Thanks to a fair bit of propaganda making the rounds, it feels like CISPA -- the cybersecurity bill that seeks to obliterate privacy protections without explaining how that will increase our security -- is on a bit of a fast track towards approval. However a bit of a stumbling block may have popped up. Congressional Representatives Bennie Thompson and Yvette Clarke -- the ranking members on the Committee on Homeland Security and the Subcommittee on Cybersecurity, Infrastructure Protection and Security Technologies -- have suddenly realized that all of this is happening without their support. That is, they finally realized that, while this is being handled by the Intelligence Committee, it directly impacts Homeland Security and Cyersecurity (obviously), and so they're suddenly asking why it's not going through their committees.

This is just a basic jurisdictional dispute between various fiefdoms within Congress. They pop up every now and again, and usually get resolved in due time. However, in the short term, it could certainly represent a speed bump that hopefully slows down the pace at which Congress seems to want to rush into approving CISPA.

As everyone knows, the well-trodden path for technology startups starts in a garage, runs through angel rounds and seed rounds and other preciously named rounds of venture capital investments, and ends up with the glorious dream of listing on Nasdaq, yaaaaay. As everyone also knows, that last thing has recently become more of a boooo. The Nasdaq listing is less necessary, as modern startups tend to traffic in ethereal goods like Likes and so don’t really need to raise capital via IPOs, and it’s less pleasant, because you gotta file public documents, and your stock can go down, and something something something high-frequency robots, and David Einhorn can buy your stock and yell at you and stuff. Somehow being public has cost Facebook like forty billion dollars of market cap which is kind of amazing when you think about it.

Nasdaq is aware of this dimming of its value proposition and has come up with a new one. What if it told you you could be listed on Nasdaq but without the public documents and the David Einhorn? Would that be of interest to you?

The NASDAQ OMX Group, Inc. and SharesPost, Inc. announced today a joint venture that will establish the preeminent marketplace for private growth companies. … The NASDAQ Private Market (NPM) will provide improved access to liquidity for early investors, founders and employees while enabling the efficient buying and selling of private company shares. While NASDAQ will retain a majority stake in the venture, specific terms of the joint venture were not disclosed.

“The support of entrepreneurs is a fundamental element of our DNA at NASDAQ OMX,” said Bruce Aust, EVP of NASDAQ OMX. “The NASDAQ Private Market will provide private companies additional flexibility as they plan for their future and, at the same time, bring the investment community unique opportunities. By combining our resources, expertise and reach with SharesPost’s established technology, we will bring scale, efficiency and transparency to this marketplace.”

An increasing number of companies are choosing to remain private longer, which requires an efficient means to access liquidity for employees and investors. NPM will offer a complete, end-to-end solution that will enable a private company to control the marketplace for its shares. Transactions on NPM will meet NASDAQ OMX’s industry-leading standards for security, compliance and client support.

Details are sketchy but Nasdaq Private Market will be run by SharesPost’s founder, and one shorthand way to think about it is that “it’s SharesPost, only it’s called Nasdaq.” Right? Also more money and computers and stuff, but basically the point of this JV seems to be to capitalize on the fact that telling your crazed day-trader uncle “oh we trade on the Nasdaq [any sequence of words] Market¹” is much more palatable than “we trade on SharesPost. No, with a capital P. I think.”

And what is SharesPost? Well it’s a private stock marketplace, plus various bells and whistles, though NPM will focus on the marketplace. Here are some of the advantages it advertises to issuers:

Set parameters and maintain control over who can buy, who can sell, how much, and when. SharesPost allows you to create a customized Private Investor Portal to manage your secondary transactions. … Manage shareholder transactions to minimize distraction to management.

Distractions like David Einhorn! A key advantage of trading on SharesPost instead of Nasdaq is you get to decide who can buy your stock, so you can keep out activists and raiders and HFT robots. (And, though they’re not quite in the “bad people who might buy your stock” category: you can keep out short sellers.) Another advantage has to do with public disclosure; you can’t literally get away with telling your investors nothing, but you can at least only tell it to your investors, with “permission-based access to information on prospective companies.”

So: I have no problem with this. People use phrases like “shareholder democracy” and “shareholder rights” in ways that imply that corporations are democracies or that shareholders have rights. Those are silly ideas! Shareholders have money and they give that money to companies in exchange for what they give the money to the companies in exchange for. If you gave your money to Dell, you had a set of expectations about how Dell would treat you – as a fiduciary and so forth – based on the securities laws, Delaware corporate law, Dell’s charter and bylaws, and market custom and precedent; maybe now you’re disappointed, I don’t know.

But those expectations are only binding if you actually expect them, and these days they’re loosening up. If you gave your money to Carlyle Group, you weren’t expecting fiduciary duties, because they told you not to. If you gave your money to Facebook, you weren’t expecting to have a meaningful vote on anything. If you gave your money to CommonWealth REIT, honestly, what were you thinking? There are some constants, or near-constants – you pretty much always expect to be able to sell your stock to any willing buyer – but even that isn’t in the Ten Commandments. REITS at least in theory restrict sales to foreign buyers.

The rules by which shareholders have certain rights come from mostly state corporate law – which is for the most part a flexible set of default rules that can be changed by corporate charter; from federal securities laws – which for the most part apply to public companies, not SharesPost-y companies; and from the rules of NYSE and Nasdaq. A lot of the more persnickety corporate governance rules – you need lots of independent directors, you need to let shareholders vote on whether to issue tons of stock, that sort of thing – are NYSE and Nasdaq rules, not actual laws. If you stay private, you have a ton of flexibility to structure around all of those expectations. It’s just hard to raise any money.

But Nasdaq Private Market should help with that: investors will be more likely to invest in private companies if there’s an established, Nasdaq-branded platform for them to get liquidity. And, y’know, if they’ll be allowed to sell. But that’s a matter of negotiation; you can imagine companies raising money with agreements that let the investors sell, but place limits on to whom and how much. That will presumably depress the price the company can get for its shares, versus a pure public capital raise, but maybe it’s worth it to avoid, um, management distraction. Also short-sellers.

There’s some reason to think that the set of liquidity, voting, fiduciary, etc. rights that public-company shareholders (usually) have is the “right” set, the set that maximizes the value of public companies. Remember, some of those rights come not from laws but from voluntary NYSE/Nasdaq listing rules: they’re rules that profit-seeking enterprises, somewhere in the hazy past, thought were necessary to attract capital to their marketplace. But that hypothesis isn’t tested a whole lot. It’s not easy for NYSE and Nasdaq to change their rules. When companies like Facebook come to market with horrible governance, their IPOs still do pretty well. (I mean, until they price, whatever.)

Who knows, maybe Nasdaq Private Market will end up with its own rigid set of listing rules, but my guess is not. My guess is that it will offer companies a lot of flexibility in striking their own balance between shareholder-friendly policies that attract investment² and shareholder-restrictive policies that make management happy and undistracted. That’s good for managements, and not all bad for investors: instead of one-size-fits-all rights, they can in effect get paid to trade off liquidity and governance rights that they don’t care much about. Some investors may get value out of that. Probably not David Einhorn though.

Nasdaq to Launch Private-Share Exchange in JV With SharesPost [WSJ]
NASDAQ OMX and SharesPost to Form Private Market [Nasdaq OMX]

1. Did you know that there are both a Nasdaq Global Market and a Nasdaq Global Select market and that they’re different things?

2. And employees. A main point for private-company marketplaces is to allow early employees to get liquidity in their equity compensation. You could imagine a theory in which those employees care a lot about the details of their liquidity opportunity, though that might be a stretch.

Other posts from Dealbreaker:

• Even So, Mark Cuban Is Probably Glad He Got Rid Of His Mamma.com Stock
• Billionaire No Longer Using Dial-Up
• Fed Kicks Off Awkward Week For Banks

Technology can be very useful for helping teachers reach out to more students and for spreading information efficiently among schools. Some grading can be automated, but obviously not all grading can be done with heuristics and strict rules. Here are just a few examples of grading challenges that teachers are already facing that might need some technological improvement.

• Grading on a curve can backfire if all of your students scheme to get the same grade: a zero. Grading policies have adapted to account for this boundary condition, so students beware.... [url]
• Some startups are collecting as much grading data as they can, in hopes of obtaining some of the millions of venture capital directed at the education sector. Now when teachers threaten that students' actions will go on a permanent record, they actually have a database that will back them up. [url]
• Massive open online courses (MOOCs) need to watch out for massive cheating schemes. Test proctoring software is getting more sophisticated, but presumably some students are always trying new ways to cheat. [url]

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

We've talked for years about the government's use of "national security letters" or NSLs, which are effectively a way for law enforcement types to seek information with less oversight than a subpoena, and which usually come with a very, very extreme gag order attached. Despite the fact that, by their own admission, law enforcement has regularly and systematically abused this tool, they are still widely used and there has been little effort to block the abuses. Google's latest transparency report is seeking to reveal some data about the NSLs it has received, but without revealing too much. Rather than directly revealing how many NSLs it has received, it is posting ranges (in bunches of 1,000) -- and apparently the company got at least some level of approval from the government to do this ("We're thankful to U.S. government officials for working with us").

By itself, the data doesn't seem that enlightening. However, there is some useful information you can pick out of there, and who better to pick out that info that Julian Sanchez, who has followed this issue closely. He's found that you can actually tease out some useful info even with those broad ranges.

It's illuminating to compare the minimum number of users affected by NSLs each year to the numbers we find in the government's official annual reports. In 2011—the last year for which we have a tally—the Justice Department acknowledged issuing 16,511 NSLs seeking information about U.S. persons, with a total of 7,201 Americans' information thus obtained. That's actually down from a staggering 14,212 Americans whose information DOJ reported obtaining via NSL the previous year. Remember, this total includes National Security Letters issued not just to all telecommunications providers—including online services like Google, broadband Internet companies, and cell phone carriers—but also "financial institutions," which are defined broadly to include a vast array of businesses beyond such obvious candidates as banks and credit card companies.

What ought to leap out at you here is the magnitude of Google's tally relative to that total: They got requests affecting at least 1,000 users in a year when DOJ reports just over 7,000 Americans affected by all NSLs—and it seems impossible that Google could account for anywhere remotely near a seventh of all NSL requests. Google, of course, is not limiting their tally to requests for information about Americans, which may explain part of the gap—but we know that, at least of a few years ago, the substantial majority of NSLs targeted Americans, and the proportion of the total targeting Americans was increasing year after year. As of 2006, for instance, 57 percent of NSL requests were for information about U.S. persons. So even if we reduce Google's minimum proportionately, that seems awfully high.

Sanchez wonders if the DOJ is effectively under-counting how many NSLs it uses by pretending that some of the NSLs they issue shouldn't count towards its official tally of NSLs.

There's a simple enough explanation for this apparent discrepancy: The numbers DOJ reports each year explicitly exclude NSL requests for “basic subscriber information,” meaning the “name, address, and length of service” associated with an account, and only count more expansive requests that also demand more detailed “electronic communications transactional records” that are “parallel to” the “toll billing records” maintained by traditional phone companies.

That would mean that the NSL number that the DOJ reports is not particularly accurate, and that the FBI really issues a hell of a lot more NSLs (not so). Shocking reveal of the day: the DOJ may not be entirely forthright about how often it's spying on Americans using a widely abused process with little oversight.

Back when Universal Studios sued the makers of a "porn parody" of the insanely popular book 50 Shades of Grey, we were among those who pointed out that the book itself was really originally a fan fiction work based on the Twilight books/movie series, and that it seemed a bit hypocritical to not allow other derivative works. I don't know if it was because of us calling out this fact, but the producers, Smash Pictures, are using that exact point in their defense... but then are bizarrely arguing that this makes the work in the public domain.

On information and belief, as much as 89% of the content of the allegedly copyrighted materials grew out of a multi-part series of fan fiction called Masters of the Universe based on Stephenie Myer's Twilight novels. On information and belief, this content was published online between 2009 and 2011 in various venues, including fanfiction.net and the person website of Erika Leonard. On information and belief, much or all of this material was placed in the public domain.

To which we can only say, "huh?!?" I could see an argument being made about transformative works and fair use, but there's no indication anywhere that the work is in the public domain. Just because the same author posted a very similar version online earlier has no bearing on the copyright in the work itself. It kind of makes you wonder about the lawyer that Smash Pictures has working on this case that they'd even make this argument.

Not surprisingly, Universal Studio's high priced lawyers hit back pretty quickly, calling the filing "slapped-together" and pointing out that the whole public domain argument makes no sense.

Moreover, their unsupported assertion that “as much as 89% of the allegedly copyrighted material is derived from previously published, public domain fan fiction based on Stephanie Myers’ Twilight novels” is both deliberately misleading and legally flawed. Defendants suggest that the Fifty Shades Trilogy is “derived from” works by authors other than Erika Mitchell. However, Defendants are in fact referring to an earlier version of the same story written by Ms. Mitchell, which they in their own improper deposition notice identified as “Master of the Universe.” ..... Defendants do not and cannot provide any legal authority for the proposition that an earlier version of Ms. Mitchell’s work is now in the “public domain.” They can hardly defend their infringement of Plaintiffs’ copyrights in the Fifty Shades Trilogy by claiming that it is substantially similar to Ms. Mitchell’s own earlier work.

Indeed. While I still think the lawsuit itself is silly, the public domain claim here is just wacky.

So, it's come to this. Oh, wait. I've already used that opening, back when I thought the pinnacle of guns-n-schools overreaction had been approached, if not actually surmounted. Let's start again.

So, NOW it's come to this. A seven-year-old suspended from school for crudely fashioning his breakfast pastry into a gun-like shape and brandishing it in the most menacing fashion a gun-shaped pastry can be wielded.

A 7-year-old Anne Arundel County boy was suspended for two days for chewing a breakfast pastry into the shape of a gun and saying, “Bang, bang”— an offense the school described as a threat to other students, according to his family.

The pastry “gun” was a rectangular strawberry-filled bar, akin to a Pop-Tart, that the second-grader had tried to nibble into the shape of a mountain Friday morning, but then found it looked more like a gun, said his father, William “B.J.” Welch.

Yes. A Pop Tart knockoff makes a handy makeshift weapon, perhaps explaining why pastries are no longer served in prisons. When I say "it's come to this," it really has, but it's been a long time coming and there's plenty of precedent.

- Feb. 5, 2013 - A ten-year-old Virginia student was suspended for bringing an orange-tipped toy gun on a bus.

- Feb. 1, 2013 - A 9-year-old student was suspended for bringing a 2-inch toy gun on a key fob to school.

- Jan. 29, 2013 - A 5-year-old student could be suspended for crafting a Lego gun during an after-school program. Not only that, but he'd crafted his fingers into a gun mere weeks earlier.

- Jan. 22, 2013 - A 5-year-old is suspended for discussing her Hello Kitty bubble gun, saying, "I'll shoot you, you'll shoot me and we'll all play together."

- Jan. 2, 2013 - A 6-year-old in a Washington D.C. school was suspended for making a gun gesture with his hands.

- August 28, 2012 - A deaf 3-year-old preschooler is asked to change the sign he uses for his name -- Hunter -- which he signs by forming a gun with his hands. Apparently, "saying" his name violates the school's weapon policy.

- Feb. 24, 2012 - A drawing of a gun by a four-year-old resulted in the arrest of her father when he came to pick her up from school. He was detained by police and strip-searched while his children were questioned by social services. The gun his child depicted? A plastic toy that belonged to his kids.

That's just a sampling. There are many more stories like these out there. There are many that are underreported or never reported, where parents just deal with the ridiculous outcome of zero-tolerance policies. For some reason, many schools still labor under the delusion that "zero tolerance" equals "tough, but fair." It's neither, and utilizing zero tolerance policies simply prunes the whole process back to a disfigured stump devoid of logic, perspective or context.

So, a child eats something and starts playing with his food because it resembles something other than the RDA-approved Pop Tart knockoff. And his school responds by twisting its own weapons policy into a parody of itself. The actual wording pertaining to prohibited items, courtesy of Lowering the Bar, reads like this:

Any gun of any kind, loaded or unloaded, operable or inoperable, including any object other than a firearm which is a look-a-like of a gun. This shall include, but is not limited to, pellet gun, paintball gun, stun gun, taser, BB gun, flare gun, nail gun, and air soft gun.

How does this policy apply to the pastry? That's a great question, and Lowering the Bar doesn't have an answer:

Josh's gun was not a firearm, because it was a pastry, and it seems highly unlikely that it qualified as a gun "look-a-like," again because it was a pastry. It certainly is nothing like any of the "look-a-like" items set forth in the list, largely because those items are not pastries.

The school's logic apparently is that if it vaguely resembles a gun and someone is pretending it's a gun, then it's a gun look-a-like. Case closed.

This, in and of itself, would be pathetic enough. But it gets worse. The school sent home a letter regarding the (non) incident, which hilariously offers the assistance of staff counselors for anyone "troubled" by the weaponized pastry.

Dear Parents and Guardians:

I am writing to let you know about an incident that occurred this morning in one of our classrooms and encourage you to discuss this matter with your child in a manner you deem most appropriate.

During breakfast this morning, one of our students used food to make inappropriate gestures that disrupted the class. While no physical threats were made and no one [was] harmed, the student had to be removed from the classroom.

* * *

As you are aware, the ... Code of Student Conduct and appropriate consequences related to violations of the code are clearly spelled out in the Student Handbook, which was sent home during the first week of school and can be found on our website, www.aacps.org....
If your children express that they are troubled by today's incident, please talk with them and help them share their feelings. Our school counselor is available to meet with any students who have the need to do so next week. In general, please remind them of the importance of making good choices.

Kevin Underhill at LTB adds:

Pretty sure that if your children are "troubled" by another kid biting a pastry into something that looks sort of like a gun and waving said pastry around, you have already failed as a parent.

And I'd add that if you've done even a merely passable job as a parent, the only "feeling" your children might want to "share" is that their school is run by officious asshats, even if they haven't quite developed the vocabulary to say that in so many words. (Don't kid yourselves, parents: they're quite capable of swearing well above their grade level.)

This is the nadir of the education system's zero tolerance weapon policies. Zero tolerance does nothing more than relieve the administrative staff from the possibility of having blood on their hands. No situtation is too ridiculous to be taken seriously -- and punished harshly. Reducing every incident to binary ensures that no school employee can ever be held responsible for overreacting to any perceived "threat," no matter how innocuous. In many ways, the education system is a reflection of our current "homeland security" ecosystem where the endless pursuit of "safety" has become the impetus for thousands of terrible policies, all enforced inflexibly.

There's a way to pull out of this nosedive but it involves many, many people being willing to make judgement calls on the fly and able to face the heat should their judgement falter. Unfortunately for many in the system, the risk is much higher than the reward. For many in these positions, the possibility of being wrong is incapacitating and zero tolerance policies relieve this pressure. Trying to steer the system back towards a greater reliance on common sense won't be easy, but continuing to let it drift in its current direction will do nothing to improve the safety and security of our schools, much less our country.

There's a lot of hand-wringing and moral panics around "anonymous commenters" online supposedly saying all sorts of nasty stuff. Of course, as we've discussed, some of the best comments in our own discussions seem to come from anonymous commenters. Yes, some leave some crazy comments, but anonymity by itself is not the problem so many people think it is. Still, an Irish Senator, Eamonn Coghlan, thinks that the way to deal with online commenters he doesn't like is to make them all pay to post any commentary online. Specifically, he apparently suggested that "the issue of anonymity" could be solved by "getting people to pay to post on social media websites or [to] register their passport numbers for IP addresses." Because I'm sure that will really help build out the internet, when everyone has to think about whether their latest communication to a family member is worth the money.

This is rather incredible. We already wrote about Prenda Law's series of defamation lawsuits against commenters on two key blogs that have been instrumental in exposing their shenanigans: FightCopyrightTrolls and DieTrollDie. While John Steele has dismissed his claim, the other two suits are still moving forward as far as I know. And now it's come out that Prenda Law's Paul Duffy sent a ridiculously broad subpoena to Wordpress demanding every IP address of every visitor who has visited either site since the beginning of 2011. Basically, they're looking for everyone who has ever visited either site:

Our client is requesting all Internet Protocol addresses (including the date and time of that access in Universal Coordinated Time) that accessed the blogs located at dietrolldie.com and fightcopyrighttrolls.com between January 1, 2011 through the present. Please provide this information in an Excel spreadsheet.

The subpoena is from Paul Duffy, so it's a bit ridiculous to claim "our client" since he is the client. This seems like a pretty clear abuse of the subpoena process, though, coming from Prenda Law, whose specialty is doing anything it possibly can to get IP addresses, perhaps it's no surprise. The subpoena was issued in association with the original claim that was filed in state court. The cases have all been removed to federal court, and hopefully the lawyers at Wordpress know better than to just cough up this info like that. Even more ridiculously, Duffy tries to claim that this is an "emergency" so they shouldn't waste any time in handing over the info:

Due to the emergency nature of the requested information, it is imperative that your organization responds to the subpoena immediately. The requested information is perishable and vital to the claims asserted in a complaint alleging widespread and systematic defamation.

What hogwash. They're looking for data going back to January of 2011. If Wordpress has logs going back that far, it's not like they're suddenly going to disappear. And, of course, the "widespread and systematic defamation" claims are already pretty questionable.

It's not difficult to look at this and see a likely attempt at creating chilling effects to try to scare people off from visiting those sites. Considering that Prenda has been collecting all sorts of IP addresses in its various copyright trolling lawsuits, can you imagine what they might do if they can cross reference IP addresses of visitors to those sites with the IP addresses they've already sued over?

A few weeks ago we wrote about Iceland's thoroughly daft idea of trying to block porn there. Bad proposals for the Internet always seem to spread, and so it should perhaps come as no surprise that the European Parliament will be considering a similarly unworkable proposal, but in a rather more covert way, as the Pirate Party politician Christian Engström noted on his blog:

Next week in Strasbourg, probably on Tuesday, the European Parliament will be voting on a Report on eliminating gender stereotypes in the EU. To promote gender equality and eliminating gender stereotypes are of course very laudable goals, so my guess would be that unless something happens, the report will be approved by the parliament, possibly by a very large majority.

That would be a good thing, were it not for the following detail:

Article 17 of the report says (with emphasis added):

17. Calls on the EU and its Member States to take concrete action on its resolution of 16 September 1997 on discrimination against women in advertising, which called for a ban on all forms of pornography in the media and on the advertising of sex tourism;

There's no definition of "the media", but it's hard to believe that the digital world would somehow be exempt. Of course, banning pornography in this way simply won't work, but it will cause huge collateral damage to freedom of speech online in the EU. As if that weren't bad enough, the way the report wants this put into effect is deeply problematic too:

the resolution we will be voting on next week has other things to say about the internet. Article 14 reads (again with my highlighting):

14. Points out that a policy to eliminate stereotypes in the media will of necessity involve action in the digital field; considers that this requires the launching of initiatives coordinated at EU level with a view to developing a genuine culture of equality on the internet; calls on the Commission to draw up in partnership with the parties concerned a charter to which all internet operators will be invited to adhere;

This is quite clearly yet another attempt to get the internet service providers to start policing what citizens do on the internet, not by legislation, but by "self-regulation". This is something we have seen before in a number of different proposals, and which is one of the big threats against information freedom in our society.

This is another example of "voluntary" measures that will in fact by compulsory, since any ISP that refuses to implement them will doubtless find itself responsible instead. As we've noted before, this allows all kinds of dangerous ideas to be implemented in ways that are not subject to judicial review or even challenge.

It's important to note that this is not a law as such, but a report, as Engström explains:

This means that it does not automatically become law even if it is adopted, but is just a way for the European parliament to express its opinion.

But the purpose of these own initiative reports are to serve as the basis for the Commission when it decides to present legislative proposals to the parliament. If this own initiative report is adopted by the parliament, it will strengthen the Commission's position if and when it wants to propose various"self-regulation" schemes in the future.

Equally, if the report is defeated next week, it will weaken later attempts by the Commission to bring in self-regulation. Recognising this, people like Rick Falkvinge have been asking Europeans to write to their representatives to urge them to reject the report, as Techdirt user rudeholm pointed out. But as Engström now reports, emails on these censorship plans are being blocked by the European Parliament's tech department:

around noon, these mails suddenly stopped arriving. When we started investigating why this happened so suddenly, we soon found out:

The IT department of the European Parliament is blocking the delivery of the emails on this issue, after some members of the parliament complained about getting emails from citizens.

This is exactly what happened with ACTA, when the Parliamentary authorities decided that all emails on the subject would go straight into the spam folder. It's extraordinary to see how quickly politicians forget that hundreds of thousands of people took to the streets to defend their online rights back then, and how unceremoniously dumping their emails in the spam folder only made things worse.

Discussions have been taking place on Twitter around the hashtag #mepblock (disclosure: I've been part of these), and an e-petition has been created, calling on European politicians to drop their censorship and to listen to their constituents as they are supposed to, instead of just ignoring them. There are still a few days before the vote next week, so there's plenty of time for further developments in what looks like becoming an increasingly heated debate.

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

It really is stunning how rarely it appears that politicians who introduce bills "for the children" think through the obvious consequences of those bills. For years, we've discussed how COPPA, the Children's Online Privacy Protection Act, has had massive unintended consequences, mainly cutting off lots of useful sites from any kids under the age of 13. It's also led to parents encouraging their kids to lie about their age, when they realize that all their friends are on sites like Facebook. Also, many people point out that COPPA is really an attack on kid's free speech rights. California has passed its own Online Privacy Protection Act that goes a bit further, but apparently, at least one California politician wants to take things even further, and is doing so with a plan that seems incredibly poorly thought out.

California Assemblywoman Nora Campos proposed a bill a few weeks ago, AB 319, that would expand things so much that any sites that collect any information about anyone under the age of 18 would be required under law to reveal that personal information to parents if requested.

Now, think about that for a second. Since this is for any kids up to 18, we're talking about most of the teenage years for most kids. These are the years in which many teens rebel against their parents, which is, in many ways, a natural part of growing up and becoming an independent adult. To think that parents should be able to find out information directly from various sites about their kids' use of those sites seems incredibly problematic. There may be sites where the teens have tried to keep information private from their parents. And maybe that's because, say, the parents are anti-gay, and the child is gay. Do we really want parents to have easy access to that material? Or... what if it's a site for abused kids, and they are signing up to get help and to report that abuse? Under this law, it would appear that parents can check up on their kids on those sites.

What this bill would mean is that, in California, minors can get an abortion without parental notification, but they can't use Facebook. Also, under California law, teenagers may be emancipated as of age 14. But their parents can still spy on their online activities?

Oh yeah, and the parents can order those sites to no longer allow their children to use the sites any more. For troubled kids, seeking to connect with others who can help them at the point when they're struggling the most with their parents, it would seem like a situation that could have disastrous consequences.

An operator shall provide to a parent whose minor dependent has provided personal information to an Internet Web site or online service, upon request of the parent and proper identification, a description of the specific types of personal information collected from the minor by the operator, the opportunity at any time to refuse to permit the operator’s further use or maintenance in retrievable form, or future online collection, of personal information from the minor, and a means that is reasonable under the circumstances for the parent to obtain personal information collected from the minor.

I'm sure Campos is thinking that this is one of those "protect the children" bills that makes for nice headlines. But shouldn't someone actually think about the actual impact of these bills before they get introduced?

A few weeks back, I wrote a piece about how Microsoft was changing the licensing terms for the retail versions of its Office product so that it would be a single install license. As I mentioned in that piece, this seemed like a pretty clear attempt to get retail customers to move to MIcrosoft's Office 365 line, requiring an ongoing subscription. Otherwise, retail customers would be beholden to their PCs, left to buy a new copy of Office should that machine no longer function (especially so if that machine wasn't under warranty). Customers, to put it mildly, were not impressed.

And it was that customer feedback that has apparently prompted Microsoft to revert the Office 2013 retail products back to the traditional, transferable licensing arrangement.

Based on customer feedback we have changed the Office 2013 retail license agreement to allow customers to transfer the software from one computer to another. This means customers can transfer Office 2013 to a different computer if their device fails or they get a new one. Previously, customers could only transfer their Office 2013 software to a new device if their PC failed under warranty.

While it's nice that Microsoft ended up listening to their customers, some folks are noting that these sneaky kinds of licensing attempts are nothing new for the company.

By the way, if all this seems familiar, it’s not your imagination. Microsoft tried a similar tactic with Windows Vista in October 2006. The original license agreement imposed a new limit of one transfer on retail copies of Windows. At the time, I called it “a sneaky change in Windows licensing terms.” After a similar outcry from Microsoft customers (a Microsoft executive acknowledged having received "lots of e-mail and other feedback" on this issue), Microsoft rolled back the changes and restored the original license terms less than a month later.

This trend should be a lesson to Microsoft, as well as other technology companies. If you want to get customers to adopt a certain product line you have, do it by making that product more valuable, rather than by reducing the value of a competing product.

Fresh off of explaining why the President can use drones to kill Americans on American soil, Attorney General Eric Holder apparently feels emboldened to say just about anything to justify ridiculous government actions. The latest? Defending the Aaron Swartz prosecution at a Congressional hearing called by Sen. John Cornyn, who has already expressed his concerns over the prosecution. As you might expect, Holder stuck with the official line that what the DOJ did in the Swartz case was perfectly reasonable. The key to his argument, as we've been hearing from others who defended the government's actions: the DOJ never intended to put Swartz in jail for 35 years. Also, apparently it was unfair of the media to use that 35 year number.

As I've talked to the people who have looked into this matter, these news reports about what he was actually facing is not consistent with what the interaction was between the government and Mr. Swartz. A plea offer was made to him of 3 months, before the indictment. This case could have been resolved with a plea of 3 months. After the indictment, an offer was made and he could plead and serve 4 months. Even after that, a plea offer was made, of a range of zero to 6 months, that he would be able to argue for a probationary sentence. The government would be able to argue for up to a period of 6 months. There was never any intention for him to go to jail for a period longer than 3, 4, potentially 5 month range.

These claims are not only misleading, but also total and complete bullshit. First off, if you never intended for him to spend more than 6 months in jail, and you're upset at the "media" for using the 35 year number... why is it that the DOJ's own press release on the arrest played up the 35 years:

AARON SWARTZ, 24, was charged in an indictment with wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer. If convicted on these charges, SWARTZ faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million.

I'm sorry, but you don't get to push that number around in your own damn press release and then whine and complain about how "unfair" it is that the media uses the number you gave them.

Separately, concerning the insistence that they never wanted him to spend more than 6 months in jail, they leave out the fact that this was only if Swartz agreed to plead guilty to multiple felonies. According to various reports, the DOJ, via Assistant US Attorney Steve Heymann made it clear that if Swartz did not agree to the plea, then he would seek somewhere around seven years in jail.

Cornyn goes on to ask about why the DOJ pursued the case even after the supposed "victim," JSTOR said it didn't want to have anything to do with the case. Cornyn specifically asks if it makes sense to threaten someone with 35 years in prison when the victim doesn't even seem to feel harmed by the situation. Holder than tries to spin this around and, incredibly, argue that the fact that they didn't pursue the full 35 years is an example of good prosecutorial discretion. Seriously.

Cornyn: The subscription service didn't support the prosecution. Does it strike you as odd that the government would indict someone for crimes that would carry penalties of up to 35 years in prison and million dollar fines and then offer him a 3 or 4 month prison sentence?

Holder: Well I think that's a good use of prosecutorial discretion. To look at the conduct, regardless of what the statutory maximums were, and to fashion a sentence that was consistent with what the nature of the conduct was. And I think what those prosecutors did in offering 3, 4, 0 to 6 was consistent with that conduct.

In other words, the only thing Holder is really saying here is that there was perfectly reasonable prosecutorial discretion if and only if Swartz agreed to a plea bargain in which he plead guilty to all felony charges against him. Basically, it's a "good use of prosecutorial discretion" to bully someone into pleading guilty to a crime they don't believe they've committed, and as long as they accept that, go to jail, and be okay with being labelled a felon for life, then there's no problem.

How do we let these people into positions of power?

We've had a number of stories concerning the hit TV show Game of Thrones and the issue of people downloading unauthorized copies of the show. Due to a variety of reasons mostly centered around HBO's cable relationships, HBO has not made the show available online, for the most part, unless you already have a cable TV subscription that includes HBO. The math here is a bit silly (due to the ridiculous nature of how pay TV works these days), but HBO more or less has done the math that says it's better off losing out on people who are willing to pay and who will inevitably infringe instead, by not pissing off the pay TV folks who pay them a much bigger lump sum. I think this is short sighted, because while the math works out today, the trend is in the wrong direction, and if HBO doesn't get in front of that trend, by the time the math "catches up," they could be in a lot of trouble.

Indeed, HBO seems irked that Game of Thrones is the most "pirated" show on TV. And while it has tested out a standalone version of its HBOGo online offering, the reviews have not been great.

However, it appears that HBO is trying to do something about all of this, admitting that they need to and intend to make the show more widely available online:

According to Jeff Cusson, HBO’s senior vice president of corporate affairs, “We think the key to combating piracy is to make content like Game of Thrones available worldwide within the smallest window possible…to 176 territories within the week of the U.S. premiere.”

Cusson said, “HBO is also rolling out HBO Go internationally,” which means many viewers in Europe, Latin America, and in other locations like Hong Kong can watch Game of Thrones at their leisure on their iPad/iPhone, Roku, Xbox 360s, their Android devices, and selected Samsung Smart HDTVs.

First off, it's great that they recognize that the key is making the show more widely available. That's a step up from blaming fans who want to see the show but can't. Of course, it's still ridiculous that HBO Go can't work on other TVs other than "selected Samsung" TVs. But... none of this seems to apply to the US.

When pressed on doing more in the US, Cusson begins answering by not answering.

When asked about the prevalence of piracy in America, Cusson said, “We utilized various tools to protect our copyright in 2012.” I countered that they didn’t work, because it was still the most downloaded show that year. Cusson responded, “We think the success of our business shows that our approach is relatively successful.”

Of course, at one level, he's absolutely right. There's no reason to "stop" piracy if it's not actually harming the show (and, in fact, may very well be helping it). But, at some point, HBO is going to need to realize that it has to make the jump to providing authorized access to Americans who don't have a traditional cable connection. And the longer they wait, the harder it becomes to get people to invest in HBO, because they'll get used to unauthorized alternatives.

You may recall that last fall, the New Zealand government admitted that its equivalent of the NSA, the Government Communications Security Bureau (GCSB) had illegally spied on Kim Dotcom for US law enforcement. Like the NSA (in theory), the GCSB is not allowed to spy on people domestically. But they did exactly that. Now the other shoe has dropped, as Kim Dotcom has been allowed to sue the government over illegal surveillance, for which Dotcom may receive compensation. The NZ government had tried to argue that it was "inappropriate," but a court has rejected that idea. This also means that Dotcom (and his lawyers) will be told what information was captured and who it was sent to -- though the actual documents won't be shown to him.