Although China is often glibly dismissed as little more than an imitator of others, yet another story about copying paradoxically shows it leading the way. That's because what's being cloned is an entire building complex that's still under construction:

The project being pirated is the Wangjing SOHO, a complex of three towers that resemble curved sails, sculpted in stone and etched with wave-like aluminum bands, that appear to swim across the surface of the Earth when viewed from the air.

Zhang Xin, the billionaire property developer who heads SOHO China and commissioned [the famous architect Zaha] Hadid to design the complex, lashed out against the pirates during the Galaxy opening: "Even as we build one of Zaha's projects, it is being replicated in Chongqing," a megacity near the eastern edge of the Tibetan plateau. At this point in time, she added, the pirates of Chongqing are building faster than SOHO. The original is set for completion in 2014.

As the article in Der Spiegel quoted above notes, this isn't the first time that buildings have been copied by Chinese architects:

Last year, citizens of the Austrian hillside hamlet of Hallstatt were shocked when they inadvertently discovered Chinese architects had surreptitiously and extensively photographed their homes and were building a doppelgänger version of the UNESCO World Heritage site in southern China.

But here, as with the latest case, it's hard to see what the problem is. Nobody is mistaking these pirated versions for the originals: the use of photographs in the case of Hallstatt, and "digital files or renderings" in the case of the Wangjing SOHO, means that the results will only be approximate copies, lacking many key details that make the originals artistically notable. If anything, their existence will encourage visitors to seek out the real thing to find out what inspired this massive effort. After all, if somebody goes to the trouble of constructing copies of entire buildings in this way, they must think pretty highly of the original.

What's significant here is that this building piracy can be seen as part of a new trend -- the rise of a high-speed cut-and-paste approach to urban design based around architectural mashups:

Dutch architect Rem Koolhaas, who designed Beijing's surreal, next-generation CCTV tower, has stated the super-speed expansion of Chinese cities is producing architects who use laptops to quickly cut and paste buildings into existence. Koolhaas, in the book "Mutations," calls these architects Photoshop designers: "Photoshop allows us to make collages of photographs -- (and) this is the essence of (China's) architectural and urban production…. Design today becomes as easy as Photoshop, even on the scale of a city."

Fortunately, the architect of the cloned Wangjing SOHO seems to agree:

Zaha Hadid said she has a philosophical stance on the replication of her designs: If future generations of these cloned buildings display innovative mutations, "that could be quite exciting."

Not only that: these pirate mutations will boost her already-considerable reputation in China yet further, and enrich her artistic legacy.

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

We've discussed the possibility of killing off the US penny before, as well as Canada's plans to actually put an end to its penny. Some folks really hate these small denomination coins, but really large denominations aren't too popular, either. Here are just a few links on some money that won't see circulation.

• The US Treasury is technically allowed to mint platinum coins of any denomination -- but at least one lawmaker wants to prevent the possibility of a trillion dollar coin. TL;DR -- does this bill prevent the minting of a half-trillion coin? [url]
• There's less than a month left for folks to hoard Canadian pennies because starting February 4th, the Royal Canadian mint will no longer distribute 1-cent coins. Only cash transactions will be affected, requiring people to round to the nearest nickel. [url]
• Hungary once produced currency with a denomination of 100 million billion Pengos. That's 100,000,000,000,000,000,000 Pengos -- worth about 20 cents in the US. [url]

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

In this era of mega ISPs and few small or independent options in many regions, it's always nice to learn of smaller ISPs who realize that competing on providing good service is a better strategy for attracting customers, instead of the game the big guys play: lock you into long term contracts knowing they're going to screw you over sooner or later and you'll have no real alternatives so you'll deal with it. I had that experience myself with both Comcast (who took my service down from 10am to 4pm every day for nearly a month, and each day I'd call and they'd say it was "scheduled maintenance" for that day only, and refused to tell me if any was scheduled for the next day) and AT&T (who signed me up for service, and then cancelled it without telling me because I was too far from the CO). Eventually I found Sonic.net, who has been wonderful, but they're a local ISP.

Over in Utah, an ISP called Direct Communications has announced that it no longer requires contracts and instead they want you to sign with them because, you know, they offer a better product:

Over the past couple of years, our non-customers in annual focus groups have told us that the thing holding them back was our contract terms. Many people did not want to sign long-term commitments various reasons—some did not feel secure in their employment and feared they might not be able to pay for service in a few months; many said they were looking to move out of Eagle Mountain sometime in the coming year; others said they just don’t like contracts as a matter of principle. We agree—people should stay with us because we offer the best, most reliable service in Eagle Mountain, and not because we have them locked into a contract. However, until recently, our hands were essentially tied because of NECA and FCC regulation.

As alluded to in that last line, they were limited by regulatory issues that just expired making this more difficult. While they actually did offer a no-contract option before, for regulatory reasons they had to require a massive installation fee in such cases:

Contrary to some reports, we actually have never required a contact for internet customers. New customers could always choose to forgo a contract term. However, very few people ever chose to sign up without a contract because we have always offered free installation with a 1-year commitment. We previously required a $185 broadband installation fee if new customers did not want to sign a 1-year commitment up front. This was largely dictated by FCC requirements for telecommunications and broadband companies like us. Recently, these regulations have changed to give us more leeway in deciding how to set contract and installation terms.

There will still be an install fee, but it's $75, which is much lower, obviously.

I have no idea how good the company's service is, but this is the kind of thing you start to see when there's real competition (and less regulatory interference). It would be nice if more such ISPs were able to exist around the country, but they're still pretty limited, unfortunately.

We already wrote a little about a French politician's support for the idea that Twitter should help the French government censor speech it doesn't like. I learned about it because of a post by Glenn Greenwald, which is absolutely worth reading. Greenwald's piece, though, focuses much of his anger not towards the French politician, but his colleague at The Guardian, Jason Farago, who wrote a column praising Najat Vallaud-Belkacem and her idea that free speech has somehow gone too far. Farago pulls out the typical arguments against free speech -- slapping the US for "fetishizing" free speech, and then arguing that in this digital age where the riff raff can speak, it shows that the First Amendment goes too far. I'm not joking:

If only this were still the 18th century! We can't delude ourselves any longer that free speech is the privilege of pure citizens in some perfect Enlightenment salon, where all sides of an argument are heard and the most noble view will naturally rise to the top. Speech now takes place in a digital mixing chamber, in which the most outrageous messages are instantly amplified, with sometimes violent effects.

This is, to put it mildly, both wrong and ridiculous in one shot. First off, it's arguing against a total strawman. No one has ever claimed that free speech leads to a "perfect Enlightenment salon." Quite the opposite. Defenders of free speech argue that you do get a lot of bad speech mixed in with the good -- and that said speech has consequences, sometimes significant. Yet, we recognize that cutting back on that right to free speech is so fraught with problems that it inevitably leads to bad outcomes, in which speech that actually is reasonable gets stifled. Greenwald's response to Farago is an absolute must read, but a few of my favorite quotes:

Nowhere in Farago's pro-censorship argument does he address, or even fleetingly consider, the possibility that the ideas that the state will forcibly suppress will be ideas that he likes, rather than ideas that he dislikes. People who want the state to punish the expression of certain ideas are so convinced of their core goodness, the unchallengeable rightness of their views, that they cannot even conceive that the ideas they like will, at some point, end up on the Prohibited List.

That's what always astounds and bothers me most about censorship advocates: their unbelievable hubris. There are all sorts of views I hold that I am absolutely convinced I am right about, and even many that I believe cannot be reasonably challenged.

Greenwald points out that supporting pro-censorship rules is more of a support for "mob rule" than Farago's conception of the rabble speaking out and lowest common denominator speech having too much power:

Ultimately, the only way to determine what is and is not "hate speech" is majority belief - in other words, mob rule. Right now, minister Vallaud-Belkacem and Farago are happy to criminalize "hate speech" because majorities - at least European ones - happen to agree with their views on gay people and women's equality. But just a couple decades ago, majorities believed exactly the opposite: that it was "hateful" and destructive to say positive things about homosexuality or women's equality. And it's certainly possible that, tomorrow, majorities will again believe this, or believe something equally bad or worse.

In other words, it's very possible that at some point in the future, majorities will come to hate rather than like the personal beliefs of minister Vallaud-Belkacem and Farago. And when that happens, when those majorities go to criminalize the views which minister Vallaud-Belkacem and Farago hold rather than condemn, they'll have no basis whatsoever for objecting, other than to say: "oh no, it's only fair to criminalize the ideas I hate, not the ones I like."

Greenwald then makes the claim that if we're defining "hate speech" we might want to start with "pro-censorship" arguments as being the ultimate in hate speech:

Personally, I regard the pro-censorship case - the call for the state to put people in cages for expressing prohibited ideas - as quite hateful. I genuinely consider pro-censorship arguments to be its own form of hate speech. In fact, if I were forced to vote on which ideas should go on the Prohibited List of Hateful Thoughts, I would put the desire for state censorship - the desire to imprison one's fellow citizens for expressing ideas one dislikes - at the top of that list.

Nothing has been more destructive or dangerous throughout history - nothing - than the power of the state to suppress and criminalize opinions it dislikes. I regard calls for suppression of ideas as far more menacing than - and at least just as hateful as - bigoted Twitter hashtags and online homophobic jokes.

There's a lot more in Greenwald's piece, which is absolutely worth reading. Farago makes a weak response in which he tries to argue that certain forms of speech are not about "ideas" but "violence" (as if violence isn't an idea) and therefore should be banned. For what it's worth, this both over- and under-estimates the power of speech. First it assumes that hateful speech automatically leads to negative actions -- as if hateful speech, by itself, automatically is so convincing that people are moved to action.

Yet, at the same time, it assumes, that contrary speech -- speech that rejects hateful notions and incitement to violence -- is somehow powerless to compete with the hate speech.

This doesn't make sense to me. It seems to put too much weight on hate speech. Yes, you can understand how speech that results in an emotional reaction -- in that you don't like it -- makes you think that everyone reacts emotionally to the comments, and those who agree with it might be galvanized into action -- but that's reading way too much into one's own emotions concerning the power of speech. If the power of simple speech can galvanize people into action, why can't it also calm the storm, educate the ignorant, and convince the world of the wrongness of bad ideas? How can someone believe that only hate speech has power, but speech pushing back against it is powerless?

Ah, Prenda Law. As you may recall, there's been an ongoing fight over some Prenda cases in California, with the key players being Prenda lawayer Brett Gibbs, lawyer for some John Doe defendants Morgan Pietz, and judge Otis Wright. Oh yeah, and the possibly mysterious Alan Cooper, who may or may not be Prenda mastermind John Steele's property caretaker. As you may recall, the caretaker Cooper had a lawyer file some documents in some Prenda cases involving shell companies AF Holdings and Ingenuity 13, suggesting that he was worried that Steele had faked his identity and claimed that Cooper was the CEO of those two companies, when they were really controlled by Steele.

While Cooper's claims were not made by him in the California cases, Pietz brought them up in those cases, leading to a series of hissy fits from Gibbs. At first he refused to answer a simple question about who Alan Cooper really is, and then when ordered to do so by Judge Wright, asked that Wright be removed from the case for bias. If you thought that was the end of things, you don't know Prenda Law, apparently. The latest filing from Gibbs takes legal childishness to altogether new levels, more or less trying to flip things around and claim that it's really Pietz who is making up people who he represents. I'm not joking.

Thus far, Attorney Morgan Pietz has submitted filings in approximately twenty cases in the Central District on the basis of the fact that he represents the putative John Doe in this case. However, Mr. Pietz has not offered a single shred of evidence to support this assertion. As it stands, Mr. Pietz could very well be intervening in all of these cases for his own ends, with no real client that he is defending. If Mr. Pietz wishes to contest the plain, unambiguous evidence of bias that Plaintiff has demonstrated in its Motion for Disqualification, then Mr. Pietz should have to submit evidence that he is, in fact, representing the actual individual he claims to represent, and not merely inserting himself into cases on the pretense of representing that individual.

Every time we see another story about Prenda law, it seems to involve someone associated with the firm doing something incredibly unprofessional and childish, in a manner suggesting they think they're a hell of a lot smarter than everyone else and are actually pulling something over on the world -- when the reality is that all of their moves seem ridiculously transparent.

As the Bradley Manning case moves towards finally taking place, there are still some pre-trial events going on, and in this week's hearings, what appears to be Manning's key defense strategy is being explained: and it's that he's a believer in open information being a clear, good thing. Specifically, the defense is suggesting that Manning was actually careful to make sure the documents he released to Wikileaks would not harm the US, but were specifically situations where he felt the documents had been over-classified. Many anti-Manning people will argue that it is not his position to decide what is and what is not properly classified, and that's true. But, it does matter in the case, because the key charge against Manning, "aiding the enemy," requires him to have known (or "should have known") that his actions would aid enemies of the US. But, his defense is attacking that head on, arguing the exact opposite. That, as a believer in the power of open information and being worried about over-classification, his motive was to share info that would no harm the US, but which it would benefit the US to have open.

Similarly, Manning's lawyers are making the point that the US government seems to be arguing that giving information to the media is the same thing as giving the info to Al Qaeda, which is preposterous. As they note, all such cases in the past have involved actually giving info directly to the enemy, and not to the public via the media.

The US, for its part, seems to be trying to do everything it can to prevent Manning from even being able to make this argument, arguing both that any discussion of over-classification should be barred from the case, and similarly that Manning's motives make no difference. Both of those claims seem fairly questionable, since the key part of aiding the enemy is understanding if Manning actually thought he was "aiding the enemy."

Update: The court has granted Bradley Manning 112 days sentencing credit for unlawful pre-trial punishment. According to the live blog of the trial, the judge also ruled that Manning's conditions did not count as solitary confinement, and that there was no evidence of command influence leading to unlawful conditions.

Remember Malibu Media? That's the copyright troll that has run into some trouble with some of its lawsuits lately and may be in for even more trouble. In November, we noted that they had very aggressively tried to argue that Verizon should shut up and hand over private info on subscribers after Verizon had pushed back on some subpoenas. It sounds like Malibu recently tried the same thing with Comcast... and Comcast has hit back hard. What's incredible is that the lawyers for Malibu Media are so clumsy or sloppy that they didn't even remove Verizon's name from the request. Comcast lawyers wasted little time in highlighting the many problems with Malibu Media's demands:

As a preliminary matter, there are several confusing elements in the Subpoenas that affect Comcast's approach to responding. First, the two 2088 Subpoenas instruct Comcast to designate the person(s) "who are the most knowledgeable about the subject matter categories set forth in Exhibit though there is no "Exhibit A" appended to either of the two Subpoenas that Comcast received in that case. There are, as identified elsewhere in those Subpoenas, "Schedules A and B" but no "Exhibit A." Moreover, the Schedule A attached to the Subpoenas does not set forth any subject matter categories, but rather identifies documents requested for production. Conversely, Schedule B sets forth subject matter categories. We accordingly assume that there is no "Exhibit A" and that the reference to Exhibit A (or Schedule A) with respect to subject matter categories should be "Schedule B" However, if there is an Exhibit A that happens to be left out, or this assumption is otherwise misplaced, please notify us immediately.

Second, the three Subpoenas' Schedules A and refer to "Verizon Internet Services" and to documents pertaining to Verizon (and, thus, not to Comcast). Of course, Comcast would not have any documents relating to Verizon or its Internet Services, nor could there be any person(s) at Comcast knowledgeable about such Verizon documents. We assume these references to Verizon were intended to identify Comcast, and respond below accordingly. But if that is incorrect, there would be no documents produced, and no deponent identified, for the separate reason that Comcast would not have any responsive material(s) or information related to Verizon records.

Of course, it's not just because of stupid mistakes by Malibu Media's lawyers that Comcast is standing up against the troll. Apparently the subpoenas are asking for a hell of a lot of info, including details about individuals' internet usage, which Comcast reasonably finds to be excessive.

More substantively, Comcast may not provide to any third party documents or information that include a subscriber's personally identifiable information without first ensuring compliance with the requirements of Section 631(c) of the Communications Act, 47 U.S.C. 551(c). That Section generally prohibits cable operators from disclosing such information without the subscriber's express written consent, and also imposes an affirmative obligation on a cable operator to "take such actions as are necessary to prevent unauthorized access to such information by a person other than the subscriber or cable operator." Id. 551(c)(1). Section 631(c)(2) provides three exceptions to the general ban on disclosing PII without the subscribers' express consent. Only one is applicable to your requests as you have not included any signed consents from the subscribers. Specifically, Section 631(c)(2)(B) states that disclosure is permitted "pursuant to a court order authorizing such disclosure, if the subscriber is notified of such order by the person to whom the order is directed."

We note that at a prior stage of this case you obtained a court order authorizing disclosure of PII for the individuals identified and named in Schedules A and to the Subpoenas. Indeed, the information gained in response to that earlier order allowed such identification of the subscribers in the present Subpoenas. But that court order only authorized disclosure of subscriber names and addresses, and MAC addresses. Schedules A and B to the present Subpoenas call for a great deal more than names and addresses; rather, they seek PII relating (among other things) to the DMCA record(s) for the identified subscribers, the identified subscribers' internet bandwidth usage, specific content watched or accessed by the subscribers, and bills and invoices relating to use of the service, which in turn would reveal the identified subscribers' viewing habits, service selections, costs paid, and other sensitive information. Moreover, some of the documents you seek also concern Comcast confidential and proprietary information on the operation of Comcast's network, and other document requests refer to subscriber service usage that Comcast does not track or monitor.

The letter goes on to note additional problems with Malibu Media's demands that someone from Comcast show up in court. It amazes me how some of these copyright trolls act at times, and their assumptions that big companies like Verizon and Comcast don't have lawyers.

The results are in for Australia's request for comments on reforming copyright policy -- and the submissions are, unfortunately, unsurprising. (The entire "Copyright and The Digital Economy" questionnaire is embedded below.) The legacy industries like things the way they are, (except for file sharing) and are only requesting changes that would lead to more licensing opportunities and greater fees.

As far as orphan works are concerned, nearly every entrenched publisher believes that they should get to control how these works are sold.

Walker Books Australia [RTF]

Our preference would be for the creation of a collective licensing scheme for such works, along the lines of the Canadian system. There the Copyright Board has the right to issue a non-exclusive licence for the use of orphan works after reasonable efforts have been made to find the rights holder. Fees are then distributed among members after a certain number of years. Whatever model is chosen, it should be based on authorisation by a formal collective licensing body rather than taking the form of an exception. Also, importantly, there should be no assumption or requirement that moral rights have been waived.

Basically, publishers would like to have "non-exclusive" licenses granted to publish orphan works, but only after a "reasonable effort" has been made to locate the rights holders. After an arbitrary amount of time, these fees will be redistributed to participating parties.

Non-participating parties would be guilty of copyright infringement if they released these works on their own or secured copies, presumably. Again, the public will not be allowed to benefit from these works, but instead, must go through the usual gatekeepers to acquire copies. Despite these being "non-exclusive" licenses, it appears that only participating publishers will be allowed to profit from these works. No clarification is given in terms of what happens to these works once the arbitrary waiting period is over and the monies redistributed. Public domain? Back to the "orphan works" pile to be re-exploited for another X number of years?

Additional exceptions for private, domestic or non-commercial use are off the table as well. The argument seems to be that even though people are sharing content in a non-commercial context, the sharing takes place on commercial services like Youtube or Facebook. This is viewed as another opportunity for licensing, hopefully paid for by the deep pockets of corporations rather than by individuals. What's ignored is that when a person shares a song, photo or video with someone else, they're doing it without any desire for personal financial gain or to harm the creators. But maximalists tend to find something innately wrong with these situations. Here's Walker's take on non-commercial sharing.

We are seeing a lot of examples of Books being taken and read/shown on YouTube – they are therefore being shown in a public and not a private forum and so being shared without consent...

Where does one begin and the other end? Someone's "private" reading on YouTube for instance, although non-commercial, could undermine the legitimate marketing activity of the author or publisher – or certainly deminishes [sic] its impact.

First off, I find it hard to believe that someone would consider watching a video of someone reading an acceptable substitution for purchasing a book. Second, what are you doing about it other than complaining? Have you uploaded your own readings? Maybe one from the author? Have you claimed the video for monetization? Unless you're making a few moves of your own, it's a bit disingenuous to complain about someone doing your marketing for you.

Yes, Youtube is a commercial entity but as an aggregate. Individual users are generally not uploading their own readings as part of a business plan. It's usually because they're a fan of the book and they're sharing stuff they like with others. This is a good thing.

The performance rights organizations have also sent in a response, one filled with misrepresentations and and the sort of entitlement that has served it well for so many years. It starts on the wrong foot and gets worse.

APRA|AMCOS [PDF]

APRA|AMCOS are concerned that references to the "constant debate" about whether copyright law acts as an incentive to production of new material are a distraction from what should be the focus of this Inquiry...

Yes. Let's not talk about how expanded copyright law that fails to meet the needs of the digital age might be stifling production of new material, BECAUSE THAT'S WHAT PROMPTED THIS ENTIRE PROCESS. Let's just ignore the debate and keep things the way they've been since 1968 because nearly a half-century down the road nothing has changed except everything.

Copyright encourages creativity. Exceptions should only be enacted where there is an overriding social benefit that justifies a limitation on the property rights of the copyright owner. Anecdotes about how creators are not motivated by economic considerations have been used to suggest that creators are economically irrational and therefore should not participate in markets for their works. This is wrong. Copyright is a grant of property rights that enables authors to commercialise their products and maintain the integrity of their creative output.

This is a willful misrepresentation of the views of those who question the incentive value of copyright. No one has stated that just because some creators create without financial incentive that no creators should seek to make money, or even enjoy the protections of copyright. What is actually stated is that many artists were successful before the days of expanded copyright protection, and despite it, which would indicate that copyright protection isn't nearly as crucial as the copyright industries paint it.

APRA|AMCOS on Mashups (Transformative Use)

Australia has a sophisticated licensing regime that permits a large number of new businesses to operate using copyright material. To the extent that not all such businesses survive, there is no evidence that this is related to anything other than the operation of normal competitive market forces.

Except when it's your business that is threatened and may not survive. Then it's time for legislators to step in and "save some jobs" or whatever angle gets the playing field "leveled" fastest.

APRA|AMCOS on adopting US-style "fair use" laws and statutory rights

[I]t is clear that copyright owners in Australia cannot act as potently to prevent online infringements as can copyright owners in the US, whether against the infringing customer or the infringing internet service provider.

Infringing service provider? There's an unlikely term. If you're thinking of getting your hands on US-style statutory rights, you might want to keep in mind that ISPs are not responsible for the actions of their customers, unlike in Australia. Infringing customer? The hell does that mean? What it sounds like is that even paying customers are shortchanging rights holders somehow, but in reality, it's just APRA|AMCOS trying to tie the ISP to its infringing subscribers. In other words, APRA/AMCOS wants the power to litigate against both ISPs and individuals, but will cede nothing to fair use or any other US-style policies that benefit the public at large. Or in pirate parlance, "Take all ye can. Give nothing back."

So far, so much of the same worn-out arguments for greater enforcement, more licensing and less of anything that favor the general public. The biggest backlash seems to be saved for any discussion of moving Australia's fair dealing laws in the direction of America's fair use laws.

International Publisher's Assoc. [PDF]

If the aim is indeed to avoid or abolish barriers to innovation, then the introduction of "fair use" provisions would be a highly unusual path to take, a path that has been adopted by only four countries worldwide, but rejected by many. The introduction of a fair use doctrine would:

• create legal uncertainty and hence an atmosphere hostile to creative innovation and freedom of speech;
• violate Australia's obligations under international copyright treaties, in particular the "three step test" of the Berne Convention, WCT and TRIPS;
• require the introduction or importation of an entire body of legal precedents, adjudications and case law into Australian jurisdiction, the introduction and interpretation of which would carry with it unpredictable legal risks.

A "fair use" doctrine works (more or less) well in a US context because of its roots in more than 150 years of case law, and significant - 35 years - experience with interpreting its codified version. It is exactly this long history that alleviates (but not silences) concerns regarding legal certainty, freedom of speech and violation of international treaty, but many commentators remain concerned also with regard to the US context.

This is one of the most ridiculous arguments against fair use I've ever read. (And I've read it twice: the MPAA used the same argument in its submission) Sure, fair use may create "legal uncertainty," but that's only because so many rights holders are convinced that there should be no unlicensed use of their creations... ever. It's this hardline approach that creates "legal uncertainty" -- not the fair use itself.

As for fair use being "hostile" to free speech and innovation -- well, that's just completely wrong. Copyright has been abused to stifle criticism multiple times, often as a "Plan B" when it appears that proving defamation or libel might be tricky (or impossible). Fair use increases free speech, not the other way around.

And I'd really like to see the International Publishers Association prove that fair use harms innovation. The MPAA's own "respect our authority" response to the call for submissions states that it relies on fair use as part of its creative process. (Mere sentences later, though, it warns Australia that fair use isn't for them, so don't even think about adopting it.) Greater IP protection is what's actually harming innovation as it exposes new entries into the market to increased legal action. One needs to look no further than the debacle d/b/a/ the patent system for evidence of stifled innovation.

The final argument dealing with the US fair use system and its "built in" history is a non-starter. While importing case law and precedent would bring "unpredictable risks," expanding the current "fair dealing" to closer match fair use laws would be a good start. At some point, every country has to create its own precedent, something that's impossible to do if everyone keeps worrying that a new law won't appear fully formed with years of precedence behind it. This argument pops up in the MPAA's paper as well. Apparently, Australia is just supposed to cede to the logical fallacy built into the ourobouros-esque reasoning that "fair use works in the US because of years of precedence but won't work anywhere else because no precedent has been set." You can't set precedence if you're unwilling to institute fair use and, you know, start setting some precedent of your own.

APRA|AMCOS on Fair Use

The uncertainty engendered by an open fair use exception is likely, as in the US, to give rise to considerable litigation that would defeat the purpose of adopting such an exception. It is likely that fair use would be raised as a defence to many allegations of copyright infringement, adding significantly to costs of legal advice and to the costs of litigation.

Once again, copyright apparently should only work as a deterrent, rather than an inspiration. The power to censor through copyright must remain intact. Because piracy. (Or something.)

It all seems to boil down to "We like what we have right now, but some more would be even better." The protections granted during the analog era hardly match up with the digital reality, but somehow these copyright-reliant industries believe the future belongs to the past. No concessions are made to current reality. If any changes are made, they want to make damn sure they're the only beneficiaries.

It's not all bad news from the normal players, though. A few more reasonable responses made their way into the submission pile. A group of literary agents makes a couple of good points.

Australian Literary Agents Assoc. [RTF]

Currently only moral rights are an absolute rights. More rights must be made absolute, for example statutory rights. Some organizations demand these rights be taken away from the creator. Many organizations are bullish contractually with creators in regard to statutory rights. Accordingly a lot of money goes to international corporations instead of Australian creators.

Most people want to do the right thing and compensate the creators of copyright for the use of their work in other forms - give people the means to do this. Make it easy for them to pay the copyright owners, no matter how small the payment is.

And a submission by Richard A. Marschall of Marschall Acoustic Instruments [RTF] completely flips the script, going full on towards the sort of copyright minimalism we proudly espouse here at the 'dirt.

I don't think the digital environment really has changed anything. What has changed over time is that copyright law here has been following that of the USA which serves some big media company interests but acts against artists and smaller media companies...

If the taxpayer paid for the creation of the content then it should be free to use by all. The system of the public pays and pays and pays ... does much to diminish respect for the law...

Brief quotes for purposes of comment, analysis, or parody should be allowed. The USA used to have something called "fair use doctrine", it is time to revive it. Also, the length of copyright, especially for music and recordings, and perhaps even films, needs to be shortened to something like 10 or 15 years. History should not be copyrighted...

Libraries and universities should be able to copy everything that they bought a copy of. They should not have to keep on paying and paying and paying when the media wears out...

His whole response text is worth reading, but sadly, one of the few to go against the prevailing winds of maximalism. Australia's attempt to update its copyright laws faces an uphill battle against those who like it the way it is, or even better, the way it was. Nearly fifty years down the road from the last update of its copyright laws and a majority of the respondents prefer stasis to moving ahead.
 

 

Senator Joe Lieberman may finally be out of the Senate, but his "legacy" lives on. Over the years, we've noted that he's regularly sought to censor technology that terrorists use, on the ridiculous theory that censorship somehow makes the terrorists disappear. One of his campaigns, way back in 2008, was to force YouTube to magically censor videos from terrorists. After putting a lot of public pressure on YouTube, the company caved. And... as a result of that, it recently shut down the video channel of an important Syrian watchdog organization which had been posting video evidence of atrocities occurring in that country. YouTube has apologized and reinstated the channel, but this is what happens when you encourage censorship. It is impossible not to have it lead to censoring important speech.

YouTube sent the Observatory an email on Sunday that said its channels "syrianhro" and "almrsd" had "violated the policy of the site by publishing shocking and offensive videos," the Britain-based watchdog said.

The Observatory, which disseminates graphic videos on YouTube of atrocities from the bloody civil war the UN says has killed more than 60,000 people, condemned the closure.

"This is the second time in two months that the site administration has closed the Syrian Observatory for Human Rights channel," it said in a statement, in reference specifically to almrsd.

Of course, if we're to take Lieberman's theory to its logical conclusion, so long as no one can see the atrocities in Syria, we can all pretend they haven't happened, right?

You may recall that, back in 2009, a bunch of the major labels filed a copyright infringement lawsuit against online video site Vimeo, paying particular attention to the fact that the site had popularized "lipdubs" in large part due to this quite popular lipdub by Vimeo's own staff of the song Flagpole Sitta by Harvey Danger.

Lip Dub - Flagpole Sitta by Harvey Danger from amandalynferri on Vimeo.

While EMI insisted that that particular video and others like it were doing incalculable harm to itself and the musicians it represented, the lead singer from Harvey Danger actually noted that the video made him "incredibly happy" as it helped increase the popularity of the song.

Either way, that lawsuit sat on the shelf for a while, as the judge suggested that it ought to await the outcome of the somewhat similar Viacom/YouTube lawsuit. After that lawsuit got sent back to the district court by the appeals court, the major labels are apparently getting restless and have sought to revive the case against Vimeo, by seeking a summary judgment in their favor.

The case is a bit more complex than the YouTube case, which may spell trouble for Vimeo (and owners IAC), but that doesn't mean that the labels are staying away from a whole bunch of absolutely preposterous arguments. The best thing that the labels have going for them in their argument is the fact that Vimeo employees posted videos that had infringing content. The DMCA safe harbors protect a website from user behavior, but not their own. So, legally, their argument seems a bit stronger on that front, but culturally, it still seems like a dumb argument, as highlighted by the singer's comments above. Most people don't think lipdubs should be illegal, because that seems silly. Lipdubs are about people celebrating and promoting the music they love in creative ways.

Really, that's the crux of this lawsuit. While Vimeo may be in legal trouble, it really highlights the basic cultural divide at issue here. People who put together lipdubs spent a ton of time and effort to creatively enhance the music they love and share it with the world in a cool manner, which does not replace the music, but tends to advertise it. For those unfamiliar with the basics of copyright, saying lipdubs are illegal just feels wrong, even if there may be some legal backing to it.

Making things perhaps somewhat trickier for Vimeo is the fact that it does somewhat aggressively monitor the content on its site for other issues, and doesn't allow a variety of other types of videos. The labels use this to imply that it is actively ignoring music copyright while blocking all sorts of other content:

Except for music, Vimeo strictly controls, monitors, and curates (in its words) the audiovisual works it copies, performs, and distributes. It prohibits – and uses its personnel and tools to review, monitor, and delete – all sorts of videos, including television programs, movies, and movie trailers, as well as “gameplay videos,” “commercial” videos (such as product promotions or real estate tours), “sexually explicit” videos, and “fan vids,” among others.... It enforces its discretionary and subjective guidelines to eliminate content that is not “Vimeoesque.”... All in order to mold its website and control its image.... Despite its pervasive involvement in and control of the content on its website, Vimeo does nothing to limit the infringing use of music on its website.

That may sound damning, but it's not as strong as it sounds. Determining whether or not a video includes infringing music is not as simple as the paragraph makes it sound. Vimeo has no way of knowing whether or not the video maker properly licensed the song in question in most cases. The other things it monitors for are much easier for it to determine. This is a major issue that supporters of copyright law often ignore.

The labels' attack on lipdubs is really kind of ridiculous when you think about it:

One of the early “creations” by Vimeo’s founder was a video format in which he “lip synched” to a commercial, copyrighted recording, synchronized the recording into the video during editing, and uploaded the video, making it available to every Vimeo user.... He named this “a lip dub,” and it was promoted as the “signature” Vimeo video genre, something that “put us [Vimeo] on the map.” .... As Vimeo and its users know, these popular lip dub videos, by definition, copy and incorporate copyrighted music without consent or license. ... (If Vimeo “suddenly started to ban videos with copyrighted music, like lipdubs, then I would be pissed but I would have to realize it’s their final decision.”) That also is apparent from Vimeo’s instructions on its home page on how to create lip dubs.... (“Like a music video. Shoot yourself mouthing along to a song then synch it with a high quality copy of the song in an editing program.”).

Lip dubs were heavily promoted. Vimeo provided a “Lip Dub Stars” channel, labeling it a channel “we like” and securing commercial sponsorship for it.... Lip dubs were featured as a “Vimeo Obsession” on Vimeo’s home page.... “Lip dub” became one of the top seven key words that drew visitors to Vimeo ..., and appeared (in several variants) in an internal chart of top “searches per day” on the Vimeo Website

Of course, one could make an argument that many lipdubs could be considered fair use, as being transformative. But, the labels assume that, by default, they all must be infringing.

Furthermore, among the more dubious arguments made by the labels is claiming that Vimeo's decision to not use a tool to filter out copyright infringement is the equivalent of "willful blindness." This is wrong. The law does not say that sites need to make use of filters and other tools to find possibly infringing works -- in part because a tool cannot properly assess if a work is infringing. They also make the argument that because Vimeo put "lip dub" in meta tags it's proof that they were promoting infringement. That seems very weak for a number of reasons, not the least of which is that search engines haven't used meta tags in ages. Also, the labels argue that because Vimeo offered licensable songs for sale to videomakers it knew that it was committing and encouraging infringement. This seems particularly bizarre. It's attacking Vimeo for actually doing the right thing and helping its users license music. But, just because they do that, it doesn't give them direct knowledge of whether or not users licensed music elsewhere. Oh yeah, the labels also -- ridiculously -- claim that pre-1972 songs are not subject to the DMCA, despite multiple courts rejecting this argument.

All that said, it still seems likely that Vimeo may have an uphill battle here. The fact that employees uploaded infringing works is going to make the case difficult, even if there are reasonable arguments for why they did it. The filing also has a bunch of quotes suggesting general awareness of infringement on the site, but "general" awareness is not enough to lose DMCA safe harbors. You need to be aware of specific infringement, and it's not entirely clear that that's true. There's one example of someone saying they weren't sure if something was licensed and offering to make a copy without music just to be safe, but that's not the same as knowing that the effort is definitely infringing. The other part that might come back to bite Vimeo is the lack of having a "repeat offender" policy for its DMCA takedowns. This is something that has tripped up others as well. The law requires such a policy, but it's unclear if Vimeo actually had one until about the time it was sued.

Still, it really does seem like this is yet another example of the labels fighting against how people enjoy culture today -- and how they help spread it. It's really shameful to see them on the attack, rather than figuring out ways to support it.

It's almost as if the major labels aren't even trying to hide how they like to abuse the spirit of copyright law in order to keep things locked up as long as possible. Sony Music recently "issued" (and I use the term loosely) a special limited release Bob Dylan collection and didn't even bother to try to hide the real reason for putting it out. It's in the name of the damn release: "Bob Dylan: The Copyright Extension Collection Vol. 1." Yes, the entire purpose of releasing this is so that Sony Music can keep Bob Dylan songs under copyright in Europe for a longer period of time. As they're all too happy to explain, copyright term extension for recordings happened in Europe recently, bumping it up from 50 years to 70 years -- but there's a "use it or lose it" clause in there:

Two spokesmen for Sony confirmed that the set was legitimate, its bootleglike appearance notwithstanding. They explained that the point of the release was to keep the recordings under copyright protection in Europe, where the laws are in flux. Currently, recordings can be copyrighted in Europe for 50 years, a much shorter term than in the United States, where recordings made since 1978 will remain copyrighted until 70 years after the death of the last surviving author.

In 2011 the European Union revised its copyright laws to extend copyright to 70 years. The change is not yet in effect but will be by 2014. And there’s a catch, a “use it or lose it” provision: recordings cannot benefit from the 20-year extension unless they were published before the 50-year term expired. The recordings on “The 50th Anniversary Collection” were about to fall over that legal precipice.

Of course, since this is all about protectionism rather than actually getting people to hear the music, this collection is somewhat difficult to find (well, unless you go to unauthorized sources for digital downloads -- not that we recommend such things). That's because they only made 100 copies of them and gave them to a few stores in key European countries.

Only about 100 copies of the four-CD set were produced, with sparse packaging and an insert listing the details of the set’s 86 tracks, all previously unreleased studio outtakes and live recordings from 1962 and 1963.

It also comes as a downloadable version, available through the singers’s Web site, bobdylan.com, but only to fans who log on from France or Germany. (Prices for the CD set vary from country to country, from the equivalent of $39 to, in Britain, $138)

American collectors are locked out, although for those desperate to have an original CD set, several have made their way to eBay, where bids have gone as high as about $1,450.

Anyway, I'm sure all of this activity is creating incentive for Bob Dylan to make more music from 1962.

The government's war on online gambling is really ridiculous in a variety of ways. Initially, it was driven by a weird mix of moralist groups, backed by offline casinos who didn't want the competition -- all leading to a bill that effectively (through convoluted means) banned online gambling as a part of a law to protect our ports. The casinos are now regretting their initial support for this law, because they want to get into the online gambling world themselves. But the law is in place, and US (both federal and state) law enforcement has supported it and related laws with ridiculous fervor; arresting execs of off-shore gambling sites and even execs of financial institutions that provide payment systems for online gambling sites. As with the over-aggressive enforcement of copyright law, the Justice Department has also seized many websites, sometimes even seizing the wrong websites.

However, this latest story shows just how ridiculous some of these efforts are, and just how far they can go in creating chilling effects. It's the story of the arrest and criminal charges against Robert Stuart, his wife and his brother-in-law for the work they did for their company, Extension Software. The company provides infrastructure to companies that do sports bookmaking, but they were careful to only license the software to companies in countries where such things are legal.

For their troubles they got "the full Kim Dotcom treatment" according to a writeup in Wired:

The case began in February 2011, when Stuart says he and his wife got the Kim Dotcom treatment after about 30 local Arizona law enforcement agents wearing SWAT gear and camouflage dress — some of them with bushes attached to their shoulders to blend into the woods around his house — descended on his home and threatened to send him and his wife to prison for 35 years if he didn’t cooperate.

The search warrant used in the raid said Stuart and his wife were engaged in money laundering, operating an illegal enterprise and engaging in the promotion of gambling. Stuart has tried to obtain a copy of the affidavit used to get the search warrant, but it’s currently sealed.

Yup. They sent in a SWAT team to deal with... a software developer. Because some companies who use his software might possibly have used it to allow gambling in New York (the state that's behind the charges against him). And the warrant itself is sealed, so he doesn't even know why. Then the story gets even worse. In typical law enforcement fashion, they pressured him into doing a plea deal, in which he would have been forced to install backdoor code into his software, and then hack into his own customers to retrieve information on their users any time law enforcement wanted it. He initially agreed to the plea bargain based on bad advice from what he calls "rent-a-lawyers" he found on the internet. However, before it could go before a judge, he wisely backed out.

The NY's DA has defended this effort claiming that it was all perfectly aboveboard and legal to send a SWAT team to threaten a software developer into hacking into his own customers' data for the sake of law enforcement:

Although Daniel R. Alonso, chief assistant in the Manhattan District Attorney’s Office, was reluctant to discuss the terms of the confidential plea agreement or how his office planned to implement them, he insisted there was nothing unlawful about what was proposed.

“The provision you have questioned is perfectly consistent with the obligations of all law enforcement officials to follow state and federal law to secure evidence of criminal conduct,” Alonso said in an e-mail statement. “The staff of the Manhattan District Attorney’s office involved in this case, both prosecutors and investigators, have behaved ethically and consistent with their obligation to seek justice in every case.”

Eighteen months went by... and then last fall he was criminally indicted -- though all of the original charges used in his initial threat had disappeared (because they were bogus) and all the NY DA could come up with was a single charge of "promoting gambling in the first degree." Yes, because he supplies software in places where it's completely legal.

If you think secondary liability issues are important (and I do!), this case should be a major concern. The guy here just developed some useful software and sold it where it was legal to do so. That should not lead to a SWAT team descending on your house, or facing criminal charges and possible jail time. Blame the users of the software if they broke the law, but nothing that these guys did involved "promoting gambling" in areas where it was illegal. It was about providing legal infrastructure (not promotional) software. The whole thing is a shame, and shows how law enforcement's aggressiveness in trying to show themselves as being "tough on crime" can have serious implications.

Stuart notes that he's lost a bunch of his customers since the indictment, which may destroy his business entirely. And this can only lead to greater concern for other software developers as well. If they license software for completely legal purposes, but the software is then used in commission of a crime, are they suddenly (1) going to be threatened at gunpoint to hack into their customers' accounts and (2) then charged on trumped up charges as well?

Normally, if someone were to offer you a FREE iPad or the like unsolicited via the interweb, you'd either be a) reasonably suspicious or b) consulting various anti-malware forums in hopes of regaining control of your computer/Facebook account/credit history. But what if that offer were to come from a more respectable source -- say, an official police Twitter account? If you answered "b" then you're probably taking stock of your life and wondering if leading a life of crime is really for you.

Police in Leicester did exactly that, tweeting out this tantalizing offer to the public a few days ago.

Not a scam: If you've committed a burglary in the #Leicester area within the last week - come to our #police station & claim a FREE iPad.

— Leicester Police (@CityCentreLPU) January 6, 2013

"Not a scam: If you've committed a burglary in the #Leicester area within the last week - come to our #police station & claim a FREE iPad."

While it's doubtful this police department snagged any criminals with this playful tweet (although I'm holding out hope that it will), it did manage to catch that attention of another police department, who accused the Leicester police of tweet theft.

.@citycentrelpu – we need to talk to you about a tweet theft earlier today, “You do not have to say anything, but it may harm your....

— Solihull Police (@SolihullPolice) January 6, 2013

.@CityCentreLPU – we need to talk to you about a tweet theft earlier today, “You do not have to say anything, but it may harm your....

The Solihull Police had apparently made the same offer to gullible criminals earlier that day, but had only received 18 retweets as compared to the 4,000 received by Leicester's purloined tweet. An apology was extended and both police departments went back to work, providing a mixture of the useful and the comical, with Solihull PD helping reunite lost cannabis with its owner and the Leicester Police performing field sobriety tests via Twitter.

I know we tend to focus on the negative side of the law enforcement community so it's nice to see little exchanges like this coming from official channels. It goes a long way towards humanizing these two departments, keeping these accounts from turning into faceless department bullhorns dispensing nothing but blotter activity and talking points.

As we know, the Internet works by breaking digital information up into IP packets which are then routed independently over the network, and then re-assembled at their destination. Anything made up of 0s and 1s can be sent anywhere with an Internet connection in this way, but that isn't much good for physical objects.

It's true that we are fast approaching the day when we will be able to use a 3D scanner to send a digital file representing an object across the Internet so that it can then be printed at the destination. But that only works for simple, fungible items like cups or replacement parts, and is useless if you want to deliver a particular, personal item rather than just a generic copy.

To do that, we need an Internet of drones:

A short distance drone delivery service built on an open protocol. Think short haul logistics.

It's a system that will explode in a way that is very similar to the way the Internet grew up -- where connections were bought by individuals and installed one modem and IP address at a time, and where the early providers are local geeks with shelves full of modems and an expensive T-1 lines.

It's an approach that uses "uncontrolled airspace" and incremental purchases of cheap, standards compliant pads/drones to roll itself out (very similar to the way the Internet was able to piggy back on the old telephone system).

As a result of this open approach and decentralization, it's something that could grow VERY fast.

If you're still unsure how this would work in practice, the post by John Robb quoted above goes on to spell out the details for a simple example. The bottom line for returning a forgotten smartphone to its owner 30 miles away:

Costs? Probably less than $0.25 per 10 mi. or so. So, about $0.75 in this instance. Time? An hour or so.

Of course, this is just a generalization of an idea we discussed back in March of last year, the so-called "TacoCopter", but taken to the next level, modelled on the Internet's IP packets. As we pointed out then, it's a great idea with lots of practical problems, mostly regulatory ones. Arguably the far greater potential of the Internet of drones concept makes the argument for loosening up those restrictions to permit innovation in this area even more compelling.

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