So we just wrote about how CEA had taken away CNET's ability to name the "best of show" product at CES (then re-named the Dish Hopper with Sling as the Best in Show as CNET staff had originally intended). Somewhat surprisingly, given the publications' reluctance to say too much about all of this so far, CNET, itself, reported the story, talking about itself in an almost creepily bland manner, and never even noting the oddity that it is reporting on itself. However, one tidbit stands out: See that byline? It just says "CNET News staff" rather than naming whoever wrote it. I cannot recall ever seeing that before on CNET. At the very least, it raises some questions. Is this a form of a "byline strike" that some journalists have used to protest management practices at other publications? Is it CNET cowardice in reporting on stories that reflect poorly on CNET? Is it a random cry for help among CNET reporters, blinking furiously as a signal to the outside world, while trapped inside their CBS-imposed-editorially-compromised prisons, letting us know they're alive and want out? I'm betting on that last one.

As you may or may not recall, last year, pretty much all the TV networks sued Dish Networks over a new feature it had launched, PrimeTime Any Time (PTAT), with its Autohopper technology on its DVRs. PTAT is where it would automatically record all the major networks' prime time programming and hold onto it for a bit. Autohopper would then automatically skip over the commercials. It's important to recognize that these features, on their own, have been considered legal. VCRs had auto commercial skip ages ago and DVR technology (time shifting) has been called fair use plenty of times. Given that, the lawsuits aren't going well so far.

But, in a moment of pure stupidity, some very short-sighted suits at CBS made a really silly decision. As you may or may not have heard, CES -- the massive consumer electronics show -- has been going on all this week in Las Vegas. I just got back from there myself. At the show, Dish announced another merging of some of its products, adding its Slingbox (who they bought years back) to the same basic setup. Slingbox, of course, is for "place shifting" what the DVR is for "time shifting." You hook it up to your TV and it lets you access what's playing on your TV via the internet (so, via your computer, phone or tablet). It's hardly surprising that this is where Dish was heading.

And... the early reviews and buzz were definitely strong. For example, CNET wrote a glowing review in which executive editor David Carnoy suggested it may be the best DVR out there these days. The CNET crew liked the thing so much that they nominated it for their "Best of CES" award. And... then the suits at CNET parent company CBS noticed. And suddenly they told CNET that it had to remove the Dish Hopper with Sling from consideration for the Best of CES award and that it was no longer allowed to review any Dish products. CNET editors appended the following note to their review:

Editors' note: The Dish Hopper with Sling was removed from consideration for the Best of CES 2013 awards due to active litigation involving our parent company CBS Corp. We will no longer be reviewing products manufactured by companies with which we are in litigation with respect to such product.

This is monumentally stupid, for a variety of reasons. Let's see how many we can come up with.

1. Hello Streisand Effect. There were approximately one gazillion articles this week about products coming out of CES, and the place was wall to wall with journalists -- probably half of whom were coming up with their own "best of" lists. Most people were completely saturated with CES stories and would barely glance at such a story. Except... now, tons of people are suddenly finding out about this awesome Dish DVR, the Hopper with Slingbox. In fact, they're hearing that the damn thing is so good that CBS is trying to block any news of it from getting out. Talking about increasing the awareness... I have no clue whatsoever what product CNET -- or any other publication -- awarded "best of CES" to. But I sure as hell am well aware of Dish's new DVR.
2. Goodbye to the wall that separates the suits from the journalists at CBS/CNET. CBS execs have just confirmed that they don't want their journalists and reviewers to cover things based on the merits, but rather on what it means for their corporate masters.
3. Hello slippery slope. Is it really that hard to see where this heads next? Is CNET still allowed to report on the lawsuit if CBS loses? If they can't talk about the products, what about the legal issues themselves?
4. Goodbye journalists with credibility. Frankly, CNET has always had some of the strongest tech reporters in the business. For many years I've considered it one of the top tech news sites out there. I have tremendous respect for many of the reporters there. But, now I have to wonder how much the suits are interfering with their ability to report things accurately.
5. Goodbye to principled journalists who want to work for CBS. If I'm a journalist at CNET right now, I'd be seriously considering quitting in protest. This move seriously harms the brand and reputation of the site, and this is the kind of thing that journalists should stand up against. Having the suits interfere with what they can write about is generally seen as a massive offense to journalists. I would bet this leads to some of the best, most principled CNET reporters jumping ship to elsewhere.
6. Good luck to CNET hiring new journalists. Who wants to jump into that toxic situation?

CBS's suits should have kept quiet and not interfered with the news side of the business. They had to know that this would backfire in a big bad way. And, if they didn't know that, they deserve to lose their jobs for being pretty clueless about things that matter.

Of course, they were probably thinking that Dish would likely use the reviews from CNET as evidence in the lawsuit, which very well may be true (and could still happen since the review did go out). But it's not hard to get around that, since the legal impact of a single review is near zilch. In the end, they didn't stifle the review, they made it more well known. They didn't do anything that helps them in their lawsuit. And they're left with an undoubtedly pissed off set of journalists who may now question how free they are to actually report the news.

Whoo boy. Back in 2009, we were somewhat pleasantly surprised to hear the general counsel for the NY Times, Ken Richieri, speak out on Doug Lichtman's IP Colloqium podcast (which, sadly, appears to have gone away), going somewhat against the grain of other news publishers on the issue of fair use. Lots of news companies were up in arms about "aggregation" by other providers, but Richieri noted that he was a much stronger believer in fair use than some of his colleagues, in part because he realized that newspapers often have to rely on fair use themselves. However, either he wasn't paying that much attention to the latest kerfuffle, or he's changed his stance. Earlier this week, the NY Times sent a copyright complaint to Quartz (the horribly designed, nearly unreadable spinoff from The Atlantic). The issue? A story on Quartz that highlighted their favorite charts of 2012. It's a nice bit of aggregation, with a small version of the graphics, some praise for the original publisher and a link back to the full thing. Here's what Quartz had to say (and show) about the NY Times graphic:

Obama’s chances, deconstructed

What an awesome utility. I spent all evening on the day of US election glued to this thing, answering my own what-if questions, watching different branches disappear as different states were projected. I love how the graphic takes a problem that’s way too crazy for mental math—the combinatorics of electoral outcomes in swing states—and makes it tractable, not by simplifying it, but by providing a way to explore the complexity. —Ritchie King

High praise. But, according to a lawyer from the NYT's... infringement:

While we are delighted that Mr. King found the graphic so admirable, I must point out that The Times owns the copyright in the graphic and the current posting infringes The Times’s rights under U.S. Copyright law. Accordingly, we hereby demand that you immediately remove the graphic from qz.com and cease and desist from any further use of any New York Times content in any manner whatsoever.

In response, Quartz is sticking to their guns. They did add the phrase "from the NY Times" after the link to the blurb, but they're arguing that it's clearly fair use. The NYTimes position here is really, really stupid, for many reasons. Here are just a few:

1. The NYT's original graphic was interactive. That's what made it so special. It was useful for those trying to figure out the probabilities and what needed to happen for either major party presidential candidate to win on election night.
2. In no way, shape or form, does this use take away from, compete with or diminish the NYT's successful graphic. It was a single screenshot of the original interactive graphic, not the full interactive thing.
3. That graphic, as amazing as it was, was really only "useful" leading up to the election as people were trying to understand the route to the Presidency. It might also be useful after the fact as a historical look at the situation, but, again, it can only be used in that way on the NYT's site. The screenshot isn't useful in that manner at all.
4. Quartz's use could only serve to drive more attention and traffic to the NYT's by highlighting what an awesome job they did with the graphic (which they did). In fact, other publications had no trouble recognizing the valuable publicity. Bloomberg publicly thanked Quartz for including one of its graphics.
5. The use was almost certainly fair use from almost any angle you look at it. It didn't harm the market for the NYT's original graphic. It didn't use the whole graphic. It was used for the sake of news reporting.
6. As noted at the beginning, the NYT itself relies heavily on fair use at times, and arguing against it can only come back to bite the company at some point in the future.
7. But, most of all, this makes the lawyers at the NYT's look petty and vindictive for no good reason.

If the NYT were smart, it would issue an apology, saying that they got a little jumpy on the legal cease-and-desist trigger, and that it appreciates the publicity.

Oh, and in case they decide to go in the other direction, our use of the same image above is doubly a case of fair use, because the NYT's actions have now made that blurb and screenshot a specific news item itself, and it would be impossible to discuss the copyright/fair use/stupidity issue without including the graphic to explain what was going on.

Every few months, it seems, we hear about yet another attempt in Europe to implement the absolutely ridiculous idea of the "right to be forgotten." We wrote about it in 2010, 2011 and again earlier this year. It's a silly idea for a variety of reasons. The general idea is that someone, say, who has committed a crime, but is then rehabilitated / served his time / whatever, deserves a "fresh start" and the stories of the crime and punishment should be erased from publications. Europeans who support this wacky idea argue that it's a form of a privacy right. But that's ridiculous. It has nothing to do with "privacy" at all, as the fact that someone committed and convicted of a crime is a public fact, not private info. Telling people (and publishers) that they can't talk about factual information, or even leave available factual stories written at the time just seems completely offensive to anyone who believes in the basic idea of free speech.

And, of course, there's an even bigger problem. The whole idea isn't just silly and complex, but it's totally impossible. And it's not just me saying that. As Stewart Baker points out, the European Network and Information Security Agency (ENISA) has put out a report making the basic impossibility of a "right to be forgotten" quite clear:

Consider Alice viewing Bob’s personal information on a computer screen, while she is allowed to do so (i.e., before Bob has invoked his right to be forgotten). Alice can take a picture of the screen using a camera, take notes or memorize the information. It is technically impossible to prevent Alice from doing so, or even to recognize that she has obtained a copy of Bob’s personal data.

They seem to make that clear just by the image they chose to put on the cover of the report: That said... given the very admission that this is impossible, you'd think the recommendation would be (perhaps) to find something a little more productive to work on. But, no, that would be wishful thinking. Instead, despite the admission that the whole endeavor is doomed to be a failure for the simple fact that it's impossible, they still discuss ways that it might be implemented. And their ideas? Well, to double down on the impossible with crazy regulations. Take for example, the following two "recommendations" in the final section, one right after the other:

• For any reasonable interpretation of the right to be forgotten, a purely technical and comprehensive solution to enforce the right in the open Internet is generally impossible.
• A possible pragmatic approach to assist with the enforcement of the right to be forgotten is to require search engine operators and sharing services within the EU to filter references to forgotten information stored inside and outside the EU region.

Got that? So it's impossible, but let's regulate the hell out of search engines and tell them what they can't link to. Perhaps if they'd stopped after the point at which they determined it was "impossible" we'd all have been better off.

I'm always amazed at what people who run sports teams think will draw away people's interests. For years, sports teams have tried to make it more difficult for people to get information about sports other than by attending games lives directly. They've tried instituting blackouts (especially if games aren't sold out) for local TV, sued services that (accurately) report scores in realtime and many other things all of which seem to be based on the ridiculous belief that if people can get some info about a game from another source, they won't actually want to go see the game. This, to put it simply, seems really stupid, and shows little understanding of how sports and fans work. Sports fans love the sport and would like to see it live when they can, but when they can't, those alternatives offer a way to keep them connected and keep them interested.

This "can't give away too much" attitude has gone past just broadcasts of the game directly to the way that sports teams and leagues seek to control reporters and what and how they report. While they can't legally tell them what they can and can't do, they do have control over who they provide press passes to -- and then threaten to pull those passes if they disobey "the rules." These rules often seem focused on the same kind of "restrictions" in hopes of getting people to show up live, even if that's impossible.

Thankfully, these rules rarely seem to be enforced, but the University of Washington recently instituted a "Live Coverage Policy" for credentialed reporters that says they can only provide a maximum of 20 "in-game updates." A reporter for the Tacoma News Tribune, who was live tweeting a recent game, was reprimanded for going over his allotted 20 tweets and daring to go all the way up to 53. Not surprisingly, the reporter, Todd Dybas, then Tweeted about the reprimand:

Also, tonight I was reprimanded by the University of Washington for tweeting too much during a live event.

— Todd Dybas (@Todd_Dybas) November 12, 2012

It's not even a case where the policy is just outdated. Apparently the policy is brand new. I'm amazed that someone (or some group of people) in charge here actually think that someone providing a bunch of live tweets will somehow take away from other forms of coverage available. However, if I'm the Tacoma News Tribune (or any other publication) the first thing I do is suck it up and send a reporter to buy a season pass so that they're not at the whims of some ridiculous policy, and let them cover the games however they want via Twitter. Either that, or (better yet), ask for volunteers already attending the game to be the designated live tweeter for the game.

Recently, the New York Times had a trend piece about the Thiel Fellowship program. The program is very interesting, and I was hoping to garner some insight into its success. However, I was left severely disappointed at the lack of any critical examination of the program, which is still quite controversial. The whole piece read like a PR blast. For instance:

1. The program encourages high achieving individuals to skip college in exchange for $100,000 over two years of fellowship grant, plus access to Thiel's network. While many projects discussed in the article were interesting, there was virtually no information about the sustainability of any of these projects or whether or not the fellows had achieved any academic success - such as publications - or business success.

2. The article entirely omitted any examination of the fact that Thiel himself has an undergraduate degree from Stanford and a law degree from the same -- this was relegated to a parenthetical. Surely some examination into this seeming contradiction is merited.

3. Similarly, the article totally failed to examine the fact that, at best, this program can really only be successful in a narrow slice of fields -- computer software being the largest. For applied sciences generally, however, and especially engineering and medicine, you simply cannot be an autodidact and a viable career candidate - I'm not allowing someone without an MD to replace my hip, and I'm certainly not allowing someone without engineering qualifications to design my hospital. Too many professional organizations, professional licenses and research areas require formal schooling for this model to be scalable in our most key STEM disciplines. And yes, clearly some fellows are studying applied engineering, such as solar cells, or going into biotech, but there was no critical examination in this article, whatsoever, of whether it is feasible to be an autodidact in these fields, which typically require years of graduate level tutelage, even for students well into the genius range. For instance, there was a story about a fellow who was studying gerontology and having great difficulty raising funds - is this, perhaps, because a serious VC is not willing to give funding to someone in this field who does not have an MD or equivalent bio degree? I know when raising money for tech startups, VCs frown upon so-called "non-technical" founders - I'd be very surprised if this was not also the case in biotech and electrical engineering.

4. A huge part of Thiel's argument, from what I gathered, is that the network he introduces his fellows to is a large part of the importance of the program. This article seems to be ignoring the fact that, for the vast majority of us, including Thiel himself, these networks are actually formed at institutions of higher learning.

5. The biggest indicator, I think, of the laziness of this article is that the lede is about a student who left Princeton to become a Thiel Fellow, and the "cost" of Princeton was not even the primary factor in this decision. I should certainly say so. Choosing a Princeton student is an exceptionally poor example, as Princeton is renowned for having possibly the best financial aid department of elite American schools, excepting the military academies. Princeton was the first school to completely eliminate student loans as of 2001, and they give extremely generous aid packages. So, from the very get-go, the author's credibility was sincerely lessened in my eyes. Additionally, the statement that this article is being written "[a]t a time when the value of a college degree is being called into question..." is highly cynical and glib. What is being questioned is whether colleges are teaching the right things and whether the current college model is appropriate for all students, or if more alternative forms of higher learning need to be explored. What absolutely no one questions is that college degree holders outperform college dropouts, high school graduates, and especially high school dropouts across a wide spectrum of important metrics, including not only lifetime income, but health and divorce rates. This American Life has an interesting and tangentially related piece on the lasting impact of education on young people this week. Fundamentally, the debate is not whether higher education is unnecessary, it is about how higher education can more fundamentally meet the needs of different types of learners and address growth fields in the economy.

So, New York Times, I'd love to see you take a second shot at this. I'm deeply interested in alternative education methods, however, this article was entirely uncritical. It was a fluff piece that, somehow, made the A1 Sunday Headline online -- which baffles me.

Instead of merely talking about how fantastic the fellows are (I'm sure they are), how exciting the program is (I'm sure it is), or what a fascinating iconoclast Mr. Thiel is (this goes without saying), let's see some critical examination of this program. It has been going on long enough that we should be able to see some verifiable data, comparing fellows' progress to the peers they left behind in school, or, if nothing else, some success stories about gainful employment, fundraising, papers publishing, products brought to market, etc. Instead, this seems like a retweet of corporate PR.

Last week, the British policeman Simon Harwood was acquitted of killing a man during the 2009 G20 protests in London -- a controversial verdict given the video footage of the incident. In order not to prejudice their views, the jury was not informed that Harwood had been investigated a number of times previously for alleged violence and misconduct.

As a result of that requirement to withhold information about the earlier allegations, Associated Newspapers, which owns the Daily Mail, was found by a British judge to be in breach of the strict liability rule of the UK's Contempt of Court Act because of two stories about Harwood that it continued to hold in its archive, as this Press Gazette post explains:

Both articles were published in 2010, and had been available on the Mail Online archive since then, but only if a would-be reader actually searched for them, either on the website itself, or via a search engine.

The judge nonetheless held that the Mail Online was in contempt of court because of his interpretation of a key section in the relevant legislation:

Mr Justice Fulford held that the phrase "at the time of the publication" actually "encompasses the entire period during which the material is available on the website from the moment of its first appearance through to when it was withdrawn".

The only way to avoid this problem would be for online news archives to remove articles from their holdings in advance of future court cases. But it's hard to see how this can possibly work when applied to every case across the UK. Either the search for relevant materials will be quick and superficial, and therefore run the risk of missing articles; or it will be so slow and laborious as to render it impractical. Some owners of news archives may decide it's not worth it, and simply withdraw access altogether; that would be a highly regrettable consequence of this ruling, and a real loss for everyone.

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

We hear over and over again from traditional reporters how we need to "protect" newspapers and how, as newspapers fail, no one can step in and replace them -- especially not "new media" like blogs. In fact, we're told how newspapers are "trustworthy," but blogs are "amateurish" and prone to hyperbole and errors. It's a common story told over and over again -- especially by those supporting the idea of paywalls and the like. In fact, we wrote about yet another such example just recently. And yet... it seems that we just as frequently hear about newspapers making big mistakes, and blogs stepping in to correct them.

Today's example involves the supposedly venerable Wall Street Journal, who posted a column by former publisher L. Gordon Crovitz, trying to claim that the internet was really invented by private companies, without much government support. Except, of course, that's false. Ridiculously false. Thankfully, we had blogs to step in and debunk many of the factual errors made by Crovitz. Quickly into the breach stepped Steve Wildstrom at Tecpinions, who pointed out that Crovitz's version of history was way off and then Tim Lee at Ars Technica, who went even deeper in showing how Crovitz mangled the history.

Among the many, many errors in Crovitz's piece were the claims that Tim Berners-Lee (no relation to Tim Lee above) "invented hyperlinks." He did no such thing. He invented the web, which came long after hypertext and hyperlinks were well known and well-established. He also tries to downplay Arpanet, and worst of all pretends that because Vint Cerf (with Bob Kahn) invented TCP/IP, that it shows it was done without the government's help. He, of course, leaves out that both were employed... by the government. It also plays up the importance of ethernet, invented at Xerox PARC. This was a big deal (and I even have a photo of the first ethernet connection that I recently took on a tour of PARC), but that was for local networks and not "the internet."

To be fair, this is the opinion pages, not the reporting pages, but the WSJ is supposed to have a pretty high bar for getting facts right, isn't it? And I would assume that applies to the opinion pages as well. Of course, what's interesting is that Crovitz has a history of this kind of thing. A couple years ago, we wrote about another piece by him which misattributed a quote of mine to someone else's and then took three days or so to post a correction. This Crovitz piece has added one correction at the time of my writing this, but only for (another) misattributed quote (Crovitz apparently didn't realize that he was quoting a blog post by Tyler Cowen quoting someone else and attributed it to Cowen). Everything else is still in there.

Of course, even more ironic in all of this is that Crovitz helped found Journalism Online -- one of the leading companies pushing newspapers to set up paywalls, arguing that newspapers need people to pay, or all good reporting will go away. Everyone makes mistakes. It's not limited to either newspapers or blogs. I don't mean to pick on Crovitz or the WSJ in particular here (even though the mistakes in his piece were both plentiful and easily cross checked). It's just that the idea that newspapers have some sort of "lock" on factual, objective reporting -- whereas newfangled "blogs" are chock full of misinformation -- is an inaccurate position. Yes, there's plenty of misinformation spread on various sites, but the same thing shows up in "traditional" media too. The point is that the wider ecosystem seems to be pretty damn good at highlighting those mistakes (even if the WSJ is then very slow to correct them).

TorrentFreak has the story of how media company Central European Media Enterprises apparently is using highly questionable copyright claims to censor a YouTube video of someone criticizing CEME's reporting on copyright via their BTV channel. This is happening in Bulgaria, where the company put on a TV show "investigating" two popular BitTorrent trackers, Zamunda and ArenaBG, that are based in that country. Apparently, the report was heavily biased in one direction:

The show went on to press the one-download-one-lost-sale mantra, suggested that a “3 strikes” regime should be considered to deal with infringement, and criticized local ISPs for providing high-speed connections used for pirating.

BTV also claimed to have contacted the operators of Zamunda so that their side of the story could be heard, but a source close to the site told TorrentFreak that after initially making contact and getting Zamunda’s attention (just 3 days before the show was aired), the show failed to respond to further contact from the site.

The end result, critics say, was an ‘investigative’ report biased towards rightsholders at a time when bTV is not only promoting its just-launched Voyo PPV service, but simultaneously running an anti-torrent site campaign of its own.

You can see why this might draw some criticism. Another journalist, Ivan Stamenov, did a rebuttal video, which he posted on YouTube, entitled "BTV and torrents: Shock Dose of Ignorance." BTV's response was to issue a takedown, claiming copyright. He does admit that there is a piece of the video that shows the BTV logo, but he insists that's about the only thing that might be infringing (and that would actually be trademark, not copyright). Either way, it seems pretty clear that this takedown has little to do with the copyrights (though it may have plenty to do with the fight over the concept of copyright), and was very much focused on trying to silence a critic.

One of the general tenets of white hat security hackers is that when they find a vulnerability they alert the company first and allow them to fix things before they reveal the details. But what if it's impossible to reach anyone at the company? That Anonymous Coward points us to a recent case of someone discovering a serious zero-day vulnerability at American Express... and not only not not being able to find anyone to contact, but also being told that the company would pay more attention to him if he were a cardholer:

To my great surprise American Express doesn’t allow anybody to contact them. Instead, you’re sent through their ten-year-old copyright noticed website’s first line support jungle to be attacked with questions ensuring that you’re a paying customer. If you’re not then you might as well not bother, unless you feel like speaking technical advanced 0day vulnerabilities with incompetent support personnel either through Twitter direct messages or phone. They will leave you no option of contacting them in a manner that circumvents any theoretical possibility they may have of boosting sales numbers.

The only acceptable contact methods that I found on their site were telephone, fax or physical mail to some typoed country called Swerige. I figured none of them were suitable for 0day reports and decided to turn to Twitter and ask for an e-mail address or some other modern protocol.

As TAC mentioned in his submission, perhaps black hat hackers are merely white hats who got tired of the muzak on hold...