Despite growing protests and concerns about the next big US trade agreement (with Europe), the discussions on the Trans Pacific Partnership continue to move forward, with the latest round taking place in Singapore this week. And... once again, it's a story of near complete secrecy, and a total lack of transparency. Of key concern, of course, are the sections of the agreement on patents and copyrights, which the public has not seen. There was a leak from over two years ago, but nothing since then. The USTR and others say that they want the agreement completed by this fall, and it is a complete travesty that they have not been willing to share the details publicly. Negotiating a treaty in complete secrecy -- especially when the "input" on the IP chapter is driven by industry stakeholders, rather than the public -- means that the treaty almost certainly is going to be a disaster that is harmful to the public.

What's most amazing is that the USTR doesn't seem to recognize that the playing field has changed since the last time they did this. The rejection of SOPA, followed by the widespread rejection of ACTA (even if the USTR is in total denial about this) shows that the public is not at all willing to accept backroom deals that fundamentally expand bad patent and copyright policies around the globe and (worse) lock us in to things that the public does not believe are legitimate.

The USTR's continued insistence on secrecy, combined with the few leaks of information showing just how extreme a position they're setting out for themselves on patents and copyrights, suggests an organization so totally out of touch that it is destroying its own credibility. Any reasonable organization would recognize that the old backroom negotiations method of creating these kinds of deals is no longer acceptable. That the USTR refuses to admit this only increases awareness of just how out of touch the organization and its leadership remain.

Sometimes, a free market doesn't create a thriving bazaar of competition. Occasionally, huge monopolies form, and the result is less competition (and sometimes less innovation). Maybe it doesn't matter if you own Mediterranean and Baltic Avenue, but it could if you have Park Place and Boardwalk. Here are a few examples of monopolies you might run into someday.

• Anheuser-Busch InBev and SABMiller own a lot of beer companies, and Anheuser-Busch InBev wants to buy up Grupo Modelo next. If the deal goes through, 46% of the US beer market would be controlled by a single company. [url]
• Eyeglasses aren't exactly hard to make, but they can be surprisingly expensive for a few grams of plastic. Luxottica is the company behind the glasses that about half a billion people wear, but maybe that will change when Google starts selling its fancy eyewear.... [url]
• If you've ever bought (or tried to sell) a diamond, you've probably run across a little company called De Beers. Chemistry professors should curse De Beers for the broadly held myth that a diamond is forever... diamonds are not the most thermodynamically stable form of carbon by a long shot. [url]

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

Nearly a year ago, we wrote about the disappointing news that Raymond Teller, better known as "Teller" from Penn & Teller (also as the silent guy in that act), was suing another magician for copyright infringement for copying one of his tricks. This was disappointing on multiple levels. As we had discussed years ago, magicians are an example of a market that has been hugely innovative over the years, mostly without copyright being used at all. In fact, it's not entirely clear that a magic trick can be covered by copyright -- even if Teller successfully "registered" this particular trick. Copyright registration is basically a rubber stamping procedure, rather than any serious review.

The lawsuit has continued, but not without some challenges -- one of the large ones being that the magician being sued, Gerard Dogge (aka Gerard Bakardy), has tried to pull a disappearing act to avoid getting served. And, it appears, he's been somewhat successful.

Defendant’s citizenship and current whereabouts are unknown, and have not been known since the commencement of the action. On April 30, 2012, plaintiff hired a private investigator to locate defendant in Belgium and serve defendant with the summons and complaint. Additionally, plaintiff retained a top Belgian law firm to properly effectuate service upon defendant. To date, defendant has evaded personal service and cannot be located in Belgium, Spain, or in any other country in Europe.

Nice trick. Except... it didn't work. The court notes that Dogge is clearly "intimately knowledgeable of the details of this lawsuit," in part because he sued Teller in Belgium for defamation over the lawsuit. Oh yeah, even while trying to avoid getting served, Dogge has filed his own filings in the existing lawsuit, which is generally not a good way to suggest you don't know that the lawsuit is happening. Also not helping Dogge's case is that he appears to be... a bit wacky, based on his filings. For example, filed an undescribed bit of porn -- and then asked for it to be filed under seal. The court rejects this request, and also tells him: "Defendant shall not file any pornographic material with this court as a sealed exhibit or otherwise."

Oh, and then he asked for a jury made up entirely of magicians.

In general, it sounds like Dogge's "legal" arguments are somewhat close to nonsensical as well:

For example, defendant states “[m]agicians are like clowns, they only serve to entertain. Obviously stealing from each other is out of the question, and this has not happened here.”

The court does reject one of Teller's motions, seeking to effectively bar the Belgian case from moving forward, even while saying that the lawsuit "has a vexatious flavor," but that's not enough to block it.

In the end, it's unfortunate that Dogge appears not to be handling the case particularly adeptly. There are some important copyright principles at stake here, and he seems to be treating it like a joke. I can understand why someone would choose not to respect copyright laws like that, but it means that a good chance to actually explore the legal issues is likely to be wasted or (worse) create a bad legal precedent.

Recently, we covered the story of a Canadian Counter-strike enthusiast who created a map based on a Montreal metro station. It was greeted with a thorough lack of enthusiasm by Montreal's transport authority (STM), which claimed the map might "create panic among the city's public transport users," before deciding to head off the whole situation using good, old-fashioned, pre-murder-simulator copyright. Diego Liatis, the creator of the map, was threatened with a $50,000 fine by STM, which has done little to deter his efforts.

Ars Technica has a followup story, detailing Liatis' refusal to back down.

Diego Liatis, a Montreal gamer and entrepreneur, told Ars that he still plans on releasing a Counter-Strike: Global Offensive map of Berri-UQAM, the city’s most well-known metro station. He's moving forward—the map is due sometime in March 2013—even if it means a drawn-out lawsuit brought by the local transit authority.

“If you ask me to change the name of the station—forget about it,” Diego Liatis told Ars, starting the sentence in French and switching to English for emphasis. “I understand [copyright law]. But there are limits, such as the name of the station.”

Liatis still believes he has the right to reproduce a real world location and is currently in negotiations (a polite word meaning "lawyers conversing") with the STM to determine what can be left in and what needs to be removed to satisfy the transport authority.

Liatis said he planned on meeting in person with STM representatives later this week. While he is willing to alter the STM logo and a well-known piece of art that hangs above a track, he’s not willing to compromise on the name of the station or its layout.

“Either [the STM] opposes me and we’ll meet in court,” Liatis added. “Or [the agency] will be OK with it.”

The February 11 cease-and-desist letter reminds Liatis that the STM “had warned you that it did not authorize you to use its image nor reproduction of the station in question for this project,” adding that use of its name, acronyms, graphic symbols, and seal are “prohibited by law unless permission is granted by the STM.”

Liatis may be logically "correct" but there's not much logic contained in IP laws. He may be determined to stick it to l'homme, but even members of the LAN ETS community are backing away from Liatis, most likely in hopes of a continued, lawsuit-free existence.

Simon Marin, a LAN ETS spokesperson, told Ars in an e-mail that the university, and by extension its LAN party event (LAN ETS), is "disassociating itself" from Liatis and his map. Marin did not provide any further explanation.

Despite the legal issues and disconnection from LAN ETS, Liatis plans to release the map in the near future. His pushback against government overreach and copyright-as-deterrent is admirable, but some aspects of this story are beginning to paint him as a possibly unreliable narrator.

As quoted in our original piece, and repeated in the update from Ars Technica, Liatis again states that the STM's representative had concerns about the map's usefulness to potential terrorists.

Liatis added that STM's media representative, Amélie Régis, expressed concern to him that releasing the map would allow it to be used by actual terrorists training for an actual attack. Régis also said it would be "insulting" to Montreal's Arab community.

The representative from STM, however, claims she never spoke to Liatis.

UPDATE Tuesday 5:42pm CT: Régis finally wrote back to Ars, saying that she had never spoken to Liatis, and was "really surprised to read the opposite." Ars has contacted Liatis again to clarify who exactly he spoke with at the STM.

Many governments have operated on faith-based paranoia since the 9/11 attacks, which makes it easy to believe Liatis' account of the events. Whatever concerns the STM might have had about "panics" or "terrorists," it may have kept them to itself. Nearly a week on from this interview, Ars is still waiting for Liatis to back up this claim. The STM may be using copyright to block a map it feels could potentially have this effect on would-be terrorists and/or the public, but so far, it hasn't officially stated anything to that effect.

Despite the lack of official statement, it still looks as if the STM simply wants to shut down something that represents its station but adds guns to the mix. Government entities are quick to shy away from anything controversial in the War on Terrorism age, and the STM seems to be no exception. There's a point to Liatis' efforts, but it's likely to be buried under a hefty fine and accompanying lawsuit as he shows no signs of backing down. It's a costly game of chicken and the end result may be nothing more than another footnote in case law reasserting the "right" of public entities to claim copyright protection on publicly accessible areas in order to prevent "misuse" by ordinary citizens.

The NSA's new super digital spying facility in Bluffdale, Utah got plenty of attention about a year ago, thanks to a detailed article in Wired Magazine by James Bamford that revealed many details of the center's existence. Last week, on something of a whim, Forbes reporter Kash Hill, who was nearby for another reason, decided to just drive up to the facility to see what she could see. It turns out that it was surprisingly easy to drive right up to the parking lot (though she later realized she had missed two small signs, saying that the road was private and that trespassing was not allowed). Still, you'd think that the place, even while (or perhaps especially while) under construction, wouldn't be that easy to access. Amusingly, it appears that whoever the NSA hired to program their entrance sign has a sense of humor: However, the guards who eventually came to see what Hill was doing didn't have quite the same sense of humor, asking her repeatedly to delete all the photos she had taken, and taking her ID (and that of the other person in the car who, thankfully, happened to be a knowledgeable lawyer who was able to speak up for their rights). You can read the entire harrowing tale at that link above, but Hill is eventually allowed to leave, though she did agree to delete a couple images that showed the license plate on a guard SUV, realizing that she just wanted to get out of there. The whole story is a bit surreal.

Somehow, with little fanfare, last week Rep. Zoe Lofgren (along with Reps. Eshoo, Matsui and Honda) introduced the Global Free Internet Act of 2013, which appears to be a new version of a similar bill from last year. You should read the full bill yourselves, but it points to the importance of a "single, open, global internet," as well as certain things that might threaten that. Among the things it lists are important, are that we, as a country:

(A) encourage utilization on a global basis of technology standards set by international standards-setting organizations, including industry-led and other voluntary bodies, and selected by the market;
(B) respect the security of information, privacy, and speech of Internet users;
(C) promote investment in Internet-related innovation;
(D) refrain from compelling Internet service providers and other intermediaries to restrict the free flow of information on the Internet; and
(E) allow trade in Internet-related goods, services, information, and content.

And it worries about governments seeking to censor or constrain the internet by doing any of the following:

(A) mandating unique technology standards favoring domestic producers as a condition of market access or pursuing related policies regarding standard-setting that are discriminatory and subvert the open, global nature of the Internet;
(B) sponsoring or tolerating the use of Internet-related tools to gain unauthorized access to public-sector and private-sector networks in the United States to disrupt their operation;
(C) blocking, filtering, or otherwise restricting Internet communications in a manner that discriminates against Internet-based services and content originating in other countries;
(D) monitoring Internet use and communications in a manner that restricts individual privacy and freedom; and
(E) imposing market access requirements or liabilities that discriminate against or otherwise impede Internet-related goods, services and content from other countries.

It then goes on to create a task force to take on these issues, and to help the government promote the first list, while avoiding the second. It seems like a perfectly reasonable plan, with little controversial about it, which is why I wouldn't be surprised to see Congress ignore it.

These days, it's become quite common to talk about the importance of spreading copyright maximalism around the globe based on the US's interests. After all, the US seems to be the leading country in pushing for such maximalism, and people often talk about the big copyright players and their lobbyists, as being US-centric. After all, there's Hollywood for movies, NY for publishing and NY/LA/Nashville for music. And, so much activity seems to be driven by their lobbyists -- mostly the RIAA and MPAA. However, a new study is pointing out, for all this talk of the "American entertainment industry" driving the discussion on copyright laws, that a very, very large number of these companies are actually foreign, and much of the industry is really foreign (pdf). There's a nice infographic to go along with the report as well: The paper starts out by questioning a key assumption that is made frequently, by calling out a specific statement by IP Czar Victoria Espinel:

Americans are global leaders in the production of creative and innovative services and products, including digital content, many of which are dependent on the protection of intellectual property rights.

The paper notes that many have challenged whether or not those industries are truly "dependent" on intellectual property laws, but few have explored whether or not those industries are really "American." Turns out... they're not. And, as such, if we're making policy based on just propping up the few legacy companies who run those industries, we're often funneling US money to foreign countries, rather than investing it in the US. Among the findings (many of which are in the graphic above):

• Four of the "Big Six" publishers (who represent a huge percentage of English-language book publications) are foreign-owned. More than 80% of the revenue made by the Big Six goes to foreign-owned companies.
• Only 7 of the world's top 50 publishers are US-owned.
• The book publishing business in Europe employs twice as many people as the US
• Two of the three major record labels are foreign-owned. Those two labels represent nearly 60% of the market.
• 13 out of the 20 best-selling artists are not American.
• Half of the 50 most popular movies in the US in 2012 were filmed partly or entirely outside the US.
• Over the last two years, half of all Oscar winners were foreign.
• The video game market is dominated by Japanese firms, with 70% of the market for the most recent generation coming from Japan

The report finds that this carries over to the patent side as well.

• Foreign companies obtained 7,000 more US patents than US companies in 2011 (likely a bigger gap in 2012)
• Seven of the top 10 companies getting US patents were foreign in both 2011 and 2012.
• Nearly 60% of pharmaceutical revenue is generated by foreign-owned companies.
• The majority of employees in the pharma industry (including for US-owned firms) work outside the US.

Basically, the more you look, the more you realize that even with all this talk of how we need these laws to protect US interests, a significant amount of any benefits may actually be flowing right out of the country.

The Wall Street Journal recently ran a puff piece showing just how much work it is for NBC Universal to keep fighting all those darn pirates. It's basically a propaganda piece starring Rick "Save the Corn Farmers!" Cotton, NBC's general counsel who fights piracy the way that Captain Ahab chases Moby Dick. There are all sorts of problems with the piece, including the fact that it appears to believe that just because NBC is sending a lot more takedowns, it means that the "problem" is growing. Of course, as we were just discussing last week, when you look at the actual data, it makes a pretty clear case for anti-piracy efforts doing nothing to stop piracy, but investment in lots of innovative startups providing consumers what they want being the path to success. But, that's not Cotton's style.

Anyway, Janko Roettgers, over at PaidContent, wrote a nice post debunking much of the story, which quickly got three comments that all sounded vaguely similar in their poor use of the English language -- all of which tried to spin the story into "proof" that greater enforcement, such as the six strikes effort, was needed. Two of them make the laughable claim that each infringement represents "lost revenue." That's not how it works. Here's one of the three comments:

I’m glad the author is pointing out what is pretty clear to people who browse the internet everyday, piracy is still widespread and is evolving every year. Not even taking into account the huge piracy issues overseas, each of these takedown requests represents lost revenue for both views and time spend tracking and reporting this illegal behavior. NBC will and should continue to do this because legal viewing of their content is vital for their business. But the better long term solution is to create a system where NBC isn’t playing a carnival game just to receive the proper copyright benefits for the content they invest so much in.

Of course, the real way to get to that "long term solution" is for NBC to stop playing the carnival game of takedowns -- which do nothing to reduce infringement -- and focus on making sure its content is more widely available from more legitimate sources.

Either way, Janko quickly pointed out that, in a surprise to no one, it was pretty clear that the comments were from DC-based hired shills for the entertainment industry:

Kelseliz, AlexB and SteveFeather, I’m glad you all enjoyed my story. However, I’m not too surprised you all share the same point of view. After all, the three of you commented from the same Washington D.C.-based IP address, and one of the email addresses you left points to a D.C. lobbying firm that gets paid by major labels, rights holder groups and movie studios… but I’m sure that’s all just one big coincidence.

I know that it's common in our comments for people to accuse others of being "shills." Frankly, people jump to the shill label way too fast. While it is clear that some of our commenters do work in the industry, there are very few indications that they are paid to be propaganda spreaders, and I try to give them the benefit of the doubt (similarly, I would urge our commenters to stop throwing around the "shill" term so readily -- unless there's actual evidence, don't leap to unsupported conclusions). That said, in this case it seems pretty blatant that some entertainment industry "friends" from a DC lobbying group are now out trying to spread a very poorly argued concept that we somehow "need" six strikes. I'd suggest that the RIAA, MPAA and others might find better ways to spend their money.

With Bradley Manning pleading guilty to some of the lesser charges against him, Harvard law professor Yochai Benkler -- who is a possible expert witness in the trial -- has an excellent and detailed post about why the entire case against him should be seen as a threat to the nature of whistleblowing and a free press. He notes that the US prides itself on its support of the First Amendment, even in uncomfortable situations, but this case could flip that around in a very damaging way.

A country's constitutional culture is made up of the stories we tell each other about the kind of nation we are. When we tell ourselves how strong our commitment to free speech is, we grit our teeth and tell of Nazis marching through Skokie. And when we think of how much we value our watchdog press, we tell the story of Daniel Ellsberg. Decades later, we sometimes forget that Ellsberg was prosecuted, smeared, and harassed. Instead, we express pride in a man's willingness to brave the odds, a newspaper’s willingness to take the risk of publishing, and a Supreme Court’s ability to tell an overbearing White House that no, you cannot shut up your opponents.

Yet, in the case of Manning, the government is going much, much, much further. It is trying to make leaking information to the press the equivalent of espionage and aiding the enemy -- a capital offense. If you want to create chilling effects on free speech and a free press, this is how you do it. If you believe in the stories above, about the fundamental respect for the First Amendment, then the nature of the prosecution should worry you a great deal.

As for those who claim that leaking to Wikileaks is not like the Pentagon Papers or leaking something to the press, Benkler's detailed analysis shows why that's bunk. Since Wikileaks released some of the material that Manning sent them, the organization has been painted as being this evil anti-American organization, and there's also been a big spotlight on Julian Assange, who is certainly not presented as a particularly likeable character. But, as Benkler points out, before Wikileaks got that material, it was regularly seen as an upstart media property, and a great place for whistleblowers to go to expose fraud and corruption. In other words, the idea that Manning chose to go to Wikileaks to harm the US seems quite unlikely. His story of exposing wrongdoing by the US and forcing a debate on how to have America live up to its principles has more credibility when you realize just how Wikileaks was portrayed prior to Manning's material being submitted:

The reputation that WikiLeaks has been given by most media outlets over the past two and a half years, though, obscures much of this—it just feels less like “the press” than the New York Times. This is actually the point on which I am expected to testify at the trial, based on research I did over the months following the first WikiLeaks disclosure in April 2010. When you read the hundreds of news stories and other materials published about WikiLeaks before early 2010, what you see is a young, exciting new media organization. The darker stories about Julian Assange and the dangers that the site poses developed only in the latter half of 2010, as the steady release of leaks about the U.S. triggered ever-more hyperbolic denouncements from the Administration (such as Joe Biden's calling Assange a “high-tech terrorist”), and as relations between Assange and his traditional media partners soured.

In early 2010, when Manning did his leaking, none of that had happened yet. WikiLeaks was still a new media phenom, an outfit originally known for releasing things like a Somali rebel leader’s decision to assassinate government officials in Somalia, or a major story exposing corruption in the government of Daniel Arap Moi in Kenya. Over the years WikiLeaks also exposed documents that shined a light on U.S. government practices, such as operating procedures in Camp Delta in Guantanamo or a draft of a secretly negotiated, highly controversial trade treaty called the Anti-Counterfeiting Trade Agreement. But that was not the primary focus. To name but a few examples, it published documents that sought to expose a Swiss Bank’s use of Cayman accounts to help rich clients avoid paying taxes, oil related corruption in Peru, banking abuses in Iceland, pharmaceutical company influence peddling at the World Health Organization, and extra-judicial killings in Kenya. For its work, WikiLeaks won Amnesty International's New Media award in 2009 and the Freedom of Expression Award from the British magazine, Index of Censorship, in 2008.

It's sometimes difficult to remember that, given everything that happened in the past two and a half years.

Benkler goes on to point out that the "precedents" that the US tries to rely on to argue that whistleblowing to the press is a form of aiding the enemy are ancient, obsolete and laughable. Many of the arguments go back to some Civil War-era precedents, and even then, when you look at the details you realize they were discussing something extremely different than what happened with Manning (i.e., the cases involved using the press to send coded messages about confidential info, not releasing the info to the public).

In the end, Benkler makes a powerful point:

If Bradley Manning is convicted of aiding the enemy, the introduction of a capital offense into the mix would dramatically elevate the threat to whistleblowers. The consequences for the ability of the press to perform its critical watchdog function in the national security arena will be dire. And then there is the principle of the thing. However technically defensible on the language of the statute, and however well-intentioned the individual prosecutors in this case may be, we have to look at ourselves in the mirror of this case and ask: Are we the America of Japanese Internment and Joseph McCarthy, or are we the America of Ida Tarbell and the Pentagon Papers? What kind of country makes communicating with the press for publication to the American public a death-eligible offense?

What a coup for Al Qaeda, to have maimed our constitutional spirit to the point where we might become that nation.

Given all of that, you can see why some have nominated Manning for the Nobel Peace Prize. While it is highly unlikely that Manning will be given serious consideration for the prize, the more you look at the case, the more you realize how dangerous the US government's own argument is here, and how much of an attack it is on fundamental principles we supposedly believe in and fight for here in the US.

It is a standing modern truth that you can take a scary word in the English language and turbocharge its terror factor by putting the word "cyber" in front of it. Don't believe me? Murder. Some guy stabs or shoots me. Cyber-murder. Holy crap! A dude can reach through the computer and electrocute my face! The problem, as we've discussed previously, is that many of the supposed facts used to hype cybercrime are massively overstated, and the unfortunately resulting hysteria breeds atrocities like The Patriot Act, because computers are terrifying and apparently the government is not. Of course, it doesn't end with crime. Cyberwar, cyber-terrorism, these words now permeate the bloodstream like terrifying nanobots, all while the use of technology and the internet marches forward at incredible rates.

But is the term "cybercrime" even useful anymore? When NYC district attorneys like Manhattan's Cyrus Vance suggest that pretty much all crime includes a cyber element, can't we just drop the scare words and go back to calling it "crime?"

According to Vance, cybercrime isn't just a growing trend—it's a fundamental shift in the way modern crime works. It has already reached a point where nearly every crime in the city involves a cyber component.

"It is rare that a case does not involve some kind of cyber or computer element that we prosecute in our office—whether it is homicide, whether it's a financial crime case, whether it's a gang case where the gang members are posting on Facebook where they're going to meet," said Vance.

It seems to me that just because there is a small element in a murder that involves a computer, that doesn't make it cybercrime, but that's apparently how it's being reported at the DA's office. This, of course, allows federal agencies like DHS and the CIA to get involved, where they, otherwise, would not.

The city is getting help from the Secret Service, Department of Homeland Security, local businesses, and others. This system of cooperation was actually set up in 2001 when President George W. Bush signed the PATRIOT Act into law. It established the Electronic Crimes Task Forces (ECTFs) under the Secret Service. According to the Secret Service website, "The concept of the ECTF network is to bring together not only federal, state and local law enforcement, but also prosecutors, private industry and academia."

I wouldn't want to necessarily suggest that having the alphabet agencies get involved at some level is always going to be a bad thing, but perhaps it is time we all had a conversation about how we, as citizens, want to be policed in America. That question is going to dovetail into whether or not we want scare-words like "cyber" to result in law enforcement evolving away from the local level to the federal level. For a country that bangs the "get government out of our lives" drum so frequently, often from the party that spawned The PATRIOT Act no less, we seem quite willing to let irrational fear dominate us.

Missed this when it first came out, but Bloomberg ran a fantastic report at the beginning of February, highlighting how piracy and fraud were key components to helping America catapult into the industrial revolution. In fact, there are reasonable arguments to be made that if the US was not a "pirate" nation, it would not have had the kind of success that it has had as the industrial world leader. We've discussed some of this in the past, and have highlighted how Eric Schiff's research showed how other countries (the Netherlands and Switzerland) industrialized by explicitly rejecting patents. The US didn't go that far, but it did involve quite frequent copying of the efforts of others and then improving on them, without fear of repercussions.

In its adolescent years, the U.S. was a hotbed of intellectual piracy and technology smuggling, particularly in the textile industry, acquiring both machines and skilled machinists in violation of British export and emigration laws. Only after it had become a mature industrial power did the country vigorously campaign for intellectual-property protection.

This is a point we've made many times as well. Patent and copyright system supporters frequently argue that stronger laws are needed to create incentives for creation and innovation. But, there are a ton of studies that show the actual pattern runs the other way. When you look at the pace of innovation before and after a change to patent laws, or if you do cross-country comparisons at the same time for similar types of economies, you quickly see that those with weaker laws show more innovation. The ratcheting up of patents is rarely about increasing incentives to innovate. Patents are put in place with the support of incumbents, knowing that it allows them to "exclude" competitors and upstarts. It is not a tool of innovation, but a tool to suppress disruptive innovation. Not having those laws (or having them widely ignored) leads to a situation in which people continually improve what's out there -- which is how the US economy took over the world during the industrial revolution.

The most candid mission statement in this regard was Alexander Hamilton’s “Report on Manufactures,” submitted to Congress in December 1791. “To procure all such machines as are known in any part of Europe can only require a proper provision and due pains,” Hamilton wrote. “The knowledge of several of the most important of them is already possessed. The preparation of them here is, in most cases, practicable on nearly equal terms.”

Notice that Hamilton wasn’t urging the development of indigenous inventions to compete with Europe but rather the direct procurement of European technologies through “proper provision and due pains” -- meaning, breaking the laws of other countries. As the report acknowledged, most manufacturing nations “prohibit, under severe penalties, the exportation of implements and machines, which they have either invented or improved.” At least part of the “Report on Manufactures” can therefore be read as a manifesto calling for state-sponsored theft and smuggling.

In fact, as the article notes, our own original Patent Act recognized this very fact, by refusing to cover foreign inventions.

Of course, the idea that loose patent and copryight laws can help nations develop economically is not a new idea. Over a decade ago, we were writing about how various officials were admitting that strong IP laws probably did more harm than good for developing nations. And, yet, the US continues to try to push its extreme maximalism for copyright and patent laws around the globe. Either they are doing this out of ignorance (a real possibility) or because they actually understand the truth, which is that other countries with IP laws like the ones in the US will see a slow down in their economic development.

Either way, those who insist that the US was founded on the principles of strong respect for "intellectual property" haven't paid that much attention to the actual history of American industrialization.

Following the White House officially coming out and saying that mobile phone unlocking should be legal, the Librarian of Congress has issued what feels like a passive aggressive response, basically saying that their job is not to consider the public policy, but just to follow the specific rules under the DMCA.

Both the Librarian of Congress and the Register of Copyrights value our colleagues in the administration and the thoughtful discussions we have had with them on this issue. We also agree with the administration that the question of locked cell phones has implications for telecommunications policy and that it would benefit from review and resolution in that context.

The question of locked cell phones was raised by participants in the Section 1201 rulemaking conducted between September 2011 and October 2012 by the Register of Copyrights, who in turn advises the Librarian of Congress. The rulemaking is a process spelled out by the Digital Millennium Copyright Act in which members of the public can request exemptions from the law to enable circumvention of technological protection measures. In the case of cell phones, the request was to allow circumvention of technological protection measures controlling access to copyrighted software on cell phones.

The rulemaking is a technical, legal proceeding and involves a lengthy public process. It requires the Librarian of Congress and the Register of Copyrights to consider exemptions to the prohibitions on circumvention, based on a factual record developed by the proponents and other interested parties. The officials must consider whether the evidence establishes a need for the exemption based on several statutory factors. It does not permit the U.S. Copyright Office to create permanent exemptions to the law.

As designed by Congress, the rulemaking serves a very important function, but it was not intended to be a substitute for deliberations of broader public policy.

In other words, "hey, don't blame us -- we just did what we were supposed to do, and that's got nothing to do with policy." I find that a bit disingenuous. Clearly, a part of the DMCA triennial exemptions is to recognize when the law is creating a situation that makes little common sense, and to try to act as a valve to prevent the blocking of certain uses and technologies. Here, they failed to do so, and the White House has called them out on it.

Unfortunately, we're still left scratching our heads as to why the White House claims this should be fixed via telecom law, when the issue arose entirely out of copyright law. It looks like the White House is trying to do some tap dancing to avoid admitting that the DMCA anti-circumvention clause is seriously broken.

Lots of news regarding file-sharing has come out of Sweden over the years, but as TorrentFreak points out, until now, there's never been a prosecution for alleged unauthorized sharing using BitTorrent. The current case is unusual in a number of other respects:

The claim is that on June 8, 2011 a man from Gothenburg shared Beyonce's album '4' in advance of its June 24 commercial release date. The case was made even more interesting following the revelation that the 47-year-old is a music industry worker.

Because the album in question was a pre-release version, the Swedish prosecutor says he believes a heavy punishment could be handed down. As if that weren't enough, the label concerned -- Sony Music Entertainment -- has said that it intends to seek damages in a civil case:

In a submission to the Gothenburg District Court, Sony said that its business has been negatively affected by the leak on a number of fronts. The label says it has suffered damage to its marketing strategy, sales revenues and has also incurred additional costs. Sony adds that its relationship with Beyonce has been damaged and the artist's reputation hurt.

For all of the above Sony say they will claim 1.5 million kronor from the man, which is roughly $233,000.

But as various studies have suggested, rather than hurting Sony, it's just as likely that this leak helped make the official launch even more successful than it would have been. Similarly, it's hard to see how Beyonce's reputation was hurt by such a leak, since the more passionate the fan, the more pleased they would be by obtaining early access.

Anyway, the figure of $233,000 seems plucked out of the air, as is so often the case in this evidence-free area. Or perhaps it was inspired by the most famous damages imposed for unauthorized sharing of music, those against Jammie Thomas, who was fined $222,000 in her first trial (which then went up to $1,920,000 in the second trial, and to $1,500,000 in the third trial.) The fact that her sorry saga is still dragging on is an indication that even if Sony wins the current action, there are likely to be appeals against such a disproportionate and blatantly punitive figure.

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One of the richest seams of open data concerns transport. After all, by their very nature, transport systems generate huge amounts of new data every day -- times, routes, travel options. Similarly, huge numbers of people use multiple means of transport, which means there is a big potential audience for analyses of that data. And it's definitely in the interest of transport operators to make that information freely available so that developers can use it in new ways, since that is likely to make traveling easier, and lead to increased custom.

Despite that manifest logic, transport companies have been slow to release that data in a form that developers can use. And even when they do, it often comes hedged around with conditions that make it useless. Here's an example from the UK, where Alex Hewson has been trying to get hold of live train data to create applications using it.

As his fascinating blog post explains, something called the Association of Train Operating Companies (ATOC) collates the primary data:

Through its subsidiary TISL ("Train Information Services Limited", more commonly known as NRE / National Rail Enquiries) ATOC owns a datasource called Darwin. If you want an API for querying live train running information complete with all the delays and cancellations at any given moment they're the only shop in town.

Fair enough, you might think, since it's their data. But it's not quite so simple:

[ATOC] look a bit like a public body but aren't, instead taking funding from the various train operators. ATOC are fond of making the claim that they don't take a penny of public money but it's somewhat disingenuous: their funding comes from train operators and many of those have been subsidized by [UK] taxes.

To be exact, the UK's train operators receive over $6 billion from taxpayers each year. This means that there is a strong case for the train data to be released as open data -- over and above the fact that doing so will probably increase the number of people traveling by train, which has got to be good news for the train operators that fund ATOC.

As a series of blog posts by Hewson reveals, the relationship between ATOC and developers has not been of the best, especially once a formal license to use the data was required in 2009.

During a "Developer Engagement Day" in January this year, and responding, perhaps, to criticism over the way it makes this publicly-funded data available, NRE expressed a desire to work with the development community more constructively. Hewson was naturally keen to see the details of the license that was being offered in the wake of this new openness, and noted a couple of unusual elements:

There are clauses saying you'll lose access to the data if you bring TISL into "disrepute" and that the signatory may not publicly discuss the subject without written consent from TISL.

15.2. Either party shall be entitled to terminate the Agreement on notice without liability at any time if:

...

15.3.1. the Customer brings TISL, the TOCs or the passenger rail industry into disrepute

Disrepute is a fabulously broad word -- it covers anything that blackens their name even if what you said was true. In other words you aren't allowed to criticise them.

It gets worse:

No public announcement, communication or circular (other than to the extent required by law) concerning the subject matter of this Agreement shall be made or despatched [sic] by the Customer without the prior written consent of TISL.

WTF. You can't use the live UK train data without accepting a gagging clause.

TISL/ATOC clearly still has a lot to learn about how to work with developers, to say nothing of what it means to make information generated with the support of taxpayers freely available as open data, as is fast becoming the norm in many countries.

By a happy coincidence, the body that oversees the national railways in the UK, the "Office of Rail Regulation", has been conducting a review into "how NRE deals with applications for access to its RTTI database ('Darwin')." I'm sure many of the developers who have had dealings with ATOC's subsidiary over the last few years will have submitted their views on this topic. I can't wait to read them.

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