All week I've been checking the docket on the Prenda case where the showdown is supposed to be happening on Monday, fulling expecting to see John Steele, Paul Duffy, Paul Hansmeier and others desperately trying to get out of appearing, and it's finally showed up -- but not via their own filing, but rather opposing attorney Morgan Pietz who received the documents before the court did, and is opposing them, in part by arguing that Team Prenda stalled in filing these documents. Team Prenda try a variety of arguments, first noting that they have nothing (nothing, I tell you!) to do with the case, and they point out that Brett Gibbs and the lawyers he hired are the lawyers on the case. They're even so bold to claim that they have "no dog in this fight."

Even where the court seeks to adjudicate issues between parties, it must have personal jurisdiction over them. Here, Steele, Hansmeier, Duffy, and Van Den Hemel are not parties and have not otherwise participated in this litigation. As such, the public policy behind the need to determine personal jurisdiction is arguably at an elevated level because, as individuals, they effectively have "no dog in this fight."

As if anyone believes that.

Then they claim lack of jurisdiction by the court:

On March 5, 2013, this court issued an order that eight individuals would have to appear before this court on March 11, 2013. But this court lacks jurisdiction to order those individuals to appear in that they reside outside California, are not parties to this litigation, have not appeared in this action, and do not represent parties to this action.

Moreover, although some of these individuals may have received notice as the court ordered, others did not because those charged with providing notice simply lacked the information necessary to do so. And, even those that were served have not received reasonable notice of the nature of the proceedings they are being ordered to appear in or what is expected of them besides their physical presence.

Further, they have not received a reasonable amount of notice to accommodate cross-country travel or information regarding who will pay for such travel. Based on these factors, the court should withdraw its order for John Steele, Paul Hansmeier, Paul Duffy, and Angela Van Den Hemel to appear on Monday, March 11, 2013 at 1:30 P.M.

On top of that, they argue that they "can be nothing more than witnesses."

Here, because they are not parties in this action, Steele, Hansmeier, Duffy, and Van Den Hemel can be nothing more than witnesses. California Code of Civil Procedure section 1989 provides that "a witness . . . is not obliged to attend as a witness before any court, judge, justice or any other officer, unless the witness Is a resident within the state at the time of service." None of these individuals named in the court's March 5, 2013 reside in California... Thus, the court lacks jurisdiction to order them to appear.

Furthermore, they claim that even thought it seems quite likely that they heard about this order immediately after it came out on March 5th, that they didn't actually find out about it until yesterday, March 7th, which (they claim) is not enough notice.

Although counsel submitting this application has been unable to identify any authority addressing the notice requirements to witnesses ordered to appear at such hearings, logic dictates that such individuals should at least be similarly accommodated with reasonable notice. Here, the court's March 5, 2013 order that notice be provided by March 7, 2013 to attend a March 11, 2013 hearing with no further information is fundamentally unreasonable.

Oh yes, and they also say that they need to be paid to show up:

Finally, witnesses are entitled not only to receive payment for their attendance, but also for travel expenses.... But, the court's order not only fails to provide who will compensate Steele, Hansmeier, Duffy, and Van Den Hemel for their time and these expenses, but that they will be compensated at all. Given the considerable expense of traveling such distances (including consideration of the fact that one of the witnesses likely has limited means given her employment as a paralegal), especially on such short notice when many common carriers may not have seats available, this is a significant issue.

As is typical for Prenda, throwing any excuse at the wall to see what sticks.

Morgan Pietz has already filed a response noting the claims of the court not having jurisdiction are basically bullshit, since all of these guys have been involved in this and other Prenda cases in California. He lists out each and every person and notes their connection to California or this case in particular. I won't post them all, but here's the entry on Steele:

John Steele has frequently sent demand letters into the State of California, seeking to pressure Internet users into settling copyright infringement claims. An example of only one such letter (undersigned counsel knows there are many more) accompanies this opposition as Exhibit 1 to the Declaration of Nicholas Ranallo. Further, Mr. Steele has not been shy about conducting media interviews, with California publications, about his California cases. See http://www.sfgate.com/business/article/Lawsuit-says-grandma-illegallydownloaded-porn-2354720.php. Accordingly, both general and specific jurisdiction exists over John Steele.

For Paul Hansmeier, they note he already traveled to California for that deposition. Paul Duffy is a member of the California Barr, and has taken over some Prenda cases in California for Brett Gibbs. Oh yeah, and the paralegal Angela Van Den Hemel is accused of violating the court's discovery order in this very case, so the jurisdiction over her is even clearer.

Pietz also claims that the short timeframe argument is bogus too, and suggests that Prenda chose to file this attempt to get out manually in an attempt to delay the whole thing, and even notes the oddity that he got the documents before the court did:

It appears that the Application may have been manually filed in order to create a purposeful lag time (of the motion getting from the filing window to chambers) on what is supposed to otherwise be an emergency motion. It is unclear why undersigned counsel found himself in possession of a copy of the moving papers prior to the Court. Further, the original amount of time was reasonable.

And now... we see what Judge Otis Wright thinks about all of this...

As some of you know, I'm a big believer in the concepts behind Clayton Christensen's Innovator's Dilemma, which explain how disruptive innovation almost always takes incumbents by surprise. A few years ago, I even did a two minute video in which I tried to succinctly explain the innovator's dilemma (an explanation later endorsed by Christensen himself). The basic idea, if you're unfamiliar with it, is that disruptive innovations often hit the market by appearing to be "worse" than the legacy product, and thus the incumbents tend to ignore it. They brush it off as being too crappy or too small or too low end or whatever, and they focus on the "high end." What they often fail to take into account are the basic trend lines. The disruptive innovator tends to improve their product at a much faster rate, and, at some point, hits the quality level where, even if it's still worse (or possibly significantly worse) than the incumbents' offerings, it's actually good enough for their needs. When you look at innovative markets through this prism, you can see it happening over and over again.

So, I read, with much interest, a new piece by Larry Downes (a friend, and someone who has posted here on occasion) and Paul Nunes in the Harvard Business Review about Big-Bang Disruption, in which they argue that the old Innovator's Dilemma model may be somewhat obsolete. This is due to a variety of factors, focused around the fact that disruption comes faster than ever before and, these days, frequently comes out of left field -- from someone that people didn't even think was a "competitor." It's a really good read that basically says that a combination of factors, mainly centered around the ability to build new products and services in almost no time and requiring almost no resources, has allowed for a world in which lots of people are rapidly innovating experiment after experiment, and some of those catch on and go viral in an instant -- frequently disrupting existing players, who never even had a chance to see the disruption coming.

It's a great piece that I highly recommend for folks who are interested in the nature of disruptive innovation -- though I'll push back on one point. I really don't see how this conflicts with or is any different than the innovator's dilemma. It just shows the same basic thing happening more quickly. The main argument that Downes and Nunes use to argue that this is different doesn't so much focus on the innovator's dilemma, but rather focuses on how incumbents should respond to disruptive innovation. In the past, it has been argued, that if you understood the dilemma properly, you could spot the disruptive innovator's early, and then move to buy them out or build a viable competitor quickly. In practice, however, we very rarely see that happen. The number of legacy players, who have succeeded in responding to disruptive innovation, remains an astoundingly small list. And I'd argue that part of that is because disruptive innovation always seems to come out of left field and always seems to come much faster than incumbents expect.

That doesn't detract from the main point of the article, however, which does show how these things are happening faster and faster, and a lot of that is because of the ability to just throw something out there for fun, rather than investing millions of dollars early on in an idea that might never even work.

Right now, at Silicon Valley companies large and small, engineers and product developers are getting together late at night in what are popularly known as “hackathons.” Their goal is to see what kind of new products can be cobbled together in a few days. You know, for fun. The innovators are not even trying to disrupt your business. You’re just collateral damage.

Twitter, for example, began its commercial life humbly at the 2007 South by Southwest conference, following its invention at a hackathon the year before. Its developers wanted to test sending standard text messages to multiple users simultaneously, an experiment that required almost no new technology. Today the company boasts more than 200 million active users and half a billion tweets a day. Twitter has destabilized everything from the news and information ecosystem to unpopular national governments.

While I think the article underplays this somewhat, a big part of why these Big-Bang Disruptions can succeed in this way has a lot to do with the fact that not only can ideas hit the market incredibly fast, but they can also fail fast. We're in an environment where so much innovation for new services can not only be built quickly but people can learn and adapt or even shut down just as quickly. One of the biggest reasons why many people believe Silicon Valley remains the home of so many innovative companies is because there's very little stigma associated with failing. In many circles it's a badge of honor. But, in this environment, where it's so easy to create, that means that innovators also get to test a lot of ideas quickly, to throw out the bad ones, and to focus on the winners. This is so much more productive. On top of that, Downes and Nunes point out that each of those failures might not really be "failures" so much as priming the demand pump by teaching the market what's possible.

The adoption of disruptive innovations is no longer defined by crossing a marketing chasm. Instead, the innovators collectively get it wrong, wrong, wrong—and then unbelievably right. That makes it even harder for businesses wed to today’s products and services. All those failed experiments seem like evidence that the emerging technologies just aren’t ready. In reality, in today’s hyperinformed world, each epic failure feeds consumer expectations for the potential of something dramatically better.

The one other bit of insight that I pulled from the article was that this ability to build things quickly and cheaply, but also to do so online, where one can make use of a variety of tools to have a direct relationship with a community, users, customers, etc., means that companies can burst out of the gate with amazing products that aren't just disruptive by being worse than the market leader, but they can actually hit the market while being better than the leader. The authors write about how various strategy experts in the past have suggested that innovators need to focus on a specific value: be cheaper, be more innovative or be more custom (i.e., most customer focused), but that trying to hit on more than one category will dilute the message and the product. However, thanks to a variety of new services and products, it's absolutely possible to hit the market while being cheaper, more innovative and more closely connected to the customer. And that certainly makes it tough to be an incumbent.

In a separate piece, Downes goes further in explaining the policy implications of this argument, focusing on how these "big bangs" suggest that regulators need to tread even more lightly, as new disruptive services can completely change a market in a very short period of time -- in fact, in time frames that many regulators might not even be able to properly comprehend.

Quickly and efficiently, a predictable next wave of technology will likely put a quick and definitive end to any “information empires” that have formed from the last generation of technologies.

Or, at the very least, do so more quickly and more cost-effectively than alternative solutions from regulation. The law, to paraphrase Mark Twain, will still be putting its shoes on while the big bang disruptor has spread halfway around the world.

All in all, a very interesting theory with some important points that are worth thinking about. I look forward to the eventual book on the subject by Downes and Nunes, though I still think that setting it up as somehow a rethinking of the Innovator's Dilemma doesn't quite make sense, as I believe that what they're describing really is just a more detailed explanation of how current tools and technologies have accelerated the innovator's dilemma. It does, potentially, upset the businesses of those who claim they can train incumbents in how to avoid the innovator's dilemma, but I'd argue most of those efforts were never that successful in the first place anyway.

Bev Stayart, tireless bringer of lawsuits against various search engines for their supposed besmirchment of her good name by placing it next to words like "Levitra," "Cialis," and various porn-related ads, has batted a solid .000 thus far in her legal career.

In 2009, she sued Yahoo! for violating the trademark on her name (no. really.) with its search results, which often produced listings for porn sites and malware. (She, or her legal counsel/husband, also found time to threaten Techdirt with a lawsuit if it didn't remove certain comments on the original post. Techdirt didn't and the lawsuit failed to materialize.) This suit was dismissed later that year, with the court denying her request to refile.

So, Stayart tried a different tack, suing Yahoo! for violating her "privacy rights." This suit was also tossed. In between filing suits against Yahoo! and having them tossed, Stayart filed another "pissed-off-at-search-engines" suit against Google, this time because her name seemed inextricably linked with Levitra in Google's suggestion box. This suit was dismissed as well, as she again failed to prove that her name was a marketable term eligible for trademark protection. All the while, the obvious solution has continued to elude her --- stop suing and mentioning porn, malware and Levitra in your lawsuits and your name might stop being connected with those terms by search engine algorithms.

The latest court decision keeps her hitless string intact, again finding in favor of Google. Stayart's latest angle was to claim Google "misappropriated" her name because (mostly thanks to her legal efforts), "bev stayart levitra" remains a top search suggestion.

On Wednesday, however, the 7th Circuit Court of Appeals tossed her yet another loss in her lawsuit against Google, upholding a decision made by a district court in 2011. In the appellate case, Stayart argued that her rights under Wisconsin's right to privacy laws had been violated under §995.50(2)(b).

"The use, for advertising purposes or for purposes of trade, of the name, portrait or picture of any living person, without having first obtained the written consent of the person or, if the person is a minor, of his or her parent or guardian" constitutes an invasion of privacy, the law states.

But the Court disagreed.

"Stayart has not articulated a set of facts that can plausibly lead to relief under Wisconsin's misappropriation laws," the court wrote (PDF).

In fact, the court cited her own previous case against Yahoo!, in which that court found that there had to be a "substantial rather than an incidental connection between the use and the defendant's commercial purpose."

Many have tried but very few have proven (even in friendlier courts) that search engine algorithms just "have it in" for some people, linking them with ED drugs, porn, malware, Russian gang activity, etc. These many "victims" all share the same self-destructive tendency to file and refile lawsuits, with each filing further cementing the link between their names and the terms they'd rather not have connected with them.

But this lesson remains lost on Stayart. It looks like she's ready to step up to the plate again, in hopes of finally getting on base.

Stayart called Ars back, and said that she vehemently disagrees with the decision, and is considering appealing the case to the United States Supreme Court, as well as other suits. However, she noted that her counsel (also, her husband) will make those decisions.

She adds that she feels the decision was "economically-based" and favored the "one percent." I'm really not sure exactly WHY she feels this way, but I'm sure the future will be full of opportunities for her to explain herself. And when the legal paper starts flying again, Stayart will find herself relentlessly pursued across various search engines by her old nemeses, Levitra and Cialis.

Just when you thought the horse meat scandal in Europe was winding down, it's once again getting media attention as more cases continue to pop up. But is horse meat really that bad? According to people who have (willingly) eaten it, horse meat has been described as being lean, tender, sweet, juicy, like a mix between beef and venison, and better than a really good beef steak. Perhaps beef products in Europe should just come with a label that says: "May contain traces of horse meat." Here are a few more links about horse meat.

• Traces of horse meat were found in IKEA's signature meatballs which had been distributed to 21 European countries. Did you know that food sales make up 5% of the Swedish furniture giant's $35.6 billion revenue, and that about 150 million IKEA meatballs are consumed globally? [url]
• Nestle has had to remove two of its pasta products from store shelves in Europe after traces of horse DNA were found in them. In both cases, the amount of horse DNA found in the products was higher than the 1% threshold which the British Food Standards Agency uses as an indicator of adulteration in foods. [url]
• People were up in arms recently when chef Hugue Dufour announced that he was going to serve horse tartare at his restaurant, M. Wells Dinette, in Queens, NY. With all the public opposition, Dufour decided it was best to drop the horse tartare from the menu, because he didn't want to be famous for "scandalizing animal lovers." That's probably for the best, since horse meat (esp. that sourced from the horse racing industry) could contain all sorts of drugs, including phenylbutazone, which is a carcinogen and has been strongly linked to bone marrow and liver problems in humans. [url]
• Here are some fun facts about eating horse meat: During World War II, Americans ate lots of horse meat when beef was scarce; In 723 A.D., Pope Gregory III declared that eating horse meat was a "filthy and abominable" pagan custom; In 2011, President Obama made horse slaughter for human consumption legal again; Until 1985, the Harvard Faculty Club reportedly served horse steaks, prepared "chicken fried" with a mushroom sauce; and apparently, horse meat is a healthier option than beef, since it's high in protein and omega-3 fatty acids, low in fat and cholesterol, and has twice as much iron and Vitamin B. [url]

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

There are two schools of thought on drafting a benchslap. One method involves laying out the most egregious behavior of the target right up front to set the tone for the scathing punishment to follow. The other, subtler method involves slow-playing the transgressions in a glorious crescendo of suspect conduct.

Senior Judge Victor Musleh of the 5th Judicial Circuit in Lake County, Florida ascribes to the latter school. When his February 28th order in Wells Fargo v. Granger hit the ATL tips inbox, I thought it was a mild story. But this page-turner of an order raised the stakes with each paragraph….

The subject of Judge Musleh’s order is Mark Stopa of the Stopa Law Firm (and a Fantasy Sports guru). From the first page, Judge Musleh lets the reader know that there are “many” problems in this case, but singles out a straight-forward technical issue as though it’s the most troubling.

As a preliminary matter, this Court finds that Defendants’ Motion is in many respects misleading, insulting, and contains too many falsehoods to list. However, one aspect that is especially troubling to the Court is that Defense Counsel has signed his name as a member of The Florida Bar to a Motion that he purports to be verified by Defendant Jeffrey Granger. Defendant Granger has averred under penalty of perjury that the facts in the Motion are true and correct, and yet Defendant Granger Was not present for the events in question, either in person or via telephone, and thus has no personal knowledge of What took place. It is therefore impossible for Defendant Granger to swear to the veracity of the Motion and has subjected himself, through counsel’s misguided need to verify his Motion, to a charge of perjury at most and sanctions detrimental to his ease for misleading this Court, at the very least.

Signing a document that purports to be verified when it’s not is a transgression, but nothing too exciting. I almost stopped reading here. But that would have been a mistake.

Defense counsel Stopa apparently believes that this Court is able to conjure a written Order of denial on rulings out of thin air as he asked for a written Order on his denied Motions in order to pursue appellate relief and now complains that the Court did not accommodate him.

Feel the snark dripping off the page. But still this is pretty standard slap-fighting so far. But then the order points out that Stopa got belligerent in a hearing. And here’s the follow-up:

Mr. Stopa then launched into an argument regarding the courtroom facilities and the fact that he was denied entrance to the court proceedings prior to being called for the instant case. Prior to calling the case, the undersigned judge and court personnel could hear loud banging on the door outside the conference room where the proceedings were being held and a loud voice demanding entry.

This is a full-on freak out. In a courthouse. Banging on doors and petulantly complaining that the facilities are not up to his standards. Judges can begin to feel a little too high and mighty, but they are entitled to expect that the lawyers won’t bang on the doors of the courtroom and kvetch about the decor.

Even more egregious than the falsehoods perpetuated in his Motion regarding the court proceedings are Mr. Stopa’s allegations that the undersigned “physically assaulted” him.

Now, most people would have led with that part of the story, but Judge Musleh is a goddamned master storyteller.

These are serious allegations whose purpose is unknown other than to discredit the reputation of a member of the judiciary, whose rulings he did not appreciate. Unlike his allegations, Mr. Stopa did not remain in his chair and speak in a normal tone of voice. He rose from his seat and addressed the court in a loud, arrogant, and extremely uncivil tone. He had to be warned by the court bailiff to calm down. As court had been in session for approximately four hours with only a minute break, the undersigned did rise, walk around the conference table in Mr. Stopa’s direction in order to stretch his legs, and intended to leave the room. But due to Mr. Stopa’s continuing diatribe, the undersigned circled the table and returned to his seat. While the undersigned may have pointed a finger in Mr. Stopa’s direction from several feet away while attempting to answer Mr. Stopa’s outbursts, in no way did the Court physically assault Mr. Stopa or prevent him from leaving the room. The allegations of physical assault and intimidation are preposterous and untrue.

The real kicker to this whole order is that Judge Musleh had already recused himself from the case. But Stopa refused to wait to receive notice of the Judge’s recusal and filed his motion to disqualify in the interim, prompting Judge Musleh to fire off this order that concludes by dismissing Stopa’s motion as moot.

And that’s really the most satisfying moment. When you realize the Judge went to all this trouble, not because he had to, but because he really thought the lawyer deserved it.

Order Responding To Renewed Verified Motion To Disqualify [Wells Fargo v. Granger, 5th Judicial Circuit, Florida]

More stories from Above The Law:

• Not Even Robots Want To Go To Jury Duty!
• Why The ABA Is Resistant To Change
• How Much Does It Cost To Name ALL THE THINGS At A Law School?

We've been writing about ECPA reform for ages. In case you haven't been following this, ECPA is an incredibly outdated law concerning the privacy of electronic communications. As it stands now, thanks to some oddities in the law, the government can often access your online data with little oversight (among the many oddities in the bill, it considers emails on a server for more than 180 days "abandoned" and accessible by the government without a warrant). While many politicians in Congress claim that they're in favor of ECPA reform, little ever seems to happen with it. Late last year it had looked like a deal might have been worked out whereby Congress would approve strong ECPA reform that would respect the privacy of our data, in exchange for also reforming privacy laws concerning video rental data (basically a favor to Netflix and Facebook).

Law enforcement, as always, flipped out about the ECPA reform bit, and at the very, very end of Congress, the video rental reform stuff passed while ECPA reform was left on the cutting room floor.

This week, however, ECPA reform has been brought back once again, this time in the House, by Rep. Zoe Lofgren, along with Reps. Ted Poe and Suzan DelBene. The proposed bill, called The Online Communications and Geolocation Protection Act, is embedded below. It's a strong bill, meaning law enforcement folks are likely to flip out again. Among the reforms, it would set up a clear and consistent standard for requiring a warrant for government access to electronics communication. That is, it will get rid of the hodge podge of ECPA rules that change based on how old the communications are, if it's been opened, if it's a draft, etc. Now, we just get one rule, across the board, and that rule is get a warrant. It also requires (with a few exceptions) that notice be given to the user/account holder, so that people actually know when the government goes looking through their data.

In an attempt to appease law enforcement, the bill leaves in many "exceptions," that will allow law enforcement to bypass these rules in certain cases. The bill would be stronger without these exceptions, but there's no way the bill passes without something like that in there.

As you may have realized from the name, the bill also has a section dealing with "geolocation" information. This is important because there are a bunch of ongoing fights concerning the privacy of your location data (obtained via mobile phones, GPS devices and such). As we've covered here repeatedly, the courts have been ruling every which way on the legality of law enforcement accessing this kind of data, and so the bill tries to clarify that, and puts in place prohibitions on the government intercepting location info without a warrant (with, of course, a few key exceptions -- including in an emergency, if the person gives consent or if the data is already public).

It's a good bill that deserves support. While it may not be perfect, it's a hell of a lot better than what we have now. This would be a huge step up in protecting our privacy from government intrusion, which means it's going to be an uphill battle against law enforcement interests to get it passed. That said, maybe this is finally the year when all those elected officials who claim ECPA reform is important get their act together and vote to approve real reform.

Here's a surprise ruling. For many years we've written about how troubling it is that Homeland Security agents are able to search the contents of electronic devices, such as computers and phones at the border, without any reason. The 4th Amendment only allows reasonable searches, usually with a warrant. But the general argument has long been that, when you're at the border, you're not in the country and the 4th Amendment doesn't apply. This rule has been stretched at times, including the ability to take your computer and devices into the country and search it there, while still considering it a "border search," for which the lower standards apply. Just about a month ago, we noted that Homeland Security saw no reason to change this policy.

Well, now they might have to.

In a somewhat surprising 9th Circuit ruling (en banc, or in front of the entire set of judges), the court ruled that the 4th Amendment does apply at the border, that agents do need to recognize there's an expectation of privacy, and cannot do a search without reason. Furthermore, they noted that merely encrypting a file with a password is not enough to trigger suspicion. This is a huge ruling in favor of privacy rights.

The ruling is pretty careful to strike the right balance on the issues. It notes that a cursory review at the border is reasonable:

Officer Alvarado turned on the devices and opened and viewed image files while the Cottermans waited to enter the country. It was, in principle, akin to the search in Seljan, where we concluded that a suspicionless cursory scan of a package in international transit was not unreasonable.

But going deeper raises more questions. Looking stuff over, no problem. Performing a forensic analysis? That goes too far and triggers the 4th Amendment. They note that the location of the search is meaningless to this analysis (the actual search happened 170 miles inside the country after the laptop was sent by border agents to somewhere else for analysis). So it's still a border search, but that border search requires a 4th Amendment analysis, according to the court.

It is the comprehensive and intrusive nature of a forensic examination—not the location of the examination—that is the key factor triggering the requirement of reasonable suspicion here....

Notwithstanding a traveler’s diminished expectation of privacy at the border, the search is still measured against the Fourth Amendment’s reasonableness requirement, which considers the nature and scope of the search. Significantly, the Supreme Court has recognized that the “dignity and privacy interests of the person being searched” at the border will on occasion demand “some level of suspicion in the case of highly intrusive searches of the person.” Flores-Montano, 541 U.S. at 152. Likewise, the Court has explained that “some searches of property are so destructive,” “particularly offensive,” or overly intrusive in the manner in which they are carried out as to require particularized suspicion. Id. at 152, 154 n.2, 155–56; Montoya de Hernandez, 473 U.S. at 541. The Court has never defined the precise dimensions of a reasonable border search, instead pointing to the necessity of a case-by-case analysis....

For years, we've repeated two key arguments for why border searches of laptops and other devices should be illegal.

• You mostly store everything on your laptop. So, unlike a suitcase that you're bringing with you, it's the opposite. You might specifically choose what to exclude, but you don't really choose what to include.
• The reason you bring the contents on your laptop over the border is because you're bringing your laptop over the border. If you wanted the content of your laptop to go over the border you'd just send it using the internet. There are no "border guards" on the internet itself, so content flows mostly freely across international boundaries. Thus if anyone wants to get certain content into a country via the internet, they're not doing it by entering that country through border control.

We'd never seen a court even seem to acknowledge that content on devices is different than contents in a suitcase... until now. One interesting tidbit, is that they specifically note that "secure in their papers" part of the 4th Amendment, while noting that what's on your device is often like your personal "papers."

The amount of private information carried by international travelers was traditionally circumscribed by the size of the traveler’s luggage or automobile. That is no longer the case. Electronic devices are capable of storing warehouses full of information. The average 400-gigabyte laptop hard drive can store over 200 million pages—the equivalent of five floors of a typical academic library.... Even a car full of packed suitcases with sensitive documents cannot hold a candle to the sheer, and ever-increasing, capacity of digital storage.

The nature of the contents of electronic devices differs from that of luggage as well. Laptop computers, iPads and the like are simultaneously offices and personal diaries. They contain the most intimate details of our lives: financial records, confidential business documents, medical records and private emails. This type of material implicates the Fourth Amendment’s specific guarantee of the people’s right to be secure in their “papers.”.... The express listing of papers “reflects the Founders’ deep concern with safeguarding the privacy of thoughts and ideas—what we might call freedom of conscience—from invasion by the government.”... These records are expected to be kept private and this expectation is “one that society is prepared to recognize as ‘reasonable.’”

Electronic devices often retain sensitive and confidential information far beyond the perceived point of erasure, notably in the form of browsing histories and records of deleted files. This quality makes it impractical, if not impossible, for individuals to make meaningful decisions regarding what digital content to expose to the scrutiny that accompanies international travel. A person’s digital life ought not be hijacked simply by crossing a border. When packing traditional luggage, one is accustomed to deciding what papers to take and what to leave behind. When carrying a laptop, tablet or other device, however, removing files unnecessary to an impending trip is an impractical solution given the volume and often intermingled nature of the files. It is also a time-consuming task that may not even effectively erase the files.

Huh. That last paragraph sounds a lot like my argument above. Very cool to see a court actually recognize this basic point. Considering it had been ignored for so long, I'd almost given up hope.

In this case, they also noted that part of the forensic analysis of the computer involved restoring deleted files, and note:

It is as if a search of a person’s suitcase could reveal not only what the bag contained on the current trip, but everything it had ever carried.

The court is equally worried about the fact that the device is often just a portal to cloud based services, and how a search of a device might lead to access to that data, even if it's been snug and secure "in the cloud" the whole time, rather than crossing the border:

With the ubiquity of cloud computing, the government’s reach into private data becomes even more problematic.12 In the “cloud,” a user’s data, including the same kind of highly sensitive data one would have in “papers” at home, is held on remote servers rather than on the device itself. The digital device is a conduit to retrieving information from the cloud, akin to the key to a safe deposit box. Notably, although the virtual “safe deposit box” does not itself cross the border, it may appear as a seamless part of the digital device when presented at the border. With access to the cloud through forensic examination, a traveler’s cache is just a click away from the government.

Of course, this doesn't mean that no searches can ever take place. Instead, they just need to be "reasonable" and live up to the standards of the 4th Amendment. In fact, in this very case they still say that there was "reasonable suspicion to conduct the initial search, and that appears like it may be a legitimate claim (the guy had a previous conviction for child molestation, which the agents believed -- incorrectly, but they believed it at the time -- was for child porn). But for everyone else, where there is no reasonable suspicion, our 4th Amendment protections just got stronger (at least if you're entering the country in an area covered by the 9th Circuit (covering California, Alaska, Arizona, Hawaii, Oregon, Nevada, Washington, Idaho and Montana).

There's one other important part of the ruling as well. In discussing the "reasonable suspicion" the court agrees it was there because of the prior conviction, as well as the fact that guy was travelling from Mexico which is "a country associated with sex tourism." However, the government also argued that password protected files gave them reasonable suspicion, and thankfully the court slaps them down:

To these factors, the government adds another—the existence of password-protected files on Cotterman’s computer. We are reluctant to place much weight on this factor because it is commonplace for business travelers, casual computer users, students and others to password protect their files. Law enforcement “cannot rely solely on factors that would apply to many law-abiding citizens,” ... and password protection is ubiquitous. National standards require that users of mobile electronic devices password protect their files.... Computer users are routinely advised—and in some cases, required by employers—to protect their files when traveling overseas....

There are some dissenting opinions, basically suggesting that this upturns more settled law, but the majority ruling makes a strong case for why the Supreme Court has actually not really directly answered this question before, but has tiptoed carefully around it. Still, it seems likely that there will be an appeal to the Supreme Court, so this probably isn't over yet. Hopefully, the Supreme Court will uphold this important ruling, and recognize that we don't give up our 4th Amendment rights at the border.

Well, what a difference 114,000 signatures, a Presidential endorsement, and an FCC investigation make! As a lead activist on this issue, I can say that on Capitol Hill there has been a significant sea change on the issue of cellphone unlocking. Numerous Republicans and Democrats have come out publicly in favor of unlocking and against the criminal penalties at hand. On Monday, only a few hours after the Presidential endorsement of unlocking, we heard from Rep. Chaffetz that he was working on legislation -- through him tweeting:

Working on leg to unlock your mobile phones.It is a freedom issue.You own the phone, you should be able to unlock it. .@derekkhanna

— Jason Chaffetz (@jasoninthehouse) March 5, 2013

On Tuesday, Senator Wyden introduced his legislation, the Wireless Device Independence Act. This is a good first step but unfortunately, it does not actually address the problem yet. In its current text, it seems to allow for individuals to unlock their own phones, but it keeps developing, selling, trafficking and discussing the tools and technology of cellphone unlocking still illegal. Without these tools being legalized, unlocking is still effectively illegal.

Also on Tuesday we heard from numerous Members of Congress that they support legalizing unlocking, including Rep. Darrell Issa and Rep. Jarred Polis. Additionally, there was a statement by Senator Patrick Leahy that was seen by many as giving a green light to other Democrats to endorse the legislation. Sen. Leahy, Chairman of the Judiciary committee, released this statement:

"I intend to work in a bipartisan, bicameral fashion to restore users' ability to unlock their phones and provide them with the choice and freedom that we have all come to expect in the digital era,"

Then on Thursday, Senator Amy Klobochar, Senator Richard Blumenthal and Senator Mike Lee introduced the Wireless Consumer Choice Act (and Rep. Anna Eshoo is expected to introduce companion legislation in House).

From Senator Lee:

"Consumers shouldn't have to fear criminal charges if they want to unlock their cell phones and switch carriers... Enhanced competition among wireless services is the surest way to increase consumer welfare."

This statement is confusing as it is supposed to be about this bill – but that's not actually what the Wireless Consumer Choice Act DOES.

The actual text of the Wireless Consumer Choice Act says that: "[the FCC] shall direct providers of commercial mobile services and commercial mobile data services to permit the subscribers of such services, or the agent of such subscribers, to unlock any type of wireless device used to access such services." This is quite a confusing bill text. Here are a few problems. What does permit mean in this context? Is it:

1. Carriers can't actively stop consumers with technological means (unlikely).
2. Carriers can't stop consumers (but which doesn't address manufacturers or others like the DOJ going after you for criminal charges).
3. Facilitate the unlocking by providing the codes upon request? Would they have to give the codes even if you are in contract to not unlock? Doesn't permit mean you are required to period?

The one thing we know for a fact is that "permit" doesn't have anything to do with adjusting their contractual terms to "allow" for consumers to unlock under their contract (all legislation appears to have a clause asked for by CTIA that it won't touch existing contract law). Essentially, this legislation says that the wireless companies can't enforce Section 1201 of the DMCA.

But that doesn't protect against the manufacturers like Apple, HTC, etc. coming after users (as was the case for Sina Khanifar, who joined me on the activism campaign for unlocking). And it doesn't protect against the criminal provisions, which would require another law. So since it has nothing to do with criminal law, it's confusing as to why Sen. Lee's statement would be about criminal law; however, it appears that he may introduce new, supplemental legislation that specifically deals with the criminal provisions as well.

Ok, so we are now at a total of two introduced bills.

Lastly, and perhaps most promising, as mentioned at the top, it appears that Rep. Jason Chaffetz is working on legislation and expected to target the unlocking criminal penalties, like Senator Wyden's bill, but Rep. Chaffetz' bill appears to be seriously considering doing so in an inclusive manner to also legalize the tools. In legalizing developing the tools, trafficking, selling and using the tools, such a bill would be the first real bill to actually make unlocking lawful.

Just to be clear, legislation goes through a process, and these bills will be revised and go through a committee. These committee hearings may be one of the first times that Congress has discussed some of the issues with the DMCA in the recent past. It's really pretty incredible that they haven't even held oversight hearings.

Unfortunately, none of the bills under consideration or under discussion appear to include anything beyond unlocking. They do not include anything to allow for accessibility technology for persons who are blind or deaf, allow for jailbreaking, or allow for computer science research. These issues will require additional activism and engagement to get them on the table.

If a narrow bill passes on unlocking, instead of taking on more substantive reforms, it is my intention to next lead a targeted campaign on accessibility technologies. There is no legitimate governmental reason for keeping these accessibility technologies illegal -- and we cannot continue to deny persons who are deaf and blind technology that can help them because a law was written before modern technology, outlawing them by default.

Today is just over two months since my last day on Capitol Hill -- and in those two months I have seen the anti-SOPA coalition accomplish their first forays in actively passing positive legislation. These may seem like small victories, but as I discuss in my piece for Boing Boing, these are small, strategic, affirmative victories that will culminate in even greater action. I encourage people to stay involved and continue to reach out to their Members of Congress on this issue. It's up to us to ensure that they actually fix the problem, as opposed to just checking the box.

Update: This afternoon we find out that Rep. Goodlatte, House Judiciary Committee Chairman, will be introducing a bipartisan bill with Ranking Member Rep. Conyers on this issue -- but it's unclear what they have in mind. Let's hope that Goodlatte's bill actually solves the problem by including legalizing the tools permanently -- rather than a check the box approach. But Goodlatte was also an original sponsor of the Stop Online Piracy Act (SOPA) so we will have to see their approach. The worst check the box approach would be to simply reverse the decision of the Librarian of Congress and provide a temporary "exception" for three years and let the Librarian rule on this again in three years. That would keep the underlying technology illegal but also require the same triennial review process, that has failed here, to ask permission. That would be truly unacceptable.

Update: Since this morning, National Post seems to have disabled this feature. Whether the change is permanent or not I can't say.

Despite three years of journalism school and several more working at newspapers, I'll never understand the double standard that journalists and publishers have when it comes to copyright and fair use/fair dealing. The act of reporting relies heavily on the latter, and the news business would be a very different place if newspapers were expected to pay licensing fees on the quotes they gather from experts, reports and other sources. Thus, newspapers have traditionally been staunch defenders of fair use—that is, until they find themselves on the other side of the equation.

Through Michael Geist we learn that Canada's National Post (disclosure: I used to work for the paper as a freelancer) is trying out a highly disruptive new "feature" that attempts to scare people out of quoting the articles without paying up:

If you try to highlight the text to cut and paste it, you are presented with a pop-up request to purchase a licence if you plan to post the article to a website, intranet or a blog. The fee would be $150. ... If you click no to the pop-up, you cannot copy the text. If you click "quit asking me", the request stops.

I've seen newspapers with "license calculators" for quotes before, and of course we've all seen websites that frustratingly interfere with your copy-and-pase or right-click abilities—but this is the first time I've seen the two combined. The system is driven by iCopyright, a plugin that promises to make it "super easy" for people to license your content, but I guess not so easy that people won't hopefully feel compelled to pay.

This isn't just a dumb idea—it's a really hypocritical game for a newspaper to be playing. Geist underlined the irony by pointing to the regular Post feature Full Pundit, in which writer Chris Selley does a roundup of editorial and opinion columns from the week in Canadian media. Naturally, this involves lots of quotes and snippets from these other media sources, which Selley then expands on or disagrees with or otherwise comments upon—all unlicensed quotes, the use of which is clearly protected under Canada's fair dealing laws for commentary and criticism (and would be equally protected in the US under fair use laws). But if you try grabbing a snippet from Full Pundit, you'll be asked to pay a license. Worse still, if you try to grab one of the quotes from another newspaper on the National Post site, you'll still get the same popup telling you to look into licensing options... for a quote they don't own and are themselves using for free on the basis of fair dealing.

The popup does not mention fair dealing or fair use. It takes some digging to find iCopyright's fair use statement, which is a masterpiece of menacing disingenuousness. As we've noted in the past, the fact that the boundaries of fair use and fair dealing are often unclear creates a massive chilling effect, since people are unsure about their rights and not always willing or able to fight for them, and iCopyright relies on that very effect to scare people into paying up:

The use of excerpts from others' works without a license is permitted in certain limited circumstances under the "fair use" doctrine of U.S. Copyright Law and the "fair dealing" doctrine in Commonwealth nations. However, republication on the internet, without a license, of even a small portion of a work can constitute copyright infringement.

The distinction between "fair use" or "fair dealing" and infringement is not easily defined because each re-use has unique characteristics that must be analyzed. For example, there is no specific number of words or lines that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission. For additional information you may want to do an internet search of "fair use checklist" and "copyright myths."

Got that? "It's pretty hard to know if something's fair use, so you probably shouldn't bother." The page then offers a list of factors that often come up in fair use analyses, and suggests that if any of them apply to your use, it is "cause for serious reflection" on whether or not you are protected:

• Is the excerpt such that the reader may feel he/she already has the gist of the original work and no longer needs to read it?
• Is it your intent to earn money, whether through ads, subscription revenues, or otherwise?
• Is the work that was excerpted highly creative?
• Are you choosing not to exercise an affordable and accessible licensing mechanism?
• Are you publishing the excerpt widely, such as on the Web?
• Is the work of excerpted authors the main draw to your work as opposed to serving as a "footnote"?

Now, it's true that all of those are factors that can matter, but it's also true that you could answer 'yes' to virtually all of them and still be within the bounds of fair use/fair dealing. This is easily demonstrated by looking at the snippets within the National Post Full Pundit columns, which are a definitive "yes" on all but the first item. The issue of quote length is doubly amusing, since the Post recently lost a lawsuit it brought against an internet forum, because the Supreme Court declared that posting large snippets (multiple paragraphs) of articles can still be fair dealing, and that the established fair dealing exceptions for "news reporting" can include things like online forum discussions.

And that's where we see the double standard emerge. For a long time, newspapers really were the only source for news reporting, and thus over the years they got some special considerations in the laws and in the courts. Today everyone is a reporter, a photographer and a publisher, and these non-ink-stained wretches are quite rightly utilizing the same rights that "official" news sources have, for the same purposes. Newspapers like the National Post seem to have a hard time getting their head around that, so they launch lawsuits against forums and stick pointless bullying popups on their websites. It strikes me as a matter of arrogance more than anything else.

And, of course, it has to be asked: what is this going to accomplish? It's certainly not going to become a massive revenue stream for the paper, with bloggers (who are becoming well-versed in fair use and fair dealing themselves) forking over $150 every time they want to quote the National Post. There is another possibility, which is that it's a legal tactic: in future lawsuits, the Post could point to this popup tool as an "available and affordable license" that someone chose to forego, giving them a slight leg up in an anti-fair-dealing argument.

Either way, it's a hypocritical and even somewhat despicable move. The National Post is fighting against an important legal protection that is vital to newspapers themselves and to free speech as a whole. Here's hoping that the writers featured in Full Pundit columns, and anyone else quoted in the Post, calls up the newsroom and demands a $150 licensing fee.

Yesterday we wrote about Attorney General Eric Holder's ridiculous claims defending the prosecution of Aaron Swartz. We noted two key things that were ridiculous. First, Holder insisted that Swartz was only facing a few months in jail (he implied 5 months, tops) and scolded the media for claiming it was 35 years. As we noted it was the US Attorneys' own press release that trumpeted the 35 years. More importantly, the few months in prison was only if he agreed to plead guilty. If he continued to profess his innocence (something you would do if you believed you were innocent), the US Attorneys claimed they were going to push for seven years. The other ridiculous point that Holder made was that it was "good prosecutorial discretion" to offer just a few months in the plea bargain, because that somehow showed them recognizing the "context" of the crime.

In response, Swartz's girlfriend, Taren Stinebrickner-Kauffman has put out a very strong statement, slamming Holder's claims. Not only does she highlight the threat of seven years in prison, but she goes much further, to allege clear prosecutorial misconduct by the US Attorney's office, including seizing and holding evidence without a warrant, lying to the judge and then withholding exculpatory evidence from Swartz's lawyers. These are three really serious charges that I haven't seen much discussion about previously:

"Eric Holder and the Department of Justice are clearly trying to mislead the Senate and the public. Holder claims that Aaron was only facing months in prison while Heymann and Ortiz were actively pursuing a penalty of 7 years if the case went to trial. If you believe you're innocent, you should not be coerced into accepting a plea bargain that marks you as a felon for life, just because prosecutors want to boast about taking a scalp. The discrepancy between the plea deal and the amount of prison time prosecutors said they would pursue at trial violates the DOJ's own guidelines in this regard. Holder is trying to engage in revisionist history at the same time he claims that the strict sentences pursued by prosecutors were a 'good use of prosecutorial discretion.'

What's worse, this isn't just about sentencing. Steve Heymann engaged in serious prosecutorial misconduct on multiple occasions. Public documents show that he instructed the Secret Service to seize and hold evidence without a warrant, violating the Fourth Amendment. He then lied to the judge about that fact in written briefs. And he withheld exculpatory evidence from Aaron's lawyers for over a year, despite both a legal and ethical obligation to turn it over. If this constitutes appropriate behavior from the perspective of the Department of Justice, then we live in a police state.

The Department of Justice is not interested in admitting their errors, even when an out of control US Attorney's office has cost this country one of our best and brightest. The DOJ is only interested in covering their asses."

It's too bad that Holder wasn't quizzed about those specific points as well. The fact that he was able to mischaracterize the actions by the US Attorney's office in how they went after Swartz is really unfortunate.

This probably will come as little surprise given his earlier objections, but Prenda Law's Brett Gibbs has filed yet another series of "objections," filed by his recently obtained legal representation from the law firm of Waxler, Carner, Brodsky. Like the last time around, the objections follow the same pattern, basically arguing that pretty much everything Morgan Pietz has said or filed is "irrelevant" along with a rotating cast of other objections: hearsay, lacks foundation, argumentative, assumes facts not in evidence, speculation, etc. Some of these objections seem obviously ridiculous. For example, he objects as "hearsay" (among other things) a statement from Pietz about Gibbs filing different versions of the same motion. This is, to put it mildly, overkill.

Not surprisingly, the objections include the use of the Paul Hansmeier deposition which got so much attention yesterday. The specific objections here: irrelevant, lacks foundation and/or personal knowledge, hearsay, speculation, argumentative, assumes facts not in evidence, improper characterization of evidence, improper authentication of document. The idea that the document is irrelevant is simply laughable.

It's somewhat surprising that Gibbs and his lawyers felt this was a productive use of their time. As was covered pretty clearly in Ken "Popehat" White's big analysis of the case, it's quite clear that Judge Otis Wright is not buying Brett Gibbs' story, at all. In fact, he's taking an incredible level of interest in the details of the case, in a manner that suggests he does not trust Gibbs at all. Given that, you would think that filing a list of objections like this not only will not have the hoped for effect, but might actually do the exact opposite. It serves to highlight just how worried Gibbs is that this evidence will be used by Judge Wright in exploring the depths of Prenda's actions. Yes, some lawyers think that you should object to everything imaginable just in case it works. But, in this case, with the Judge making it pretty damn clear that he doesn't believe Gibbs and wants to get to the bottom of what's going on with Prenda, taking such an aggressive stance to all of this evidence seems like it could be a pretty big miscalculation. It does fit with Gibbs' and Prenda's standard operating procedures, but considering how badly that's failed in this case so far, you'd think that someone would have the sense to suggest he let up on the throttle a bit.

Well, this should be fun. A bill (a very short one) has been introduced into the Texas state legislature that would grant various entities the right to serve people legal papers via their social media accounts. This is more of an add on than an actual bill, giving process servers, etc. the choice (should a judge allow it) to bring you the glad tidings of a legal summons, divorce proceedings, paycheck garnishment and the like through various social media services.

Here's the pertinent legal wording in all its brief glory.

Sec.A17.031. SUBSTITUTED SERVICE THROUGH SOCIAL MEDIA WEBSITE. (a) If substituted service of citation is authorized under the Texas Rules of Civil Procedure, the court may prescribe as a method of service under those rules an electronic communication sent to the defendant through a social media website if the court finds that:

(1) the defendant maintains a social media page on that website;

(2) the profile on the social media page is the profile of the defendant;

(3) the defendant regularly accesses the social media page account; and

(4) the defendant could reasonably be expected to receive actual notice if the electronic communication were sent to the defendant’s account.

Now, I can understand the frustration of those in the paper-serving business. If someone truly doesn't want bad news delivered to them, they can simply not answer the phone, pick up the mail and otherwise make themselves unavailable. Most people, however, can't seem to stay away from Facebook and other social media networks for very long, though, making this avenue extra tempting. In fact, a judge in Australia made an exception to allow a lawyer to serve notice of foreclosure via Facebook back in 2008, after the foreclosees failed to show up in court.

The problem with this sort of activity is that it becomes a very public act. There are a variety of ways to contact people discreetly via social media, but those methods can be just as easily ignored as anything IRL.

For instance, my Facebook account receives quite a few messages from people I don't know or follow. I check this inbox roughly once every NEVER. If someone were to send me a notice I needed to respond to within X amount of time or face the dire consequences (I don't know -- hacked to death by cleaver-wielding members of the Sheriff's department?), I would blissfully slip right past the deadline and be cleaved to death once the time had expired. In order to actually be noticed, those serving legal notices might need to "befriend" those they're serving, something that seems unlikely. (You have a friend request from Lower Brule County Sheriff's Department. Accept?)

The easier option would be to just splatter the news all over your personal page, which is viewable by (at the minimum) your Friends list. If you're like everybody, you'd probably rather not have everyone you've Facebook-friended know that you're seriously delinquent on your child support payments or that your car has just been repossessed.

Likewise with Twitter. If both parties don't follow each other, they can't utilize direct messages, the behind-the-scenes Twitter option. This basically means that those serving papers will be left to publicly @you, something that's viewable by everyone on Twitter.

Now, those pushing for this can argue that the very process of serving papers is rarely private. After all, your neighbors can see the sheriff's car in your driveway. If you've been particularly troublesome to get ahold of, a person may find someone hurling papers in their general direction at their workplace, in the airport, while walking down the street, at their kid's ballgame... pretty much anywhere.

Having someone Tweet "YOU'VE BEEN SERVED" with a link to a PDF isn't that much different than having papers shoved into your hands at a crowded mall. The main difference (which may be key) is that the document will be immediate, public knowledge, unlike a fistful of paper shoved into your reluctant hands.

Now, if this bill does become law (and that's a very big IF), one would hope that these judges would be extremely reluctant to grant servers the right to hurl papers all over the internet. The potential for abuse is enormous, especially considering the IRL option is much more strenuous than firing off tweets and Facebook posts from the comfort of an air-conditioned office. Sure, I'd love to see more deadbeat dads get served for non-payment of child support and other miscreants receive their legal comeuppance, but I'd much rather see this process handled with a bit more propriety than these public venues would allow.

Well, we've certainly heard plenty about DRM and shoehorned-in multiplayer recently, what with EA's recent Hindenburgish SimCity "launch." As was detailed all over the web, the only people hurt by these "features" were paying customers, many of whom spent $50-60 for a server Roulette wheel that limited users to one spin every half hour.

Many developers are concerned with piracy and have made the mistake of crippling their software with DRM that punishes paying users disproportionately while affecting pirates hardly at all. At best, these efforts result in a Pyrrhic tie, damaging the developers' relationships with their customers while having a negligible effect on infringement.

Fortunately, some developers would rather not sacrifice their customers' happiness in order to briefly irritate a few pirates. Avalanche Studios, the developer behind Just Cause 2, is one of these forward-thinking developers. In an interview with Gaming Bolt, founder Cristofer Sundberg had this to say about DRM.

"DRM solutions which limit the game experience should not exist. That's my honest opinion...

They make us look greedy, which we are not. It treats our fans like criminals, which they are not. With that said, I think that we deserve getting paid for years of hard work and I think piracy is hurting our ability to make great games."

However you may feel about his statement on piracy, there's no arguing with the fact that he's unwilling to put anti-piracy efforts ahead of providing Avalanche's customers with a great experience. He also parts ways with EA (among others) on another aspect of piracy prevention, one that's almost always presented as a "feature," rather than just another limitation on the end user.

He is also against adding multiplayer component to a game to prevent the game from being traded.

He uses his own game as an example. Just Cause 2 is rarely sighted in used game stores simply because the players who purchased it years ago are still playing it. There's no (native) multiplayer in Just Cause 2 (excluding an awesome PC-only mod), but that has done nothing to diminish its popularity). As Sundberg sees it, throwing multiplayer options in for their own sake (or as a form of DRM/resale prevention) weakens the original product.

"Nobody wins in the end; the developer can't make the great experience that they want to, the publisher doesn't get its money back and the consumer is disappointed. I am convinced that this mentality contributes to the downfall of the industry."

So, either Sundberg is crazy or he's actually paying attention to the gaming community. At times, it almost seems as though certain companies think their customers are the last people they should listen to -- a very strange position for entities in the business of selling things. Hopefully, more will realize the damage they're doing far outweighs the nominal gains and DRM will become an exception rather than the rule for AAA developers.

There have been many posts on Techdirt about the copyright industry's hatred for new technologies that eventually turned out to be important sources of additional revenue -- the VCR being perhaps the most famous example. Here's a splendid column from Adam Turner in the Sydney Morning Herald about the same thing happening again in Australia.

As he points out, last year Australia saw a 4% growth in music sales, which outpaced the rest of the world, whose much lower 0.3% growth we discussed recently. In other words, if anything, the Australian recording companies should be celebrating the present and optimistic about the future. Instead, they are once more frightened by some technological developments that will in fact help them: an upgrade to the country's Internet infrastructure. Here's how Turner puts it:

As the National Broadband Network [NBN] rolls out across the country, it's going to make music and video downloads more accessible to all Australians. It's time for the music industry to learn the lessons of the past decade and seize the initiative. But it seems you can't teach old gucci-clad dogs new tricks.

"If more action isn't taken by the government and ISPs to curb piracy levels the NBN could have disastrous results for the local industry," according to a major report from the International Federation of the Phonographic Industry. "All Australian content industries" will suffer if pirates are allowed to run rampant on the NBN, added Dan Rosen -- CEO of Australian Recording Industry Association.

It's really extraordinary that even in the face of figures that suggest digital sales are taking off, the recording industry is still demanding harsher measures against people who share unauthorized copies of files online, as if that ever worked -- or ever could work. For, as Turner rightly says:

Ramping up the war on its customers won't see people start buying more music. It's a war the music industry can't win, but it seems determined to die trying.

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

It's not as if EA couldn't have seen this coming. Pretty much everything that could go wrong with SimCity's launch has gone wrong. But EA was warned. A Reddit AMA with the SimCity developers made it perfectly clear how unhappy people were with the online-only requirements. SimCity's closed beta had its own issues, mainly server access (not enough of it).

But EA didn't seem too concerned and went ahead with the launch. Shortly thereafter, everything fell apart. The servers couldn't handle the demand, something which would have been less damaging if there had been any sort of offline option. Much of the processing is handled server-side (along with storage of all saved games) and if customers couldn't find a free slot on a server then they just didn't get to enjoy their $60 purchase.

The backlash was immediate. And immense. Polygon (the Verge's gaming site) lowered its original 9.5 rating to 8.0 because of the online issues. Giant Bomb gave it a rather low 3 out of 5, largely due to the fact that EA made a single player game multiplayer-only to justify its online-only DRM/"social" features. Reviewer Jonathan Cresswell handed in quite possibly the most succinct (but most telling) review of all.

Elsewhere, paying customers have expressed their displeasure. Metacritic's critic score sits at 82. The user score? 1.8. Things are nearly as bad at Amazon, where SimCity currently holds a 1.5 star rating. (The digital version is faring even worse - 1.0.) In a rather unprecedented move, Amazon has pulled the PC Download version completely, citing EA's server issues. When will it be back? Amazon says: "We don't know when or if this item will be available again."

Other game retailers have pounced on the opportunity provided by EA's colossal blunder. GOG tweaked EA with a tweet pointing out that DRM-free SimCity 2000 doesn't require an internet connection (and is only $5.99), resulting in a sales bump that has sent SimCity 2000 to #3 on the "Top Sellers" chart. Another Redditor suggested Steam follow suit and kick off an "offline-capable city sim sale," featuring non-online-only city sims with new deals arriving each day "until SimCity is playable."

EA, for its part, is working hard to add capacity, but much of the effort seems a bit too late. The damage has already been done, and EA has destroyed a lot of gamer goodwill, something it really doesn't have in excess. As part of the effort to extinguish these self-inflicted fires, EA is now shutting off "non-essential features" to ease the server load. One of the first to go is "cheetah speed," the fastest simulation setting. This may do exactly what EA hopes it does (free up servers), but it is going to piss off even more customers, as Kyle Orland at Ars Technica points out.

Presumably this is to give the servers more time to process the thousands of simultaneous city simulations that are all feeding into its global and regional networks. In any case, this is a core piece of the gameplay that's now being hampered by EA's continuing server problems; in my 16 or so hours playing the game, I'd estimate 15 or so have been spent running at Cheetah. Slowing things down, even temporarily, is likely to impact a whole lot of players negatively.

Whether or not this backlash/implosion will hurt EA in the long run remains to be seen. It has made no secret of the fact that it wants all of its games to eventually have some sort of "online component," if for no other reason than to (slightly) impede piracy and eliminate second-hand game sales. The odds are that EA will continue to push the online requirement, passing the costs of any outages along to the customers in the form of useless purchases and higher game prices.

Some gamers are attempting to push back. A petition has been started at change.org requesting EA remove "online only" requirements from SimCity (most likely impossible, but...) and future games. It's well on its way to hitting 25,000 signatures in less than 24 hours (and should be well past that by the time this hits the front page), which should give EA some idea how many people are displeased with the SimCity debacle.

It's not completely unheard of for AAA developers to reverse course on onerous DRM (Ubisoft, for one), but EA didn't become one of the most hated companies in America by catering to the whims of its customers. If nothing else, gamers can take heart in the fact that other developers will view this as a cautionary tale, rather than a blueprint for success.

Now, if you're still waiting for an open server slot, why don't you kill a little time with the included Solitaire game? (Image by Redditor PainLing)

For many, many years, we've discussed the problems of UK defamation/libel laws, which basically put the burden on the accused, and are very broadly applied. They've also given rise to cases of "libel tourism," whereby people sue in the UK for statements made online, even if neither party is in the UK. The chilling effects on speech in the UK have been quite massive, with the case about Simon Singh being one of the most prominent. Singh wrote some columns challenging some unsubstantiated claims by the British Chiropractic Association, and got hit with a massive libel suit in response. And since the burden is on Singh to prove it's not defamation, it's an incredibly difficult position to be in. Thankfully, the BCA eventually abandoned that case due to massive negative publicity, but it still highlighted the problems with UK defamation law and how it could be abused to create chilling effects on speech.

Of course, fixing the problem has been a long and ongoing process as well, with various defamation reform packages proposed, but never getting anywhere. It had looked like the latest proposal might finally have a chance of passing... but that may now be scuttled due to a different controversial idea that has been attached to the bill.

As you may recall, after the News Corp. phone hacking scandal, the UK set up a commission on "media ethics" to explore issues related to preventing such scandals from happening again, and tragically, the recommendations included heavy regulation for the press. The rules go way overboard if you believe in freedom of the press, and really seem more designed to prevent rich and famous people from being embarrassed by the press, rather than stop egregious ethics violations.

So, here's the problem. The defamation reform package was moving forward nicely, when some politicians decided to basically lump a "Leveson Amendment" onto the bill, so that the UK is now faced with an unfortunate tradeoff. They could fix the broken defamation laws, but would have to do so at the cost of giving up basic press freedoms. It's unfortunate that UK politicians, apparently led by David Puttnam, have put others in the position of having to make that kind of ridiculous tradeoff. A functioning democracy that believes in free expression should support both a very limited defamation law and protections for a free press. Asking people to trade one for the other is really quite a travesty.