, when defendant saw that his escape routes had been cut off— that he had been served, and that plaintiff was not going to let him out of the case—he simply dropped his trademark claims unconditionally and offered judgment. Mr. Carreon's course of conduct speaks volumes about his evident recognition of the fact that his claims were meritless; he provides no reason for believing that his decision to drop them was occasioned by anything that he had learned about the merits during the course of the litigation.

Finally, although the groundlessness of the infringement and cybersquatting claims is alone sufficient to support an award of attorney fees under Ninth Circuit precedent, in circuits with a higher standard for finding cases exceptional, a litigant's oppressive conduct is one of the factors considered in support of fee awards. ... Although plaintiff's counsel tried to steer Mr. Carreon away from his threats of litigation, Mr. Carreon responded by ramping up his threats, trying to put the blogger in fear of significant financial liability by, for example, warning that he would seek statutory damages of $100,000... and would employ counsel instead of proceeding pro se for the precise purpose of running up the blogger's liability for attorney fees... he also boasted of his reputation for "litigating appeals for years." ... Once the litigation was filed, and while he was refusing to submit to service, he sent a letter to Mr. Recouvreur's employer,... which might have caused trouble at work for Mr. Recouvreur, by threatening to hold the employer liable for the conduct of its employee, and in any event to impose invasive document preservation requirements.

And after Mr. Carreon was finally served, he tried to threaten his way out of being held responsible for his baseless threats by making an additional threat to sue the employer of plaintiff's lead counsel, unless counsel induced his client to settle on the terms that Mr. Carreon demanded.... Mr. Carreon's decision to offer judgment giving plaintiff his complete success on the merits is perhaps an item in Mr. Carreon's favor in judging his litigation conduct, but in its entirety Mr. Carreon's litigation conduct was sufficient oppressive to form yet another factor in support of a finding that his case was exceptional.

Steinbaugh also notes a few interesting points. There's an indication that the plaintiff may also go after Register.com for exposing the parodist's name. Furthermore, Steinbaugh points out how ridiculous it is that Carreon complains in his last filing about people online wishing him ill-fate, and saying that he will "never inveigh against anyone in the public forum by deriding their character as others have mine." That, of course, is funny, given that his wife, who once claimed that I was a "nazi scumbag" seeking to do "to Charles what they did to Jewish lawyers in Nazi Germany." Uh huh. And it's not like Tara and Charles have calmed down in this department lately. Steinbaugh points out that Tara Carreon is now arguing that Matt Inman is partly responsible for the Newtown massacre. And then there's Carreon's Rapeutation.com site. The idea that Carreon somehow doesn't deride others' character in public isn't supported by the facts.

Separately, Paul Levy has blogged about the latest, providing more context, in which he also notes that Carreon's claims to the court that he never intended to take the blogger to court may actually make things much worse for Carreon, in that it may have opened him up to legal consequences from other venues, including Walgreens, the blogger's former employer, which Carreon threatened to drag into the lawsuit (which he now claims he never intended to file):

In trying to persuade me not to pursue the claim for attorney fees on the merits, Carreon claimed that the suit for a declaratory judgment was altogether unnecessary because, he claimed, he never would have sued for a trademark violation; if we had only waited, he said, we would have seen that.

If, in fact, Carreon never intended to pursue his threats to sue the blogger, that is perhaps the worst of all, not only because it means that Carreon has probably cost himself a great deal of reputational and financial harm for having a big mouth, but also because it puts him at significant risk of other legal consequences. For example, in addition to threatening to sue Register.com, Carreon threatened to sue Walgreens, the blogger's employer when the case began, demanding an extensive preservation of electronic records. We could not help thinking at the time that his real purpose was to try to drive a wedge between the blogger and his source of employment. If Carreon never intended to file such a claim, the blogger may have a claim for intentional intereference with contract, and perhaps Walgreens has a claim of its own for the expenses incurred in complying with potential data preservation obligations relating to an intentionally empty threat.

Oh, also, there may be ethics issues given how Carreon obtained the blogger's name, claiming it was for legal purposes, even though he now claims he never intended to file a lawsuit:

Moreover, if Carreon's current statement about his intentions last summer is true, there may be ethics consequences. After all, without having to file suit, he managed to intimidate the blogger's domain name registrar into placing the blogger's name into the public WHOIS record where other members of the public were able to see it; Carreon himself took advantage of the disclosure to feature the blogger's name publicly on his "rapeutationist" blog. And yet, Carreon now claims, he never intended to file the lawsuit at all.

The Federal Rules of Civil Procedure, Rule 26(b)(5) and the California Code of Civil Procedure, section 2031.285, both require a party who receives information that has been the subject of a claim of privilege to sequester the information pending a final ruling on the privilege. This rule has been applied to information obtained about the identity of an anonymous Internet speaker, and both an ABA Formal Opinion, and ethics rulings in some states, have taken the position that a violation of the obligation to sequester can constitute an ethical issue. Consequently, Carreon's insistence that he was never actually going to institute legal proceedings to vindicate his claim of trademark infringement outs him at risk of renewed disciplinary proceedings by the California and Oregon bar authorities.

Finally, on the point of whether or not further action will be taken against Register.com, as mentioned above, Levy notes that he's been trying to talk to Register.com about their policies, and that's going to determine the next steps:

Carreon's contention that he would never have followed through on his threats if legal action also reflects poorly on Register.com's craven release of the blogger's identity, albeit temporarily. While the case against Carreon was pending, we put Register.com on notice of a possible claim, perhaps a class action claim, for advertising (and charging extra for) a private registration service without providing any real safeguards against spurious claims demanding disclosure of the registrant's identity. We have tried to discuss with that company's counsel how they will handle cases like this differently going forward, and have postponed legal action to see whether such talks could be fruitful. But, to date, it has never been convenient for Register.com's representative to actually discuss its policies and procedures.

Now that the merits of the Carreon case have been concluded, we will have to see whether it is possible to avoid litigation on that aspect of the problem.

The case may be ending, but there are still plenty of loose ends.

In what looks sort of like a government dating ad, the US Patent Office has announced that it's seeking a "software partnership" with the software community, with the goal of "enhancing the quality of software-related patents." To translate: "please come to hear us speak, because we're kind of annoyed that basically everyone who works in software hates patents and thinks software patents are pure evil." This process is kicking off with some roundtable discussions in Silicon Valley and New York City. Unfortunately, the parameters for the roundtable seem fairly limited already:

For these initial roundtable events, this notice sets forth several topics to begin the Software Partnership discussion. The first topic relates to how to improve clarity of claim boundaries that define the scope of patent protection for claims that use functional language. The second topic requests that the public identify additional topics for future discussion by the Software Partnership. The third topic relates to a forthcoming Request for Comments on Preparation of Patent Applications and offers an opportunity for oral presentations on the Request for Comments at the Silicon Valley and New York City roundtable events.

Those are important issues, but it shows where the USPTO is starting from, and it's not about taking a wider look at issues related to software patents, but looking for ways to patch up some of the symptoms of the larger problem. It's good that they're looking to have this discussion, but it seems like a better first step would be to really hold an open discussion first, to hear more of the concerns of software holders.

While we've already covered the "settlement" between the FTC and Google, noting that it's basically a complete win for Google, there are some areas to be concerned about. In particular, Ed Black, from CCIA, calls out the agreement from Google to allow companies to opt out of being scraped and having snippets shown in vertical search results. While the details on this are fairly limited, and no one would have complained if Google had decided to do this on its own, by including it as part of the settlement, it can be read to imply, without any legal basis, that showing snippets of content from another site is an antitrust violation.

The wider impact of this could be serious, in that it could scare off other companies from doing this kind of activity, which is clearly protected under fair use laws. Of course, the FTC's official release on this issue didn't do much to clarify the thinking here, which is a part of the problem. Two FTC commissioners dissented on this particular bit, showing their concerns. Thomas Rosch's dissent (pdf) on this particular issue states he's worried about the implications, whether intended or not:

I am concerned that the majority's apparent position that scraping is a violation of Section 5 of the FTC Act will put the FTC in the position of becoming the enforcer of the copyright laws on the Internet—a task for which it has neither the resources nor expertise, and was surely not envisioned by Congress. As any casual user of the Internet knows, many websites make use of other websites' content; indeed, the business model for many popular websites is based on aggregating or summarizing the content of other websites. As a result of the majority's apparent condemnation of scraping, the legality of these aggregators may be called into question, and the Commission may be inundated with rent-seeking complaints from firms like the alleged 'victims' here.

In other words, in part due to the FTC's own refusal to clarify the thinking here, expect plenty of companies upset about scraping and the use of snippets to now go running to the FTC, using the Google settlement as "evidence" that the fair use aggregation and display of snippets is an antitrust violation. Elsewhere, Rosch points out that the whole issue of scraping seems silly since Google has no "monopoly" on scraping, so it's not even an antitrust issue -- and also that there had been no demonstration of any harm from Google's actions.

Similarly, Commissioner Ohlhausen, while not directly commenting on the copyright issues apparent in this decision, notes that scraping and displaying of snippets -- a key bit of fair use that is central to large parts of the internet -- seems like a bizarre thing to complain about since there is no legal basis for a complaint (pdf) and because the actions appeared to help, not hurt, the companies complaining:

Based on the evidence gathered in this investigation, I saw no factual or legal basis for pursuing... a standalone FTC Act Section 5 claim premised on the so-called scraping conduct.... In particular, there is no viable theory of harm ... for bringing a case....

I am not aware of any evidence that the alleged scraping resulted in either a decline in traffic from Google to the parties complaining about the scraping or any reduction in innovation by existing or potential rivals of Google. In fact, some of the complainants in this matter demonstrated significant growth both during and after the alleged scraping took place. Further, the investigation revealed that most websites appear to approve of Google's use of their content in Google's vertical properties because it leads to increased traffic to their sites. Moreover, the likelihood of possible future harm to competition or consumers from such conduct appears highly remote, particularly given the enormous growth of the use of apps to access rivals' sites or services directly.

In other words, the evidence seemed to show that such fair use of aggregating content and displaying of snippets actually drives innovation and consumer benefit forward.

Furthermore, in a press briefing after the FTC announcement, law professor Eric Goldman made a significant point. For many "review sites" that the settlement applied to, the sites themselves don't even hold the copyright on the reviews in question (the authors do), but the settlement seems to presume that the sites hold the rights.

Unfortunately, because of the nature of the settlement, and Google's willingness to allow companies to opt-out of parts of its aggregation efforts in vertical search, it's going to falsely lead some to believe that anyone else doing this may, in fact, be in violation of antitrust laws. The end result may scare companies off from doing useful innovation, relying on fair use to aggregate content online, and may also increase the burden on the FTC in dealing with similar claims from companies. That would be an unfortunate end result.

While the overwhelming evidence continues to show that video games aren't responsible for turning children or adults into little murder monsters, that doesn't mean there are no negatives to gaming. I don't have children, but I imagine some parents can find it a pain to get their kids to take care of their responsibilities when all they want to do is play games. The question is what do you do about it?

Well, according to one dad in China, you murder the s%@$ out of you kid over and over and over again. Digitally, that is.

Frustrated by his adult son's incessant gaming habit, a man in China reportedly hired a number of in-game master "hitmen" to annihilate his son's avatar over and over again in an attempt to deter him from playing.

Quoting China's Sanqin Daily, Kotaku reports that the fed-up father, identified only as "Mr. Feng," decided to embark on this cyber murder plot as his son seemed incapable of pulling himself away from the computer long enough to find a job.

I have to admit, I love this guy. Your kid likes to play games too much? Hire a bunch of better gamers to make his gaming life a digital nightmare. I imagine if the kid wouldn't stop playing basketball, Dad would get LeBron James on the phone and hire him to shadow the young man and block every shot he attempted.

Regardless, I think we may have to tip our hat to this guy. It would have been quite easy for him to blame the games, call it an addiction, or do any number of things to abdicate his responsibility as a parent. But no, Mr. Feng scrapped some money together and paid people to digitally shoot his son. That is parenting, people.

Glenn Greenwald recently wrote a wonderful post about a journalist's "praise" for a call by Najat Vallaud-Belkacem, a French politician, for Twitter to take responsibility for "hateful tweets" which are "illegal." I'll be doing another post specific to Greenwald's post, but for this one I just want to focus on the part he glossed over: that a French politician is calling for Twitter "to take steps to help prosecute" tweets that France feels are illegal. This is horrifying for a number of reasons, but let's cover one that Greenwald doesn't touch: the idea that a company providing a platform that encourages free speech around the globe should somehow then be responsible for regulating the speech to the point of legal prosecutions against people seems immensely troubling. If someone said something illegal, let law enforcement investigate and handle it. Putting that responsibility on a company is dangerous, and leads to massive censorship. That is the very basis of the Great Firewall of China. The government there has made it clear to ISPs there that they might be held liable if they don't "help" make sure that "bad stuff" online doesn't see the light of day. The response is to overblock, just to be "safe."

Somehow, well meaning people seem to think that "bad" speech is just obvious. But it's not. Speech is speech, and whether or not it's "good" or "bad" may very much depend on an individual's context, sense of humor, situation in life or a variety of other issues. To think that Twitter, or any company, should be in a position to make decisions about a person's ability to speak based on such amorphous concepts is a recipe for disaster -- and basically runs counter to everything that a service like Twitter is about. Vallaud-Belkacem's logic follows the standard censor's argument -- claiming that freedom of expression is important... except for speech she doesn't like.

For what it's worth, I agree 100% that the tweets she's complaining about are offensive and disgusting. But to pin the blame on Twitter is to totally misplace it. It actually serves to take the focus off of those who actually posted the controversial posts, and suggest that if only we hid speech we didn't like, it would go away. That's not what happens. Instead, those who are censored tend to believe that they're being persecuted by a government (or company) that "can't handle the truth" and wants to shut them up. It doesn't encourage the ignorant to be taught why they're ignorant. It doesn't encourage important discussions on why such statements are ridiculous and offensive. Instead, it just tries to sweep everything under the rug.

An interesting post from broadband news reporter Dave Burstein argues that anti-trust regulators in France may have basically enabled France Telecom to hold YouTube videos hostage unless Google backbone partner, Cogent, pays more money:

Millions of French netizens discover their YouTube streams sputter and die or never begin in the first place. Other video services, including TF1, are also struggling. The effect varies, sometimes randomly and sometimes by time of day. Respected consumer organization UFC-Que Choisir found between 20% and 50% of users surveyed online had problems.

Again, the existing connection remains and much of the traffic gets through. But Net traffic always grows and without regularly adding additional capacity many - not all - streams are blocked. French networks, with France Telecom in the lead, are refusing to accept growing traffic from Cogent, a major backbone carrier that services Google. They demand payment to accept all the streams their customers request. The independent French competition authority (Autorite de la concurrence) on September 20 approved the charging plan, leaving no doubt this is neutrality dispute.

The details suggest that this isn't so much a "neutrality" issue as a peering dispute. In fact, it actually sounds somewhat similar to the Level 3 / Comcast dispute from a few years back. In that case, Level 3 was providing service to Netflix, and Comcast worried about the big influx of traffic. Comcast (like France Telecom) demanded that Level 3 pay up for delivering it extra traffic. The bit that's interesting here is that French regulators got involved and said that this was legal in this case, though they're worried about the lack of transparency.

Of course all this does is show, yet again, how the internet's interconnectivity through peering arrangements is increasingly under pressure as certain broadband players become more powerful. And, unfortunately, the public (and their YouTube videos) may be at risk.

The folks over at the CATO Institute have put together a short five minute video on the rush by the federal government to renew the FISA Amendments Act, with no changes, which effectively has sanctioned warrantless wiretapping on millions of Americans. Even though the plain language of the bill suggests it only should be used on foreigners, it's become clear that thanks to weasel language in the bill, and a "secret" interpretation by a secret court, the definition of "targeting" foreigners has been interpreted to mean any communication that might possibly somehow shed light on some sort of illegal activity that might possibly maybe involve foreigners sometimes in some manner. As such, it seems likely that the NSA, in particular, has used this bill and its secret interpretation to sweep up huge databases of information about Americans, even as most people (including many in Congress) believe the bill only is used to spy on foreigners. The video is especially worth watching for the brief segment involving Senator Dianne Feinstein, who was the main supporter of extending these rules, responding to Senator Wyden's amendment that sought to have the NSA provide an estimate -- just an estimate -- of how many Americans had their information swept up by the NSA in its dragnet. Feinstein insists that there's a secret reason for why this information needs to be kept secret -- and promises to wave the piece of paper around (if someone hands it to her) that contains the secret reason that she can't tell us.

So, if you're keeping track at home, we've got a bill with plain language that most people incorrectly believes means that it only involves collecting data on foreigners. But thanks to a secret interpretation, it's almost certainly being used to collect tons of data on Americans, which is being kept secret. Furthermore, the NSA claims that it must keep secret whether or not it even has an estimate of how many Americans' have had their data sucked up by this secret program because of, well, a secret reason.

Does that actually make anyone feel safer?

Prenda Law, the copyright trolling law firm that was accused by a judge of committing "fraud on the court," has now been accused of committing more fraud on the court in its very attempt to fight the original claim of fraud on the court. Yes, they're being accused of fraud on the court to cover up their original fraud on the court. Grab some popcorn, because this one keeps getting more and more entertaining.

As a bit of background, we've been writing a number of stories lately about the copyright trolling law firm, Prenda Law, and some of its nuttier actions in a variety of cases. However, the case that still tops them all is the one from Florida that had the Abbott-and-Costello worthy hearing, involving bumbling lawyers all trying to disassociate themselves from the case, and the mysterious appearance of John Steele, one of the folks behind Prenda Law, who has been told not to practice law in Florida, in which he was clearly orchestrating things, and the judge called him on it. The lawyer for the defendant in that case, Graham Syfert made the case why Steele and Prenda Law deserved sanctions for its actions, but Prenda's actions just haven't stopped.

The firm hired a Florida-based law firm that specializes in dealing with "white collar crime" to defend itself, and then filed some declarations for some of the parties, including one Daniel Weber. Weber is the husband of Sunny Leone, and an executive at SunLust Pictures, the company that officially filed the original trolling lawsuit. As came out in the hearing, no one actually representing SunLust was in the court that day. There were lawyers hired by Prenda who wanted nothing to do with the case. There was a letter from Prenda "sole partner" Paul Duffy insisting that Prenda had nothing to do with the case, and there was John Steele -- who also denied having anything to do with the case, other than being generally interested. The "official" representative of the company was Mark Lutz, who had worked for Prenda, but who the judge eventually got to reveal was not actually a representative of SunLust in any way, shape or form. He was just hired to sit there and pretend to be a representative of the company.

So... Weber files a declaration that tries to explain why he couldn't be in court that day, claiming that he and his wife were in India filming a movie (which is what Steele had suggested in court). The only problem, as uncovered by the site Fight Copyright Trolls, was that Weber's own Twitter feed showed that he was very much in the country that day. It also showed that Weber misspelled his own name on the filing, writing it Webber. A new affidavit was quickly filed after this was called out, in which he claimed to "clarify" his earlier statement, arguing that he had originally "been scheduled" to be in India on that date, but had changed plans due to an "emergency surgery" on his dog. Again, FCT showed some Twitter evidence that suggested this wasn't true, and that Weber had made earlier statements showing he had no intention of being in India until early December (and that he and his wife had other travel plans around the US during this time, which they took, suggesting the "sick dog" excuse, even if true, wouldn't explain why he was unable to attend).

Now, following all that, Syfert has filed an incredible new motion for sanctions against John Steele, going even further in suggesting dirty tricks as it relates to the Weber affidavit. In other words, Syfert is suggesting that, in defending the charges of "fraud on the court," Steele is committing another fraud on the court. In the filing, Syfert claims that Weber's affidavit was not actually from Weber at all, but was actually created by John Steele himself. The filing notes a number of issues discussed above, as well as some other questionable things, including the timing of the execution and faxing of the document based on statements and corresponding tweets.

The Declaration of Daniel Webber was an attempted fraud on the Court, explaining his absence from the hearing first by distance in India, but no mention of a city, and somehow misspelling his own name or signing without reviewing a single word. The current amended exhibit, the Affidavit of Daniel Weber ... is another fraud on the Court by claiming an emergency dog surgery during the November 27th hearing, such surgery having occurred at least three days prior to the hearing, according to public statements. Also according to those public statements, Daniel Weber was recording a new album with his rock band on November 27th, 2012 and a behind the scenes video was recorded.

Although a correction has been issued to the Declaration of Daniel Webber, such correction would have not been made, and fraud would have continued, if not for the actions of Defendant. The amended Affidavit states that Mr. Weber was "unexpectedly in Los Angeles" due to a dog surgery on the date of the hearing, but evidence from his twitter account shows that he was in Los Angeles on the 23rd of November, and so Mr. Weber had at least four days to expect that he was in Los Angeles on the date of the hearing. Defendant should not be forced to continuously be a gatekeeper of the correct spelling of the name of Plaintiff's principals or the truth of statements made in this court under penalty of perjury.

The filing is full of more examples of questionable statements or behavior from Steele with relation to the case. For example, in Steele's affidavit, he explains why he was speaking to Lutz, but Syfert notes that this argument makes absolutely no sense given the context and other statements in the filing:

Paragraph twenty of Steele's affidavit states that he drove with Mark Lutz to Tampa to observe the hearing before this court, but paragraph twenty-one states that in the middle of the court proceeding, he felt the need to reassure his existence to Mark Lutz... Although they had spent four hours in a car together, found a parking spot together, went through security together, rode up in the elevator together, and entered the courtroom together, John Steele asks this court to believe that he suddenly felt compelled to notify Mr. Lutz, "Hey, I'm here." as if Mr. Lutz was worried about John Steele suddenly abandoning him in Tampa, or turning invisible like a superhero.

The courtroom was entirely empty other than court staff, Mr. Lutz, Mr. Steele, Mr. Syfert, and the Defendant. Mr. Steele was the only person present in the gallery of this court. Mr. Steele was present when the Court took the bench, and before any proceedings. Mr. Steele did not relieve himself of the Court, and then re-enter- nor did he perform any other disappearing act until after the Court dismissed the case. Common sense states that Mr. Steele should have no desire or need to reassure Mr. Lutz of his existence within the courtroom in the middle of a proceeding. Mr. Steele, being an attorney practicing before the federal courts of the various states, should have known that it was improper for him to speak up in the middle of a proceeding. It is less likely that he was reassuring Mr. Lutz and it is much more likely that Mr. Steele was trying to explain to the struggling Lutz his role as a 1099 contractor who is available to be appointed for Prenda Law clients, or to inform him what attorney was hired.

Then there's this slip up by Brett Gibbs, a lawyer for Prenda in California, who we've been writing about in connection to some of the Prenda California cases. As you may recall from the original hearing, the lawyer, Jonathan Torres, who Prenda had hired to handle the case, but who was desperately trying to get out of it, told the court that his only communication had been with Gibbs. Syfert notes that despite Steele claiming to have nothing to do with the case, in Gibbs' own affidavit to the court, he includes the email he sent to Torres which also shows who he bcc'd (which Torres never would have seen). Guess who's there?

Attorney Torres testified at the hearing that his only communication had been with Brett Gibbs.... John Steele has always denied any involvement in this case other than driving with Mr. Lutz to the hearing.

In the Affidavit of Brett Gibbs, he includes e-mail communication between Gibbs and Torres regarding Prenda’s great interest in having Mr. Torres file another bar complaint against Graham Syfert for his actions in this case.... Gibbs blind carbon copies two e-mail addresses in his communication, so that Mr. Torres would not know that they were being sent to those particular individuals. He blind carbon copies jlsteele@6881forensics.com (John Steele, Illinois attorney, subject of this motion) and prhansmeier@6881forensics.com (Paul Hansmeier, Minnesota attorney (also licensed State of Illinois, Minnesota and others), former partner of John Steele))....

John Steele and Peter Hansmeier were supposed to have sold all their interest in Prenda Law, Inc. to Paul Duffy and Joseph Perea when Prenda Law, Inc. purchased Steele|Hansmeier, PLLC. Also compelling and interesting is the fact that Paul Duffy, the man who sits where the buck is supposed to stop at Prenda Law, is unquestionably absent from inclusion in the correspondence between Gibbs and Torres.....

Who Gibbs chose to include on such an e-mail should be explanatory as to where final decisions rest as well as the true management of the many faces of the current Prenda Law. Not Mr. Duffy, Illinois Principal. Not Mr. Wasinger, Florida Plaintiff's counsel. Not Mr. Lutz, a Corporate Representative"for hire." Not Mr. Weber or Ms. Leone. Now that Perea is out of Prenda Law, Paul Duffy is really the only person who should have an interest in what is going on between Torres and Gibbs. Instead, we find Mr. Steele included.... For the level of involvement claimed by Mr. Steele, the urging of Torres to file a bar complaint against Graham Syfert is unnaturally Mr. Steele's concern. The use of the bcc, or blind carbon copy, ensured that Mr. Torres would not have record of Mr. Steele's or Mr. Hansmeier's involvement in the communication.

It would appear this legal soap opera is far from over. Stay tuned...

The DOJ triumphantly announced the five year sentence handed down to Jeremiah Perkins, who was named as the "leader" of IMAGiNE, a group that coordinated the recording of movies in theaters for upload to the internet. The DOJ and ICE arrested many of those involved in the group last year, and was able to convince them to do plea deals over "conspiracy to commit criminal copyright infringement." It's a bit of a stretch to claim their actions met the requirements of "criminal" copyright infringement, but they did get some money for their actions, and that tripped the wire. I don't have an issue with them getting in trouble for their actions, which were pretty blatant infringement, though I'll say that the punishment of five years in jail seems ridiculously excessive when this one group's actual impact on movie piracy was non-notable. So many leaks are internal leaks, rather than cams -- and even if they take down this one group, it's not like it stopped any movies from showing up online quickly. And, of course, none of this does anything to make people buy. So I fail to see the value in spending taxpayer money going after these people, and then paying for their prison sentence at a time when our prisons are overcrowded.

But the issue that gets me about this is this bit, highlighted by TorrentFreak:

After his imprisonment ends Perkins will be subjected to a further three years of supervised release and will be banned from possessing “any electronic device with the capability or reproducing and distributing copies of copyrighted materials.”

That's basically pretty much any electronic device these days. Computer, phone, camera, tablet. Anything that can record audio or video or take a picture has that capability. Five years from now, it's likely to include many more commonly used devices as well. That seems ridiculously excessive. Especially given that devices that can infringe on copyrights also do a ton of legitimate and important things, to say that he can't possess any such device seems ridiculously limiting. The MPAA, who pushed this prosecution (which, again, was led by Neil MacBride -- the former industry anti-piracy enforcer -- who now does the same job for the government and rarely misses an opportunity to support his former colleagues), don't see any problem with completely taking away all devices that can infringe on copyright from someone, but that's because they still don't realize how central to culture and society such devices have become these days.

As has been covered here before, many game developers and publishers are actively searching for ways to scuttle the used game market. Efforts to date have usually included some sort of online requirement (which doubles as DRM) or withholding additional content from secondhand purchasers through the use of one-time download codes.

The argument that used game sales are adversely affecting the profitability of games would seem to be debunked with each year of record-breaking sales, but somehow major publishers are still able to convince themselves that no one should be allowed to purchase games for anything less than the full retail price. Also ignored is the fact that money made from trade-ins is often put toward the purchase of new games -- and that the secondary market gives new purchases additional value, as they can be traded in down the road.

Ars Technica reports that Sony seems to have found a way to prevent secondhand sales without having to rely on one-time codes or any sort of online component that could potentially be circumvented. Sony's patent application details the deployment of embedded RFID chips as a weapon against secondhand sales.

A newly published patent application filed by Sony outlines a content protection system that would use small RFID chips embedded on game discs to prevent used games from being played on its systems, all without requiring an online connection. Filed in September and still awaiting approval from the US Patent Office, the patent application for an "electronic content processing system, electronic content processing method, package of electronic content, and use permission apparatus" describes a system "that reliably restricts the use of electronic content dealt in the second-hand markets."

The used-game blocking method described in the patent involves a "radiofrequency tag" and a type of programmable ROM chip that are paired with each game disc and can communicate wirelessly with the game system. The tag and chip can be used to store "unique information" about each console the game has been played on. Thus, when the game is used on a second system, the unique information stored on the disc can be compared to the information stored inside the new hardware, and in turn checked against "use permission" data stored on the EEPROM chip itself. As described in the patent, this "unique information" could be a system identifier or some sort of unique user ID that is somewhat portable between systems.

As Ars Technica points out, this could double as an anti-piracy device, ruling out off-the-shelf media for copying. In addition, the patent mentions using the RFID tag to "decrypt content" on the disc, which could be used to lock up certain content until its paid for. In theory, this would allow secondhand sales, but allow the publisher to charge purchasers a fee to unlock the full game.

Two concerns pop up immediately. There's a possibility that the still-theoretical RFID system would make games unplayable if lent to others or taken to a friend's house and played on their system. This seems a bit extreme, but publishers, who are actively seeking to destroy the secondhand market, very likely wouldn't mind if these two options were taken off the table. This leads to the second concern: creating discs that are "locked" to a certain system would seem to violate the right of first sale. This means reselling or lending the game would no longer be an option, both of which are currently permitted by law. (Although under debate at the moment...) As Ars Technica points out, though, there are ways publishers and developers can skirt this issue:

While this kind of resale-blocking technology would seemingly run afoul of the first sale doctrine codified into US law, legal experts seem unsure about whether that doctrine would be enough to overcome the end-user license agreements common to video game sales. After all, the practice of restricting game resale is already taking root through the wide adoption of digital distribution, which prevents players from reselling downloadable games in almost all cases.

If this patent is granted and results in any of the above scenarios, we'll have finally reached the point where physical items are just as ethereal (in terms of rights granted to the purchaser) as the "licenses" currently being sold under the name "ebook," "digital download" and "mp3." This would be great news for overreaching copyright holders, not so much for the rest of the public which is being asked to shell out larger amounts for AAA titles with each console generation.

It seems unlikely that Sony would pursue this hardline against used sales, but it's not like it hasn't run up a string of bad decisions in the recent past. Not only that, but the additional "anti-piracy" features of the system, combined with curbing secondhand sales it receives nothing from, may be just too irresistible to turn down.

Seeing as the age of the average gamer is hovering right around 30 (and has been over that -- most recently at 37, until the recent addition of many, many younger gamers on various new devices pushed it back several years), it's nice to see that Australia has finally decided to give them some age-appropriate games to play.

Australia's R18+ classification for video games came into effect yesterday.

Until Jan. 1, 2013, Australia was one of the few developed countries in the world to not have an R18+ classification for video games. The highest rating for video games was MA15+, which meant that any game that the country's Classification Board found too mature for the MA15+ category was Refused Classification and effectively banned from sale.

The R18+ classification comes into effect after the Federal and State governments passed legislation last year to introduce the rating.

Now, one possessing a bit of logic might ask why Australia needs an R18+ when it already has a MA15+ rating, which would presumably cover everyone above the age of 15. Well, that's where the Australian government's insistent infantilism of gamers comes into play. If the game was deemed to be too something for 15-year-olds, it was refused classification. If you were the proverbial 30+ year-old "average gamer," you were limited to games appropriate to the 15-and-under set. Sure, you could still get some of the more mature hits, but only after they'd been de-fanged, de-bloodied and de-profanitized.

South Australia's Attorney General is fully behind the new rating, which should allow many, many gaming adults to finally play titles the rest of the world has been enjoying for years already.

We've actually achieved a good balance where in effect MA15+ has become more restrictive and games that previously would have been in MA15+ are now going to be sitting in R18+. It's a win for the gamers who wanted to have the opportunity as adults to purchase these games, but it's also a win for parents because they can be more confident that games that are age-inappropriate will not be available to people under 18.

Older titles will not automatically receive the new rating and must be resubmitted. And there's still a chance that the government will choose to refuse classification on any number of games, even with this new rating in place. It's a long-past-due step in the right direction for a government that has been extremely hesitant to let gamers sit at the "adult" table.

But even as the new classification is implemented, there's concern that it's already outdated. Head of Interactive Games and Entertainment Association (iGEA) Ron Curry thinks the criteria the R18+ rating addresses no longer matches up with the issues that concern parents today:

"The current guidelines have six criteria (themes, violence, sex, language, drug use, nudity), which are slowly becoming less and less important," Curry says. "There are other things that parents are worried about: they're worried about user-generated content, they're worried about privacy, they're worried about access to children chatting with adults, they're worried about gambling, they're worried about in-game purchases and geo-locating.

"So if we're going to look at classification, we need to ask, 'Why do we classify?' We classify to give people information about content, mainly for parents, the argument goes. Are we addressing their concerns? Probably not."

In the future, it might be that parents will be better served with a list of possible "side effects" of the games their children are playing, much in the way that many apps list the "permissions" it will be granting itself if downloaded and installed. It could very well be that privacy concerns will trump hand-wringing over pixelated violence in the future, as the former becomes a scarcer commodity. But for Australia, recognizing that adults make up a majority of gamers is a good start, even if it is long overdue.