So much of what we seem to talk about is really the clash of disruptive innovation and the opportunity it creates with the existing infrastructure (business, legal, physical) and how they seem to clash in ways that tends to limit and/or delay the innovation. Sometimes you can see these clashes coming from miles away -- and autonomous vehicles is one of those clashes. New Scientist has an article by Bryant Walker Smith, discussing the coming clash over autonomous vehicles by asking a simple question: how does a traffic cop give a ticket to a driverless car? Think about it for a bit, and it can be a pretty complex question. While Walker Smith delves into a few of these questions, there are many more -- and lots of people are trying to dig in now.

For example, the law school at Santa Clara University held an entire conference on the legal implications of autonomous vehicles, leading to the Santa Clara Law Review publishing a whole bunch of papers on the subject (including one by Walker Smith). One hopes that lots of people putting some thought into the legal implications today will help us avoid the political messes tomorrow, but given what we know from the history of disruptive innovation, that seems unlikely. Fully expect someone whose businesses are disrupted by autonomous vehicles to make a giant stink about how "unsafe" they are and how they need to be regulated to a degree that makes them effectively impossible to exist.

The opportunities to hitch a ride to space are growing by leaps and bounds now. Just a few years ago, you needed to be a multi-millionaire with the right stuff to buy your way on a rocketship to space. Now, you just need to be some kind of marketing phenomenon that can help with a marketing campaign (or have a few hundred thousand bucks to spare). Here are some examples of some ordinary folks who will be going up in space (suborbital) in the near future.

• In case you missed it, an Axe marketing campaign during the Super Bowl is looking for people willing to sign away their publicity rights for a chance to ride on a sub-orbital spaceplane. The marketing is aimed at men, but women can apply, too. Ultimately, who ever wins this competition will have to pass all of the physical training and tests before going. [url]
• Coco Brown, an American porn actress, is spending $100,000 to get on a SpaceXC commercial flight. She'll be the first porn star in space, if she completes the training, and expects to go up in 2014. [url]
• Ashton Kutcher has been promised the 500th seat on Virgin Galactic's spaceplane service. Virgin tickets usually cost about $200,000 -- so if you want to buy the 501st seat next to Ashton.... [url]
• Becoming a female taikonaut has two additional requirements that men don't have: being a wife and mother. Chinese astronauts have a pretty long list of disqualifiers, including: bad breath, cavities, a thick regional accent, scars, snoring, etc, etc. [url]

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

Yesterday, Tim Cushing wrote a post about Teri Buhl, a journalist who claimed via her Twitter profile that her tweets were "not publishable." When questioned on this, she threatened to sue if someone republished her tweets. Some knowledgeable lawyers gave their opinion on this (that it was all hogwash), and at least one had a short email exchange with Buhl. Hilarity ensued. You can read that whole thing for yourself.

This is the followup. A little over an hour after the post went live, we received an email from Teri Buhl demanding a "correction" (without explanation) and saying that we needed to call her about Tim's story:

I would like an editor to please call about the story Tim just wrote on me. Like now

We have no obligation to call her, and given her previous engagements with others, we felt that there was no reason to discuss this with her. She later posted a comment on the post itself, asking Tim to contact her. He did, and she sent over a statement, and a series of other emails, partly (declared by her) "on the record" and partly "off the record." To be 100% clear: we have zero obligation to not publish her "off the record" comments. We made no arrangements with her to honor her requests that certain comments be "off the record."

Buhl appears to be under the false impression that merely claiming something is "off the record" leads to an obligation that she not be quoted, and that it provides her some sort of legal status, even when others quote her. This applies both to the original story about her tweets and to her follow up emails. Separately, she asked Tim to provide my phone number, and she called our corporate line multiple times this morning, telling him that she "always" calls a subject for comment before publishing a story about them. That may be her decision as a reporter, but there is no such requirement. That's not how freedom of the press or freedom of expression works. Finally, Jim Romenesko picked up on our story in his "Morning Report" on his super popular media blog, leading Teri to send Jim the same basic statement she sent us ("on the record") along with a separate statement suggesting that we had some sort of obligation to contact her before running our story. Let's deal with that one first, and then we'll get into her other claims.

"Techdirt did not call me for comment about that story you followed this am [in the Morning Report]," writes Teri Buhl....

"I finally reached the reporter early this am who says he is working at his day job and can't update the story until he gets home. Then he won't give me the info to directly reach a techdirt editor."

Again, to be clear: we have no obligation to contact her before writing a story about information that was made public. For her to imply that we needed to do so is simply incorrect. Tim correctly noted to her that he was not at his computer, but that he had forwarded her emails to me. He did not, as she implies, promise to update the story. He also did send her to the contact page at Techdirt, which is the best way to reach those of us here.

Moving on to the statement. We will break this down, sentence by sentence, leaving typos and grammatical oddities in place.

On Record Comment:

Again, we made no agreement to keep certain comments on or off the record. Yes, it is a journalistic convention that journalists respect such requests when the people are sources, but it is standard that both sides first agree to that convention. It is not a unilateral thing that you can just declare. When talking to sources we generally offer to keep certain comments off the record. Sometimes sources approach us and ask us to keep certain comments off the record, and we then consider the situation and decide whether or not to accept. It is then that the source chooses whether or not to share.

In this case, none of that is happening. First off, Teri Buhl is not a "source." She is the subject of the story, and we wrote about her comments and discussions with others that made their way into the public record. We have no obligation to keep anything "off the record" nor did we ever agree to any such thing.

My tweets were protected for a long time because I always looked at twitter as a conversation with my readers, not quotes, I'm not reporting news there. I can say silly things some times and I'd like to apologized for my knee jerk reaction to Gideon.

Protecting your tweets is a good idea if you want to keep them mostly quiet, but that is no guarantee that others won't share them. It is quite common for people to retweet the "protected" tweets of others, often not realizing that the original person had protected their tweets. That said, Buhl here implies that her tweets have been protected "for a long time," implying that Gideon only saw her tweet as a follower of hers, and that you could make the argument that the tweets were not, in fact, "public." I would have been willing to concede that perhaps her tweets were for followers only... except that there's evidence that this is simply not true at all. If you look at Buhl's Muck Rack page it does not currently show her tweets. Muck Rack is a site for journalists that creates profiles for those journalists and often pulls together their social media presence. Yet, a simple Google cache search for the feed turns up that, as of at least January 23rd, Buhl's tweets were clearly public on MuckRack. Here's a screenshot: Could it be that Muck Rack has a way to display protected tweets? No. The site directly states that it can only accept public Twitter feeds. And, even if Muck Rack was magically reposting her tweets from a "protected" feed, it would still be a case that her tweets were still being made public, thus depriving her of any claim that the tweets were ever private. In other words, despite her suggestion that her Twitter stream was protected for "a long time," there is substantial evidence that this is not true. If she would like to present evidence to the contrary, we are open to reviewing it. Update: Buhl told Poynter's Jeff Sonderman that she had unprotected her account "a few months ago," directly contradicting her suggestion to us that her tweets were protected during this whole thing.

Of course I can't sue him/her because I don't even know the person's real name.

This has nothing to do with whether or not you can sue someone. Has she honestly never heard of a John Doe lawsuit?

Not publishing my tweets is about a copyright issue for me.

For Teri Buhl, perhaps, but not for copyright law for the most part. We've actually covered some of the issues about the ability to copyright tweets in the past. There may be some elements that are copyrightable, and many that are not. Even so, whether or not someone then quotes you from your tweets is not likely to be "a copyright issue." If, as is the case, we were quoting statements made by her (and repeated by others), and adding plenty of additional commentary to it, there is no copyright issue at all. We are quoting her, not "publishing" her work. Furthermore, even if she went so far as to claim copyright over it, the fair use claims are obvious and quite strong.

I make money off my words, research, and analysis as a journalist.

That may be true, but it has no bearing on anything here.

I never print someone's tweet in a story because 1) I didn't get that comment from them directly

That is her choice, but it has no bearing on whether or not someone else can do so.

2) tweets can be changed and manipulated.

Original tweets can be deleted, but not changed. So, that's wrong. Could a third party change someone else's tweet in the process of retweeting and/or taking a screenshot? Possibly, though that would be quite a bit of effort, and no one seems to suggest that happened here. Buhl's issue here seems to be that she would not quote a tweet, and therefore, when she declares her tweets not quotable, everyone needs to respect that. That is not how things work.

I 've never had another jurno ignore that request. I think it's ironic that lawyer choose to do it.

It is surprising that she's never seen journalists ignore requests to keep her tweets private, though perhaps it's because there's never been any reason to quote her prior to this. And, of course, it's not true. A quick search on Twitter finds people retweeting Buhl's tweets publicly prior to all of this happening. Either way, as stated above, there is no obligation not to quote her just because she says so. Also, it is not, at all, "ironic" that a lawyer chose to do so. He did so because he understands the law and knows that the original claim is bogus.

Twitter says I own my tweets and I'm giving them license to use them but I simply don't think that means I am giving others license. Of course it also depends on what the tweet is to proven I own the copyright.

This is true, but if you are quoting someone and relying on fair use, then we do not need a "license" from either Buhl or Twitter. And, yes, there is also the missing step of proving that what is in the tweets is copyrightable and owned -- but also that our use is not fair use, de minimis use, or any other of a long list of defenses.

As far as Mark Bennett - I would like to sue him and see how copyright law relating to tweets and photos in tweets wuld be tested. If can afford to do it I will. There is not a lot of case law for this in the U.S. I am not fan of aggregater sites who take journalist original work, screen grab it, and don't link or credit back to the original reporting. It think that's stealing page views and intellectual content.

As a site that reports on all sorts of nutty copyright cases, including quite a few claims from people believing, incorrectly, that aggregation is "stealing," it is possible that if she did sue Bennett, it would make for an interesting story for us to cover, though the crux of that coverage would most likely concern how ridiculous the case would be and the fact that it has about as close to zero a chance of succeeding as possible. Contrary to her claims, there is an awful lot of case law in the US concerning most of the key issues here, and all of it goes against her arguments.

Tim - please publish this in the story and write at the top there is an update.

I have taken over this story, and am publishing her statement right here in this post (along with our response, obviously). I will, however, add an update to the original post pointing people to this post.

Of course, that was not the end of the exchange. She also provided an "off the record" statement, saying that the background photo on her Twitter profile is covered by copyright, and demanded that we take down the image of her Twitter profile because "as a tech blogger I hoping you will respect copyright laws." We are leaving that image up, because even if the image is covered by copyright, we are using it under fair use rules, as part of reporting on her story. As such, it is perfectly reasonable to show her profile which includes her ludicrous comment that "tweets are not publishable" (which kicked off this whole thing). Since the bio section of your Twitter profile is able to be changed, it makes extra sense to show a screenshot to prove its accuracy.

It is unclear whether or not Ms. Buhl is familiar with fair use. I would hope that she investigates the issue carefully before further commenting about it or seeking any sort of legal action.

Buhl sent another, separate, email complaining about Tim's coverage of her arrest, much of which was based on a report from Patch. Her main concern here was that she is disputing the allegations, and she demanded that he note that the charges are "alleged" and that she "denies" them. Of course, both of those things were abundantly clear in the original post. The post does mention that her actions were alleged, and that a trial is upcoming. If she weren't fighting the charges, there wouldn't be any such trial. She further claims that "I am actually not charged with invasion or privacy or theft of anyone's personal information." Nowhere did we say that she was charged with any of those things, so there is nothing to correct on that front. Either way, in this post, we will note, again, that she is going to court over these issues, and thus, clearly, denies the "alleged" charges against her.

In the end, we're not at all clear on what she thinks she is accomplishing here, other than calling more attention to her initial claim that her tweets are "not publishable," and then calling more attention to her overall actions. We continue to stand by our reporting on this matter.

Are you ready for some more fun courtesy of Prenda Law? While there are many copyright trolls wandering the judicial system, few have proven more entertaining than Prenda Law and its partners in unintentional levity, including AF Holdings, John Steele and superlawyer Brett Gibbs.

Brett Gibbs takes center stage (again) in an ongoing copyright infringement lawsuit that has been winding its way through the courts since May of last year. Once again, Gibbs felt he had found something resembling evidence on the defendant's (Joe Navasca) hard drive, and brought in some outside "expertise" to back up his claim of "spoliation." Specifically, Gibbs felt that a registry cleaner found on Navasca's hard drive was evidence that he had removed all traces of UTorrent and any downloaded files.

Navasca's lawyer fired a letter back challenging Gibbs' emergency motion to compel on the grounds that everything about the motion was severely ignorant.

The instant discovery dispute ultimately centers around a particular bit of software that the defendant had running on his computer – C-Cleaner. Plaintiff alleges, without any support other than an “EHow.com” user submission, that using C-Cleaner is “proof” that Defendant was destroying evidence.

Let's just pause for a moment in appreciation Gibbs' technical source, EHow. While it is generally a vast improvement over Yahoo! Answers, it's hardly the sort of place a lawyer should turn to for technical advice, especially when already over his head in a farcical legal battle, but especially when it's a single user's submission. I guess there's just no time to search for a second opinion when you're in Prenda Law. These holes won't dig themselves!

Navasca's lawyer, on the other hand, decided to quote an actual expert.

As described in the annexed declaration of a Certified Computer Examiner, C-Cleaner’s default functions (the only ones used by Defendant) do not permanently delete data, and only affect data that the average user does not even know exists.

CCleaner's own website describes what the utility does:

It removes unused files from your system - allowing Windows to run faster and freeing up valuable hard disk space. It also cleans traces of your online activities such as your Internet history. Additionally it contains a fully featured registry cleaner.

And here's how the actual Certified Computer Examiner describes CCleaner's functions under the penalty of perjury in a federal civil action, which Navasca's lawyer attached as Exhibit A.

9. CCleaner is not a “wiping program” and is not designed to “permanently remove information from a computer.” By default, CCleaner removes temporary internet files and other system files.

10. ...For the most part, these are files that the average user does not even know exist and cannot even be viewed by most users. None of the files CCleaner deletes would be within the scope of discovery requests or be considered ‘reasonably accessible’ under FRCP 26.

24. The mere existence of a program such as CCleaner is not sufficient to support an allegation that a party has engaged in inappropriate conduct or deliberately attempted to destroy information. I have examined hundreds of hard drives and many of those contained the CCleaner program...it can be considered a useful program.

25. ...I have worked on many other cases where different programs were used to eliminate data – programs specifically designed for this purpose such as “Evidence Eliminator”. Unlike CCleaner, Evidence Eliminator wipes the free space of the hard drive by default. And in all such cases, the programs had been uninstalled before I imaged the hard drive for examination.”

So, on the "strength" of a single EHow submission, Gibbs hoped to bypass any concerns about privilege or privacy, singling out Navasca as a copyright infringer covering his tracks with a program that a.) doesn't even perform that specific function and b.) that he had downloaded years before this suit was filed.

There's more, though. When asked for the name of someone impartial to perform the hard drive inspection, the plaintiff named Peter Hansmeier, an "individual with familial ties to Prenda Law and its predecessor in interest, Steele Hansmeier." Not only that, but Hansmeier has "ties to instant litigation." So much for "impartial."

Navasca's representative also pointed out that while the defendant was willing to have his drive inspected, he could hardly grant that same permission for everyone else in his household. As is pointed out in this rather scathing letter, most (if not all) e-discovery vendors require certification that the owner, or the court itself (via a subpoena) has granted this permission.

Three days later, Judge Vadas added to Prenda's woes, delivering a terse denial of Gibbs' motion to compel. After instructing Navasca to stop running CCleaner on his computer(s), Vadas delivers this bit of advice to Gibbs.

Furthermore, allegations of spoliation are extremely serious, and the court urges Plaintiff to review the facts very carefully before pursuing this avenue based solely on an eHow.com article. In particular, Plaintiff should review the expert declaration that Navasca filed with his letter brief, to fully understand the purpose and effect of CCleaner.

As if it weren't completely apparent by now, AF Holdings, Prenda Law and their personnel are grasping at straws, somehow hoping to fumble their way into a payday while simultaneously burning their collective reputations to the ground, salting the earth and setting fire to the salt.

We recently wrote about Newegg successfully defeating a rather successful patent troll, in part by taking the line-in-the-sand stance that the company will never settle with patent trolls. Many (probably most) other companies end up doing a cost-benefit analysis and realize that it's cheaper to just pay up and settle. That, of course, is exactly what patent trolls rely on. That's why they're in business. For companies, it's a rational short-term decision to settle. It may not be quite as rational in the long-term, as agreeing to settle can attract an increasing number of troll suits, while showing a commitment to fighting back may scare them off. Also, fighting patent trolls may lead potential customers to be happier about doing business with you (and, if our comments are any indication, this fight helped keep Newegg customers loyal).

In the end, though, most companies who really stand up to patent trolls do it mainly on principle. They really dislike the fact that trolls are getting away with what they get away with, and so they fight back. We've seen the same thing in a few other cases, such as with Drew Curtis and Fark, but it's still somewhat rare.

Dan O'Connor gives the economic explanation for why what Newegg did was of massive benefit to consumers, but also just not likely to be repeated enough by other companies to make a difference. It's why we need real reform for the patent system, rather than just waiting for principled companies like Newegg to stand up against bullies. It all comes down to the basic economics:

In economic parlance, busting trolls with bad patents is a “public good.”  In other words, the entire industry benefits when an individual company invalidates a bad patent.  Or, as Dan Ravicher of PUBPAT pointed out in an amicus brief in the pay to delay pharmaceutical antitrust case:

Accused infringers who prove a patent invalid perform an important public service by correcting the PTO’s errors on their own nickel.

Economic theory also tells us that public goods are generally underprovided (by the private market at least) because individual market actors do not reap the full benefit of their investments.  In this instance, Soverain had cases pending against over 30 companies, including such household names as eBay, RadioShack, Nordstrom, Bloomingdales and Walgreens.  Newegg’s stubborn refusal to rollover means that those other companies are also saved the significant time and expense of fighting to knock out Soverain’s patents.

For the most part, I agree with this, though I believe there is some good and important research going on these days that shows that the claims concerning "public goods" aren't quite as universal as some make them out to be -- but that's often context specific. And, in this context, the traditional definition of public goods does appear to apply. The problem here isn't just that it's a public good, but that the cost of producing the public good is greater than the cost of the alternative (a settlement), which may be considered to have similar benefits (being allowed to continue making product). In some other cases, the cost/benefit structure is different with public goods and that raises some interesting challenges. Either way, when it comes to bogus patents, what's clear is that we can't just rely on companies to fight back against them. The incentives, unfortunately, often push companies in the other direction.

We've discussed a few different efforts to continuing the work that Aaron Swartz started -- and Farhad Manjoo over at Slate has a good suggestion specifically for MIT: it should make its own academic research open for all, while also working with other top universities to do the same. Of course, MIT is in the middle of a self-investigation into its role in the Aaron Swartz prosecution, as many people familiar with the case have said that it helped prosecutors, and drove the case forward, rather than recognizing that Swartz's actions were not criminal and, at the very least, fit with MIT's overall culture (even though Swartz was not a student there).

If MIT truly wants to atone for joining the federal case against Swartz, it should do something much grander: It should pledge to spend its money, prestige, and moral authority to launch a multiuniversity campaign to free every scholarly article from behind pay-wall archives like JSTOR. In other words, MIT should pledge to finish the project Swartz started.

Making academic articles available to everyone is one of the most direct ways for MIT to fulfill its public-spirited mission to expand the world’s access to knowledge.

This is not a crazy idea at all -- especially for MIT. While lots of colleges and universities are now putting full courses online, MIT was really the first big university to do exactly that, announcing plans to put all of its courseware online for free way back in 2001. Is it really such a stretch to seek to do the same thing for research as well? Manjoo even has some good suggestions for how it could go about doing this logistically, pulling ideas from a few others, mainly Michael Eisen::

MIT could stop the whole business with a few bold steps. First, it should declare that, within three years’ time, its libraries will cease subscribing to all academic journals and archives that do not make their articles available online to everyone. Second, MIT should require all of its faculty, grad students, and other affiliated researchers to submit their work only to open-access journals. Third, MIT should instruct its deans and other officials to no longer look favorably upon the mere fact of publication in a “prestigious” journal when making hiring and tenure decisions. Instead, promotions should be based on the quality of a person’s work, wherever it’s been published. (This sounds obvious, but most people in academia will tell you that where you publish is just as important as what you publish.)

Finally and perhaps most importantly, MIT should encourage other universities to participate in this effort. Specifically, it should establish a fund that pays for the true costs of publishing academic journals. Call it the Aaron Swartz Memorial Open-Access Fund. Instead of paying exorbitant subscription fees to for-profit journals, universities would instead contribute to the fund. (The amount would be a function of a school’s size and research budget.) Journals would draw from the fund according to how often their work is accessed. It’s not unlike the compulsory license system that pays musicians when their work is covered or played on the radio, except instead of allowing for more poppy renditions of Elvis tunes, this fund would let anyone in the world access any academic article at any time.

This move seems almost too reasonable for it to actually happen. It matches with MIT's efforts in other areas. It would drive forward one of Aaron's key efforts, and it would act as a serious mea culpa for any role that the university did play in his prosecution.

We've seen plenty of ridiculous stories about bogus DMCA takedowns, but none get so ridiculous as the ones in which the content being demanded taken down is the officially released content. This often happens because of shoddy / clueless middlemen, as is the case with the latest example being passed around. HBO hired DtecNet / MarkMonitor to keep infringing copies of its works offline, and as TorrentFreak notes, the company sought to achieve this by sending a DMCA takedown notice to Google that demanded the removal of links to HBO's own website (as well as links to legitimate sites that included reviews of the show in question, Eastbound and Down). Again, this kind of thing seems to happen all the time, once again confirming the key point that despite all the talk by maximalists that Google should just "know" when a work is infringing, copyright holders' own representatives have absolutely no clue at all, and that should weigh against the idea that Google or any other third party might magically know.

My real question, though, is just how much is HBO paying DtecNet / MarkMonitor for this "service"? Not only is it making a complete mockery of HBO itself, but potentially killing search engine optimization value that HBO might have towards its legit and authorized content.

Also, isn't it comforting that DtecNet / MarkMonitor are going to be the ones responsible for going after people under the new six strikes program? Stories like this really add confidence to the idea that they're going to make a complete mess of the whole thing.

In the recently released Copy Culture In The US & Germany survey report from the American Assembly (for which we provided the design & layout work), one small but especially interesting component is the list of reasons given for downloading TV shows and movies. The American responses were pretty evenly distributed among the various key reasons, and serve as a laundry list of things that piracy does just slightly better, or slightly more permissively, than most legitimate sources:

Why I Download TV/Movies For Free (US, Based On Americans Who Do)

While price was one of the top three reasons, this hardly paints a picture of penny-pinching freeloaders—rather, it shows emerging trends in media consumption that distributors and rightsholders simply can't keep ignoring. Absolutely none of these responses are surprising, because they are exactly the way people have been interacting with the majority of content online for years now. They share, they use multiple devices, they expect comprehensive access and a choice of sources, they want access as soon as possible, and they are put off by obtrusive advertising.

Of course, that last item is a bit of an oddity. The knee-jerk reaction among most people is that all advertising is bad, but that seems to underestimate the amount of stuff that advertising pays for or subsidizes, and that most of us happily enjoy on a daily basis. Advertising is one of those things that only ever gets badmouthed, because you only focus on it when it's bad — when it's good it doesn't register as advertising because it doesn't register as intrusive. The perennial buzz around Superbowl commercials and the 44-million views on Old Spice's famous viral ad support this notion pretty strongly.

In the world of online television, I think there's room for both subscription models and advertising-funded models — and even some combinations of both if balanced correctly. But until content providers start tackling the overall problem by catching up to pirate sources in the many areas where their services fall short, no model is going to succeed in defeating piracy.

Our most recent posts on AT&T share something of a theme in that they're about what they won't enable you to do. For instance, you can't inform them of a security hole or you'll face years of prison time. Likewise, we learned recently of their plans to limit what you can do on the internet, or limit your access entirely via one flavor of the now infamous "Six Strikes" plans. Hell, sometimes AT&T doesn't even allow competitors, because logic based on lies is so much more gratifying. That said, we make a habit here of pointing out when companies manage to go the other way and enable rather than disable, so it's with that in mind that we congratulate AT&T for generously enabling (and charging) customers for data plans on used smart phones their customers bought, even when those customers disabled and refuse to use any data applications. (In case you're slow on the uptake: that's sarcasm.)

Joel Runyon has the heartfelt story of how AT&T looked out for his own best interests by charging him for a data plan he didn't want, never used, and specifically turned off on his phone.

4-5 months ago, the hardware on my old flip phone was dying (that happens when it's from 2008). I was out of contract with AT&T and so I could have chose to get a new subsidized phone & shiny new 2-year contract with them, but I simply bought a used out-of-contract iPhone 4 from my friend and swapped in my sim card (that whole commitment thing again). Again, no problems. America! Neat.

After using the iPhone as a dumb phone for all intents & purposes (call, text, no data) for the last 4-5 months or so, I get a text message out of the blue from AT&T that they've detected I'm using a smart phone and that all smart phones require a data plan - never mind that I actually had data turned off. That would be only a little annoying if it was just a notification message, but they went ahead, chose a data plan for me, and started billing me from then on.

Yes, AT&T unilaterally decided a data plan was needed for all of the data Joel didn't need and didn't use. This wasn't a new contract along with a subsidized phone. Simply by putting his existing sim card in a used phone he bought elsewhere, this automagically meant he was given a data plan and billed for it. No discussion, no contract, just instant data plan.

"Welcome to AT&T customer service. Now, if you'd kindly go f@*# yourself..."
Image source: CC BY-SA 2.0

Offering customers choices is a good thing. Limiting them is not. Forcing a plan on someone who has no intention of using it and charging them for it is about the best way I can think of to lose a customer. When Runyon contacted AT&T about this, they apparently replied that this was "standard practice," in which case it should probably be "standard practice" to find another carrier.

While there's no doubt that copyright licensing is a mess that is often holding back key innovations online, it's a bit worrisome to hear about how the EU Commission is exploring the issue. It has set up a "Licenses for Europe" campaign, but designed in a way that locks in a predetermined conclusion that the only way to deal with locked up content in Europe is to get the big copyright holders to agree to more easily determined licenses. Again, this is not necessarily a bad thing, but it ignores the larger picture: including the fact that most content produced today is coming from individuals and not as a part of a larger industry.

La Quadrature du Net explains why the whole setup is a problem:

Instead of planning for a broad reform that would break away with full-on repression of cultural practices based on sharing and remixing, the Commission is setting up a parody of a debate. 75% of the participants to the working-group concerning “users” are affiliated with the industry and the themes and objectives are defined so as to ensure that the industry has its way and that nothing will change. Through this initiative, the EU Commission shows its contempt of the many citizens who participated in defeating ACTA and are still mobilized against repressive policies.

La Quadrature du Net is registered to participate in a working-group of the new “Licences for Europe” initiative called “User-Generated Content”. Everything in its name, theme and mission is biased to fit the views of the entertainment industry – which represents more than 3/4 of the participants! – The working group is meant to focus on “User-Generated Content”, as if works created by Internet users were a different category from “real” cultural works; as if today, everyone was not on an equal footing to participate in culture. The Commission's framing of discussion is subservient to major industrial actors who keep attacking their users' cultural practices and ignore the urgent need to reform copyright.

Just starting out from the point of view, that "user generated content" is somehow a different category than "content," itself is problematic, but much more problematic is the fact that there is no interest from this effort in things that would actually help out on a large scale: such as recognizing that copyright doesn't make much sense for many of these works, and that sharing and building on others' works is a part of how culture works (and that "licenses" can often get in the way of such things). In fact, the EU Commission made sure that no discussions of things like fair use were to be discussed, since the point of the discussion was just "licenses."

The working group is supposed to work only on licensing – contracts by the industry in which it controls everything – rather than discuss new exceptions to copyright, which would represent the general interest by allowing not-for-profit sharing and remixing of digital works.

This is really unfortunate. Because when you start from the position of licensing everything, you ignore the fact that not everything needs to be licensed. And, as a result, you end up with over-licensing, which is a real problem. Apparently, things got even worse once the sessions began. Even though there were rules in place designed to keep the details of the proceedings mostly secret, some indications from inside were that things were not going well, thanks to some tweets from COADEC.

Industry reps seemed to have absolutely no interest in discussing things like fair use or other "exceptions" to copyright. Someone brought up fair use, and apparently the response was that "fair use is from the 20th century" and then annoyance at the fact that "exceptions" were even being discussed since "we should just talk about licenses." Moderators obliged by shutting down any talk of exceptions.

Someone tried to point out that this seemed to be putting the cart before the horse, asking whether or not there has been any evaluation done as to whether or not licensing was really the best solution, and the moderator responded "well we want to deliver something." We've heard this before, many times. Politicians have no interest in making sure the solution they're pushing for makes sense or works, so long as they're seen as "doing something." We saw that nearly a decade ago when Senator Orrin Hatch tried to push his INDUCE Act, and when quizzed about it, he admitted that it might cause problems, but he had to "do something" or else.

Further making a mockery of the whole thing, someone brought up Creative Commons licensing... and that conversation was also shut down as a "certain industry" claimed it was "too early" to discuss such things. Apparently, this "certain industry" doesn't realize that Creative Commons is a form of licensing too. Like too many maximalists, they consider Creative Commons not to be a form of licensing, but another form of "copyright exceptions," (which it is not).

All in all, the whole session appears to have made a mockery of any attempt at real, meaningful copyright reform. One more comment from the session sort of highlighted the whole problem. As the moderator and people from "certain industries" shut down all talk of exceptions, and focused solely on how to set up a system with more and more licenses, an attendee asked a simple, pointed question:

Attendee asks, who gives a licence for mining the Internet?

And that, right there, encapsulates the entire problem. If you think that we shouldn't be talking about exceptions, and that everything requires licensing, what you're really saying is that search engines are illegal. Searching the internet without "permission" is illegal. And that's the world that the EU Commissions seems to think we should be heading towards.

Yes, locked up content is a problem, and fixing licensing is one part of the solution, but it cannot be done absent a more comprehensive look at the issues of the internet and copyright today. Completely ignoring things like fair use or other "exceptions" to copyright (I prefer to think of them as the rights of the public rather than "exceptions") means you get bad plans with bad results that border on the ridiculous.

Late last year, Japan instituted some of the more draconian anti-piracy laws to hit the books, making unauthorized downloading a criminal offense (along with backing up DVD content), punishable by up to two years in prison or fines of $21,000 (two million yen). Apparently, this deterrent isn't having the desired effect. (Or maybe it is -- legitimate downloading is down, suggesting people might be too scared to download from approved sources.) Either way, the government, in conjunction with various members of the concerned industries, has taken things a bit further, seeding warning messages in various P2P networks.

On 25 January, Japan's Ministry of Internal Affairs and Communications along with various motion picture and music associations announced their latest copyright protection measure, dubbed “Operation Decoy File.”

The plan involves inserting files onto Japan's popular P2P (peer-to-peer) file sharing networks such as Winny and Share which appear to contain popular copyrighted material. However, once downloaded, the file is revealed to be a message appealing the user to reconsider their wicked ways.

This isn't altogether unusual. Record labels have uploaded faux files to these networks for years -- one of the most famous examples being Madonna's sweary upload that asked would-be infringers just what the fuck they thought they were doing. Others have operated in a grayer area, purposefully uploading files solely to track and eventually sue downloaders.

But this is rather novel: instead of the file they were expecting, the person receives the sort of warning most people wish they could skip past on their purchased DVDs.

A Warning from the Organization to Raise Awareness of Copyright

Files with the same name as this contain content which is in violation of copyright when distributed over P2P networks such as Winny or Share.

Knowingly downloading and of course uploading files that are protected by copyright law without the consent of the owner over the Internet is illegal copyright infringement. Please stop immediately.

Also, from 1 October 2012, downloading content which is known to be available for sale is punishable by a maximum 2-year prison sentence and/or 2,000,000 yen[US$21,000] fine.

Our copyright organization is working to eliminate copyright infringement by file sharing software. In addition to consulting the police to obtain the disclosure of user's identities, we want to focus on user education.

The Ministry of Internal Affairs and Communications has also crafted this charming representation of how the warning system will work, painting itself a very rosy picture of faceless file sharers stopping dead in their tracks rather than viewing the unwelcome warning as some sort of dare. (Translation courtesy of Rocket News. Original Japanese version here. [PDF])
 

Japanese P2Pers have been discussing this new tactic and attempting to track down warning files in order to suss out any noticeable differences between it and the file it's supposed to be. (Yes, I know. One will be a warning and the other will be an actual piece of entertainment. But noticeable in terms of search results...)

The Ministry's statement indicates that this new warning system is only a test, albeit one that will stick around if there's any noticeable downturn in file sharing. Rocket News reports that some members of free-for-all discussion forum (and inspiration for 4chan) 2 Channel [2ch] are taking this to mean that the government may be considering uploading virus-tainted files to the various networks. As tempting as that may seem to some of the more vindictive members of the copyright industry, it's highly doubtful the Japanese government would be willing to brick computers to deter file sharing, draconian IP laws or no.

Early yesterday morning, I saw that Cecilia Kang at the Washington Post had a story up about the years-long fight for white spaces entitled: Tech, telecom giants take sides as FCC proposes large public WiFi networks. It struck me as odd, because so much in the article seemed... wrong or misleading. The main part about efforts to finally do something with the old TV spectrum isn't anything new at all. We first wrote about the FCC "proposing" this back in 2004 and have covered it a few times since. The FCC has been trying to use some of that TV spectrum for better, more efficient and more useful endeavors. It's been an ongoing battle that feels like it's never going to end. The short version is that TV broadcasters got a ton of free spectrum many years ago (just look at how giant chunks of the spectrum chart belong to TV broadcasters). A big part of the move to digital TV was to force broadcasters to give up a chunk of wasted, valuable spectrum that can be turned into (among other things) some useful wireless services. TV broadcasters hate this and have been fighting it in a variety of ways.

The latest version of this plan is for the FCC to do a multi-part, multi-directional "auction" process for a chunk of spectrum currently held by the broadcasters. Part of that auction would be to offer incentives to broadcasters to cough up the spectrum. And then part of it would be auctioning off whatever spectrum broadcasters agree to dump. Finally, part of it would also include designating some portion of the spectrum for unlicensed uses.

All of this is ancient history. Really ancient history. So why is the Washington Post suddenly covering this? From the article, you'd be forgiven for thinking that this is all new and that the FCC has plans for some amazing free "super WiFi." Except that's not true. At all. Well, except the part that caught most people's attention: that this would be about offering "free internet service" across the country. That part is new. And that's because it's not true. You still need backhaul and service. It's just about freeing up the spectrum so that it can be used to provide service. The FCC isn't suddenly planning to get into the broadband service ISP business. Nor could they.

Think of it this way: just because WiFi exists, it does not mean that everyone suddenly has free internet access if they buy a WiFi router at their local Best Buy. Nope. They have to connect that to a service. Same thing with anything being talked about here. More spectrum may be freed up for "open" use -- meaning more things like WiFi -- but there will still be service providers offering services over it in some form or another. Could some of them offer "free" service? Possibly. Just like you might get "free" internet access from your neighbor with open WiFi, who pays for his connection. But that's not what anyone's really talking about.

However, if you could be forgiven for thinking that this was new and amazing (and true), I don't think the same forgiveness should be given to parts of the press who ate this story up. Business Insider (apparently, without any benefit from any actual "insider") wrote a breathless piece about telcos trying to stop the government from offering super WiFi. Except... no. Others, who should have known better yet still wrote about it, included Popular Science (awful) and Mashable.

Moving to the mainstream, newswire UPI picked up the story, taking some comments from FCC boss, Julius Genachowski, out of context. He was quoted in the Post piece as saying "Freeing up unlicensed spectrum is a vibrantly free-market approach that offers low barriers to entry to innovators developing the technologies of the future and benefits consumers." But the confusion is his use of "free." He's not talking "free service" but freeing the spectrum so that anyone can offer services, like WiFi, over it without having to buy a license.

Others similarly jumped on the story without understanding it at all. The Daily Caller talked about it as if it was some new plan, as did Fox. Similarly, you had ThinkProgress and Salon chiming in on the other side of the political spectrum.

Thankfully, some spoke up in response, but even then there's still some head-scratching about this whole thing.

Karl Bode, over at DSLReports, quickly questioned Kang about the whole story, and she claimed that the story was "motivated by the new comments to the FCC" from various players both in support and in opposition of the latest spectrum auction concerning "white spaces." But... again, the auction has been planned for a while -- and it's not really about "white spaces" but adding existing "white space rules" to some of the newly available spectrum (more below). There's really nothing new here, other than some comment filings about how this auction should go down, which add little to the discussion beyond what's been said already. It's the same players saying the same thing, but just in direct reference to the upcoming spectrum auction.

Jerry Brito, over at the Tech Liberation Front, digs into the details and suggests that this whole thing involves something of a comedy of errors, with massive confusion not just over what's been going on with TV white spaces, or the new comments, or the upcoming spectrum auction... but also with a completely different band of spectrum that Genachowski spoke about last month at CES.

Parsing Kang's story a little bit more since posting this, I've become even more confused. In her tweet she says she's talking about the white spaces in the incentive auction NPRM, but those couldn't possibly be used for a nationwide wireless network since they'd be low-power Part 15 type bands. Also, unlicensed in the 600 MHz guard bands are not Chairman Genachowski's design, they were allowed by Congress when they gave the FCC auction authority. So what is Kang referring to? Most likely it is the Chairman's initiative, announced at CES earlier this month, to clear 195 MHZ in the 5 GHz band to improve Wi-Fi.... Bottom line, I think Kang conflated two separate proceedings into one big non-story that made it past the Washington Post's editors all the way to the top left corner of the front page. I hope there is a correction tomorrow.

While this actually makes some sense, I don't think that's correct either. After all, the FCC's own summary of the upcoming incentive auctions makes it clear that it views "super WiFi" as a possible outcome from the television white spaces being unlicensed:

The FCC recently developed provisions for unlicensed devices to operate on TV channels that are not used at any given locations, called "white spaces." Interference is avoided by controlling access to the spectrum through a database of protected service areas. The white spaces in the TV spectrum offer an opportunity for a new generation of products such as Super Wi-Fi and wireless broadband services for communities, particularly in rural areas. In the incentive auction proceeding, the FCC proposes to make a substantial amount of additional spectrum available for unlicensed uses. First, the Commission proposes to continue allowing the operation of white space devices in the broadcast television spectrum in the newly repacked band. In addition, the FCC proposes to make the guard bands in the new band plan available for unlicensed use. Under the plan discussed above, the two proposed guard bands would be 6 MHz wide and could be larger when accounting for the addition of "remainder spectrum" resulting from the uneven division of 6 MHz wide television channels into 5 MHz blocks. Furthermore, the FCC proposes allowing unlicensed devices to operate for the first time on Channel 37 by establishing appropriate protections for existing operations in the white space database. Taken together, the FCC's proposals will enable a substantial amount of spectrum use by unlicensed devices. A significant portion of this spectrum will be available on a nationwide basis, which is important because there currently is little or no white space in the TV bands in parts of many major markets. In making these proposals, the FCC seeks to promote greater innovation in new products and services, including increased access for wireless broadband services across the country.

The confusion, I believe, is that the FCC is talking about two different types of spectrum in the above quote, though if you're not reading carefully, you might think that it's just about the spectrum they plan to be auctioning off. That's not the case. Much of the above is actually talking about the existing TV white space spectrum that has been fought over (which is generally in the 700 MHz realm -- 698 to 806 MHz). The new spectrum auction is in the 600 MHz block (572 to 698 MHz), but as part of the discussion on this new auction, the FCC is reminding people that (a) the existing TV white spaces will remain available for unlicensed use and (b) that the new auctions should, in theory, add additional open spectrum to them (under the same rules), specifically looking at freeing up channel 37 (608 to 614 MHz) (once called "the last empty channel"), as well as portions of the so-called "guard bands" between licensed spectrum chunks, that they would like to "add" to the existing white space rules, which are supposed to minimize (or eliminate) interference problems in the white space.

The "comments" that were given by various players are really just about how the auction should run, with some discussing how much space should be allocated to such unlicensed uses. In particular, many weighed in on how much should be allocated to the "guard bands" and whether they should be attached to existing TV white space rules for interference-avoiding open spectrum. Kevin Drum, over at Mother Jones, actually has one of the better explanations for the complexities of the upcoming auctions, and the issue of guard bands:

In short, because there's that first reverse auction in which broadcasters are supposed to be incentivized to cough up existing spectrum (again, which taxpayers gave them for free...), it's not entirely clear how much 600 MHz spectrum will be available to be auctioned off to anyone. Basically, they have these two chunks, starting at 608 MHz and counting down, and another at 698 MHz and counting down -- and the total amount available will depend on how much the broadcasters agree to cough up in the reverse auction. At the "bottom" of that range, the FCC has proposed a 6 MHz guard band for each of these chunks, and making much of that subject to the existing white space rules and hopefully allowing something useful to be done with that unlicensed spectrum, especially if it's combined with other available white space. The "guard bands" are called that, as they're supposed to "guard" between interference between licensed spectrum on either side, though there's a fair bit of debate over how much space is really needed to "guard" such interference. That argument leads to some suggesting that the FCC is offering up too much for the guard bands in an effort to get more unlicensed spectrum on the market.

The fight is over how much spectrum is used for unlicensed and how much for licensed. The telcos, like AT&T, want to limit the unlicensed spectrum, while internet companies, like Google, want as much of it as possible. Similarly, there are some in Congress who are against offering very much (if any) unlicensed spectrum, taking the really dumb short term view that any unlicensed spectrum (even if it leads to tax-creating innovations) is leaving money on the table, since telcos are expected to spend billions buying up any licensed spectrum available. Again, though, that's the same old story.

In short: there's an ongoing fight about how much spectrum in newly auctioned 600 MHz spectrum will be "unlicensed," which is important for some cool things. But, that's got little to do with a magic "free" nationwide internet service. This is important stuff, but the reporting by many folks has been abysmal.

As Techdirt reported last year, some copyright maximalists in the UK seem to be against the whole idea of basing policy on evidence. Last week saw the launch of CREATe: Creativity, Regulation, Enterprise and Technology, a new UK "research centre for copyright and new business models in the creative economy." One of the things it hopes to do is to bring some objectivity to the notoriously contentious field of copyright studies by looking at what the evidence really says; so it was perhaps inevitable that it too would meet some resistance from the extremist wing of the copyright world. What's surprising is that it seems to have happened during the launch itself, as Paul Bernal, an academic who was there, reports:

A key idea is that some of the CREATe projects will be gathering evidence -- and attempting to determine what's really true about what's going on. Indeed, the first publication from CREATe is a piece about what will actually constitute evidence from the many, varied perspectives of the different groups involved -- you can find it here. CREATe represents an invaluable opportunity for this gathering of evidence -- to have the money, the expertise and the time for the kind of research that can really look into this is something very, very special. And yet even before the launch event had finished, not even a day into the four year project it appeared that the lobbyists were already trying to suggest that the project was likely to be unfair and biased. The question that immediately springs to mind is what are they afraid of? Don't they want real evidence? Are they worried that the evidence will suggest that their current models both of business and of enforcement are flawed and ineffective? Are they afraid that CREATe will help put together new business models -- and that the new environment will have no place for the 'old' content industries?

In the spirit of academic enquiry, answering these questions is left as an exercise for the reader....

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The Trans-Pacific Partnership (TPP) agreement began as a cosy treaty between just three nations: Chile, New Zealand and Singapore. But once the US joined in 2010, this small-scale partnership suddenly became something much more significant. As USTR Ron Kirk put it in a press release at the time:

The development of our negotiating positions will be a collaborative effort with elected leaders and stakeholders here at home, in order to shape an eventual Trans-Pacific Partnership Agreement that is a new kind of trade agreement for the 21st century, bringing home the jobs and economic opportunity we want all our trade deals to deliver.

That "new kind of trade agreement" began to take shape as other major Pacific rim countries signed up: first Australia, Peru, and Vietnam, then Malaysia. More recently, Canada and Mexico have joined, albeit as junior partners with diminished negotiating powers. Another important player in the region that has expressed an interest in participating is Japan. But it seems that domestic politics may well scupper that plan:

Prime Minister Shinzo Abe is facing challenges in handling the issue of Japan's participation in the talks for the Trans-Pacific Partnership free trade framework.

While Abe hopes to express willingness to take part in the talks during a summit with U.S. President Barack Obama set for late this month, he is still wavering on the issue due to strong opposition from within his own Liberal Democratic Party [LDP].

Here's where the problem lies:

A strong backlash, however, is expected from some LDP members who are concerned the party will lose votes from agriculture-related sectors if Abe announces Japan's bid to join the talks.

That's not really surprising; after all, in the same press release quoted above Kirk states quite bluntly:

USTR will now intensify consultations with Congress and with American stakeholders to develop objectives for the Trans-Pacific Partnership agreement negotiations, in order to enter already-scheduled talks in March with a robust U.S. view that seeks the highest economic benefit for America's workers, farmers, ranchers, manufacturers, and service providers, and that reflects our shared values on labor, the environment, and other key issues

But if US farmers and ranchers gain "the highest economic benefit", it's quite likely that those in the agricultural sector in the other TPP countries will lose out -- precisely what Japan's LDP members fear. Of course, the standard line is that free trade agreements are great because everyone gains, but the reality is not so rosy. Indeed, even the US has been suffering overall in the case of the recent FTA with South Korea, which is being held up as a model for future treaties:

In the first eight months of the U.S. Free Trade Agreement (FTA) with Korea, implemented in March 2012, U.S. goods exports to Korea fell by nine percent (a decrease of more than $2.5 billion) in comparison to 2011 levels for the same months. Ironically, some of the biggest downfalls in U.S. exports occurred in the automotive and meat industries -- the two sectors that the Obama administration had promised would experience export growth under the deal. The decline in U.S. exports under the FTA brought a 21 percent increase in the U.S. trade deficit with Korea, in comparison to the same period in 2011. Using the same ratio employed by the Obama administration, this trade deficit expansion implies the net loss of over 16,000 U.S. jobs under just the first several months of the Korea FTA.

Given the fact that the US economy has already been damaged by this recent FTA, the fears in Japan that its agricultural industry will be hit, the many concerns about TPP's investor-state dispute mechanism, plus its negative impact on online freedom and access to medicines, the question has to be: why bother with an overly-complicated, secretive treaty whose risks are many and real, while the gains seem few and uncertain?

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