As Techdirt stories regularly report, governments around the world, including those in the West, are greatly increasing their surveillance of the Internet. Alongside a loss of the private sphere, this also represents a clear danger to basic civil liberties. The good news is that we already have the solution: encrypting communications makes it very hard, if not entirely impossible, for others to eavesdrop on our conversations. The bad news is that crypto is largely ignored by the general public, partly because they don't know about it, and partly because even if they do, it seems too much trouble to implement.

The CryptoParty movement hopes to do something about that by inviting people to come along to informal meetings to learn about crypto, how to install it and how to use it in everyday computing in order to strengthen their privacy and protect themselves from surveillance. The driving force behind the idea is the Australian digital rights activist Asher Wolf, well known on Twitter. The specific impetus came from approval of the Cybercrime Legislation Amendment Bill 2011 by the Australian Senate. Here's what it will do, as explained on the academic blog The Conversation:

The bill effects changes in the Telecommunications Act 1997 and Telecommunications (Interception and Access) Act 1979 and will force carriers and internet service providers (ISPs) to preserve stored communications, when requested by certain domestic authorities (such as the Australian Federal Police), or when requested by those authorities acting on behalf of nominated foreign countries.

This means a warrant will be needed before the police or security agencies can force carriers or ISPs to monitor, capture and store website use, data transmissions, voice and multimedia calls, and all other forms of communication over the digital network.

That's not quite as bad as mandatory logging of all online activity, but the Australian government is working on that too, as are many other countries. Against that background, the idea of self-organizing parties introducing people to the world of crypto spread rapidly around the world, as the wiki page listing past and future events indicates. One party, in Berlin, led to a new, complementary project: a manual on crypto for beginners:

The CryptoParty Handbook was born from a suggestion by Marta Peirano and Adam Hyde after the first Berlin CryptoParty, held on the 29th of August, 2012. Julian Oliver and Danja Vasiliev, co-organisers of the Berlin CryptoParty (along with Marta) were very enthusiastic about the idea, seeing a need for a practical working book with a low entry-barrier to use in subsequent parties. Asher Wolf, originator of the CryptoParty movement, was then invited to join in and the project was born.

This book was written in the first 3 days of October 2012 at Studio Weise7, Berlin, surrounded by fine food and a lake of coffee amidst a veritable snake pit of cables. Approximately 20 people were involved in its creation, some more than others, some local and some far (Melbourne in particular).

The well-known "book sprint" approach was used, together with open source software, and the final result was released as open content under a cc-by-sa license:

The facilitated writing methodology used, Book Sprint, is all about minimising any obstruction between expertise and the published page. Face-to-face discussion and dynamic task-assignment were a huge part of getting the job done, like any good CryptoParty!

The open source, web-based (HTML5 and CSS) writing platform Booktype was chosen for the editing task, helping such a tentacular feat of parallel development to happen with relative ease. Asher also opened a couple of TitanPad pages to crowd-source the Manifesto and HowTo CryptoParty chapters.

As might be expected with such a major project about a complex and sensitive topic put together so quickly, there has been some criticism of the results, notably the inclusion of the weak PPTP for creating Virtual Private Networks. Nonetheless, the CryptoParty movement and the associated Handbook show what can be achieved by committed volunteers coming together across the Internet in a very short time.

Of course, there's still the question of whether this project will have any major impact on the use of crypto by general users. After all, it's not as if people haven't been recommending the thoroughgoing application of encryption for everyday tasks before. As the by-now venerable Cypherpunk's Manifesto put it:

We must defend our own privacy if we expect to have any. We must come together and create systems which allow anonymous transactions to take place. People have been defending their own privacy for centuries with whispers, darkness, envelopes, closed doors, secret handshakes, and couriers. The technologies of the past did not allow for strong privacy, but electronic technologies do.

Those words were written back in 1993, and here we are in 2012, still fighting the same battles with the same tools. Will things be any different this time?

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

Artificial intelligence projects have come a long way with algorithms that can beat some of the best humans at poker and chess and a whole bunch of other games. There are still a few games that people can clearly play better than computers, but that list is getting shorter all the time. Here are just a few bots that are learning how to beat us at our own games.

• French researchers are working on software that can learn how to play a game just by watching humans play -- and their software has mastered games like tic-tac-toe and connect4. More complex games like chess are a bit too difficult, but maybe someday learning algorithms will be able to take on arbitrary games. [url]
• Playing Rock-Paper-Scissors with a robot hand doesn't sound like a particularly winnable game -- especially when the robot cheats all the time. This robot only takes about a millisecond to detect what a human hand will play, so the only winning strategy for humans is to try to come up with deceptive ways to play RPS. [url]
• A panel of judges couldn't tell the difference between a computer player and a human player in an Unreal tournament (in a strange kind of Turing test). Non-player characters controlled by algorithms are getting more and more human-like, and pretty soon humans won't even need to play video games anymore.... [url]

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

Recently we ran a post discussing Harvard Business Review's decision to go DRM-free and platform independent. The author behind the original post, Joshua Gans, suggested that HBR's ebook policy could open it up to more innovative offerings that rewarded both the publisher and the authors for selling their books through HBR:

I have my own eBook coming out with HBR Press in a very short time. I’d love it to be the case that they decided to offer the book on their site with an explicit ‘sharing’ option. For instance, the normal ‘don’t share’ this book might cost the same as Amazon while the ‘sharing’ option may be somewhat higher but would say allow you to assign ‘ownership’ of the book to another person as well.

Gans' book, "Information Wants to be Shared," is out, and true to his word (and the title), there's a sharing option. It's a good idea, but one that is easier said than done. Fortunately, HBR was up for the challenge:

Now the first, snarky remark somebody makes when you release a book about sharing information is that it is kind of hard to share eBooks...Nonetheless, I believe it was very important to take that challenge head on and, as it turned out, the folks at Harvard Business Review Press were more than agreeable to some experimentation.

The idea was that when a reader recommends a book to someone else they are performing an extremely valuable service to authors/publishers. The problem is that, while with physical books, lending between friends can perform that service, trying the same thing for eBooks makes a mockery of the technology.

Obviously, once you've taken DRM and platform dependence out of the picture, sharing can become too easy, so to speak. And while Barnes & Noble and Amazon have certain books "lending enabled," the "lending" is done in the most literal (pretty much "physical") sense, with the copy vanishing from one device and appearing on the lendee's. Gans was looking for something that split the difference between "sharing" and "recommending" which would make it easier for those on the receiving end to pick up a "no strings attached" copy of their own. Selling through HBR made the sharing part easier, but setting a price was a bit trickier, leading to this compromise:

So here is the experiment they are running. If you buy my book (the price is $4.99) from HBR directly (which is DRM free and multi-format so it can be read on any device) or if you buy it from Amazon, Apple, B&N etc, you can flip to the last page of the book. You will see there a coupon. If you send that coupon to a friend, they can download the book from HBR (and HBR only) for just $0.99 (in its multi-format DRM free form).

The lowered price should make the "second-hand" purchase a no-brainer, especially if the coupon is sent their way by someone whose opinion they respect. The advantage for Gans (and HBR) lies in the potential addition to readership and the data collected during the experiment. But even if it turns into a publisher's worst nightmare, there's still plenty to like about it.

Will this work? It is hard to know. HBR will keep stats on this and hopefully I can share them in the future. Are there risks? Absolutely. All my readers could form a collective and potentially buy one copy for $4.99 and then a million for $0.99. A disaster! Actually, no that sounds pretty darn good to me. (I won’t speak for my publisher).

As Gans notes, he'll be tracking the results with interest, and hopefully HBR will let him share the data. As the ebook field continues to grow, any information on pricing experiments will be very useful for up-and-coming writers. 

Next Wednesdy, at 11am PT/2pm ET, we'll be hosting our talk with Chris Sprigman and Kal Raustiala about their book, The Knockoff Economy, which was our September book of the month (excerpt one and excerpt two). We also wanted to get moving on October's book of the month, Hacking the Future: Privacy, Identity, and Anonymity on the Web, by Cole Stryker. Here's the first excerpt we'll be running, from the intro of the book.

I think anonymity on the Internet has to go away. People behave a lot better when they have their real names down... I think people hide behind anonymity and they feel like they can say whatever they want behind closed doors.

In July 2011, Randi Zuckerberg, then marketing director of Facebook, uttered the words above during a panel discussion hosted by Marie Claire magazine. She couldn't have anticipated the firestorm those few words would generate among those already uncomfortable with the direction the Web had taken in the preceding year.

Two years prior, Google CEO Eric Schmidt, in an interview with CNBC's Maria Bartiromo, gave the downright schoolmarmish advice, "If you have something that you don't want anyone to know, maybe you shouldn't be doing it in the first place." Schmidt, who once led an antitrust crusade against Microsoft, has claimed that Google will avoid Microsoft's missteps because the search giant faces compelling incentives to please a customer base that will seek services elsewhere the moment Google does anything shady. But what if Google's been tracking your search results for your entire life? Google, just one of dozens of companies that mines user data, knows your favorite foods, your sexual proclivities, and your medical history, to say nothing of the personal information they host in the form of e-mails and other documents. Would it be as simple as just walking away?

Before the Internet Age, computers were perceived by the public as unfeeling, literally calculating metal boxes that just might help bring about a nuclear apocalypse. As machines go, they were just as cold as their industrial-era forebears, if not more so--at least you can watch the parts move on a steam engine. At least you knew it wasn't somehow plotting against you. It wasn't so long ago that computers were seen as a dehumanizing tool of a dystopic new technocracy, imbued with the fear and existential despair brought by the Cold War's lingering sense of impending doom.

But then something changed. Today we see computers (we don't even really call them that anymore, they're mobiles or laptops or something that sounds friendlier) as being vital, almost countercultural gadgets that bring empowered individualism, collaborative communities, and, depending on whom you ask, an almost spiritual enlightenment. They're sleek and sexy. They're our salvation from a world of physical limitations and disparities. Computers help us learn, work, and connect--Facebook now claims 850 million members, a figure that eclipses the number of people who were online in 2004. Pop stars interface with tween girls on devices with names like "Razr Maxx." How did we get here? How did these calculators, manipulated by flat-topped military brainiacs in austere labs, become something so integral to the human experience that to call them an extension of the self hardly seems like an overstatement?

Surely part of the answer is technological. We all know the first computers filled entire rooms in order to accomplish the computational tasks that you can now do (gee whiz!) in the palm of your hand. Another part of the transformation has to do with design evolution of machines. An iPad is certainly much sexier than bland, beige computers that existed even a decade ago.

But more than style, cost, and convenience, more than any other factor, the simple act of linking one computer to another brought about a new stage of human social evolution, the most rapid and far-reaching in human history with the possible exception of the printing press. And it happened because a bunch of geeks in California, Massachusetts, and elsewhere in the country picked up where the military-industrial complex left off after the Cold War.

The Internet could have never been born of state decree. It's too dangerous. It's too difficult to monitor and control. It's far too unwieldy. No, something so decentralized, open, and free could only have been conceived in an environment embodying those characteristics. The military had designed a decentralized computer network equipped with routing and packet switching because they wanted the system to survive if one of its nodes was located in a city that was nuked. This open platform enabled geeks to tinker in their basements and surreptitiously fiddle with pay phones while they made fascinating new discoveries about how communications systems worked, and how they could overcome the restrictions around those systems.

Throughout the '80s we saw something truly magical, the formation of the first ad hoc virtual communities--Bulletin Board Systems. It wasn't cheap, but with the right tools and know-how, anyone could set up a BBS and start up a little nation-state that played by his rules, and if the members of the BBS didn't like it, they could go somewhere else, or start their own. It was an opportunity for people to become "as gods," in the words of Web pioneer Stewart Brand, in control of their own identities, and thus their destinies, like never before. You could be gay on the Internet and nobody could do a thing about it. You could pretend you were a cat. You could be a prince online, whether rich or poor in reality. Now we're getting to the crux of it.

Computer technology has changed many things, but the most profound has been the ability to empower individuals to redefine themselves in a social environment, to hack into their personhood, their identity, and truly become who they want to be. It doesn't matter if you're ugly or physically disabled--no one needs to know. And that freedom is contingent on the ability of Web users to take control of their identities--to be as anonymous or pseudonymous as they want to be.

At least, that was how it was supposed to work.

As the Web has developed since the '80s, it's become more lucrative for people who want to sell you things. And it follows that it's become more lucrative to become the kind of politician who pushes for regulation of the Internet so that people who want to sell you things can do so more efficiently. Meanwhile, the rise of social networks has been accompanied by an unsettling accumulation of private information, given over to corporations willingly by those who wish to seamlessly engage with the Web.

At the same time, a global network of pranksters, activists, and bullies, drawing from two decades of privacy and free-speech activism, have taken on the anti-persona of "Anonymous," donning masks and causing havoc ranging from picking on classmates to bringing down the Web sites of multinational corporations. These (mostly) smart, well-connected people from a seemingly infinite range of backgrounds and an equally diverse set of motivations see anonymity as a source of power, perhaps the most integral human liberty that can be provided in a free society. They're loosely organized, and they often clash within the group. But their amateurish disorganization mirrors the early Internet in that there's no primary control center, no head to decapitate. Similarly, the folks behind WikiLeaks have taken up the fight against control of the Web from a different angle. They're less chaotic, and thus more approachable to the media. They at least operate under the pretense of working within the law, but the threat they pose to the establishment is equally grave. Where their fathers hacked machines, these freedom-loving network natives are hacking the media, politics, and, most important, the self, in dynamic and unpredictable ways.

It made sense that the Internet would become a battleground between the haves and have- nots, with information as the currency involved, whether personal or political. What we've seen in 2010 and 2011 is that the Internet isn't quite as locked-down as power brokers thought, and people weren't going to give up control of the open Internet without a fight.

That the Internet evolved the way it did almost seems like an accident. It spilled throughout the globe. In many ways it upends traditional power structures, encourages unlikely alliances, and spreads knowledge and hope for a better world. Governments and corporations may be able to sway the gavel, the sword, the coin, but the individual controls the wires, wrangling technology to conduct asymmetrical warfare, continuously evolving new ways to wrest control from the historically powerful.

The Web will continue to see warfare in the coming decade. Its primary battleground will be the identity space. Your ability to define who you are as a human, to be as open or as private with your personal information as you want to be, to speak out against injustices anonymously, or to role-play as someone you wish you were--these are the freedoms we will fight to keep. Will you decide who you are or will you be defined by the identity brokers?

On the face of it, we recognize cyber bullying, faceless slander, and data theft to be universally recognized evils, and we should therefore do what we can to mitigate them. The simple, obvious solution is to force everyone to wear a name tag in cyberspace, so that everyone is responsible for their actions online, just like in the real world. Evildoers use anonymity as both a shield and a weapon. If we rob them of both, we'll have less evil.

My position: It's just not that simple. Throughout Hacking the Future I trace the rich heritage of anonymous speech in a free society and examine its most popular current manifestations. I explore the bits and bytes behind the argument. I use the technology and come face-to- face with unspeakable evils in dark places I'd prefer never to return to. I consult the men who shaped the Internet and the soldiers toiling in the trenches of network security who intimately recognize the terrifying potential of the Wild Wild Web daily. I talk to code breakers, whistle- blowers, researchers, hacktivists, and mothers.

This book is essentially a 137-page rebuttal to Ms. Zuckerberg's comments. Her attitude is shared by many within the tech industry, and even more outside that universe. I wanted to figure out if it's worth living with anonymity on the Internet because I believe, without a doubt, that the Internet is the most important tool we have for promoting liberty. The identity issue may be the most crucial decision we face in the coming decade.

The Web is being pulled in two directions. In the worst fears of free-speech advocates, the Internet becomes tightly regulated and real-name identities are enforced, such that everything you say can be traced back to you. The reverse dystopia is a lawless frontier, where cyber terrorists, pedophiles, and information thieves run free. The decisions that lawmakers and CEOs make today regarding the privacy of Internet users will determine the way the Web looks in the future. As the "real world" and cyberspace become increasingly intertwined, society has yet to determine if it wants the Web to be an electronic extension of one's off-line life or something entirely different.

History teaches us that representatives of copyright holders will complain about any new development in information or communication technology and try to stop or limit its use. Well, it is no surprise then that, over in the UK, the Federation Against Software Theft (FAST) is claiming that existing, already far-reaching copyright enforcement measures in the not-yet implemented Digital Economy Act (DEA) will be rendered useless when the new 4G mobile phone network rolls out. The 4G mobile phone networks has been anticipated with much fanfare and will provide mobile broadband speeds, which are many times faster than the 3G network we have become used to in the UK. According to FAST, mobile users and operators now also need to fall within the scope of the controversial DEA.

In a recent Techdirt post about the DEA, Glyn Moody finished with the sentence "The longer the great Digital Economy Act farce drags on, the more absurd it becomes from every viewpoint." With FAST's claims, the debate is set to continue, and yes, it will become more absurd. Here's a short recap of DEA before we see how history repeats itself when its lessons are ignored:

• The DEA was hastily passed at the end of the last UK Parliament's term to "combat piracy", or whichever rhetoric was used this time.
• The act initially proposed to block websites and disconnect repeat infringers of copyright in a graduated response type system, or otherwise limit internet access. Customers may also be taken to court because ISP's would be obliged to disclose personal information of their customers.
• The scope is limited to the largest ISP's in the UK, which covers about 93% of its citizens.
• The implementation of the DEA has been delayed due to heavy criticism. Some of these ISP's went to court about the hefty costs which need to be made to enforce copyrights online.
• Some provisions, such as the blocking of websites at the ISP level, have since been scrapped. This was not met with much resistance from rights holders, as they already had their Supreme Court precedent set with the blocking of the Pirate Bay.
• More specifics about this piece of legislation can be found around the internet, but as a final point it must be mentioned that -- surprise surprise -- the whole impact assessment of the act was based on highly inflated and controversial figures with bogus methodologies, provided by private stakeholders.

Let's dive into the claims of this most recent attempt to attack the technology as legacy players try to stay relevant. Of course, every time they do this, they discover that they're on the wrong side of innovation. Again. And, all too often, the goals of these groups run entirely contrary to the real wishes of those they claim to represent. Julian Heathcote Hobbins, General Council at FAST, states the following:

The DEA has the potential to be a valuable piece of legislation in the fight against illicit peer-to-peer copyright infringement and a significant development for rights holders as an educational programme. However, the DEA must remain timely. The issue is that by the time the DEA is finally implemented, technology could have moved on so far making the Act ineffective in helping to deal with those using 4G networks to share files. In its current form the DEA is not sufficiently flexible in scope to account for advances in technology.

Another representative, Jonathan Cornthwaite, a lawyer in London and member of FAST's Legal Advisory Group, then goes on to state:

[...] As we are now witnessing, technology does not stand still and gaps are appearing in the DEA as the use of mobile devices accelerates. Unless this situation can be remedied, it may be of less assistance, leaving rights holders with a watered down remedy.

It is fascinating to see these representatives finally realizing that regulation will not be able to keep apace with technological developments, where innovation happens at internet speed. They are right in stating that legislation must be flexible to stay timely and to move with technological and societal advances, which are indeed moving at an unprecedented pace.

However, they fail to think through that it may not be the enforcement side, but actually that the copyright system lacks social legitimacy because it is out of date and out of touch with how we now live in media. The approach chosen by these representatives leans more towards a permission innovation society as identified by Mike in a recent post, where former Register of Copyrights, Ralph Oman, expressed that he feels any new technology should have to apply to Congress for approval, before it is allowed to exist. Instead, we should follow the sensible part of Mr. Heathcote Hobbins and Mr. Cornthwaite's analysis and make the underlying copyright system timely and flexible so it takes into account technical reality, which, indeed, does not stand still.

A group of UK mobile operators have branded their 4G service "Everything, Everywhere" (EE), indicating they understand what consumers want: all media available at any time in any place. This does not directly mean consumers want media for free. Most are willing to pay for access, especially when the service purchased offers them the ability to use works without undue restrictions. A line can be drawn as to which uses are permissible and which are not. However, if restrictions inhibit normal media usage as consumers expect it, and penalties include disconnection, throttling or otherwise limiting the promise of the super-fast paced mobile internet experience, copyright will further lose social legitimacy and work-arounds will be found.

France's graduated response scheme -- HADOPI -- has already failed miserably, thereby proving the critics right that such a scheme is not workable nor desirable with regards to media sharing on the internet. Why then push for a very similar DEA anyway? Give it another go in a new country, hoping for different results? Apply it to new technology and hope the criticism will go away? To quote Einstein: "Insanity is doing the same thing, over and over again, but expecting different results."

When we wrote about the US judge in the Megaupload case siding with the US government in saying that, even without being able to technically serve the company (since it has no presence in the US), the criminal case could continue, we assumed that Megaupload would appeal. But even before appealing, the company is asking the judge to reconsider, based on an earlier request and the judge's own comments. The issue is that the judge's ruling only focused on whether or not the charges against Megaupload (but not the individuals charged in connection with the company) should be permanently dropped over the lack of service (in legal terms, it would be about having the charges dismissed "with prejudice"). However, the judge did note that perhaps it would make sense for the charges to be dropped without prejudice -- meaning that they would be dropped temporarily -- until such time as Kim Dotcom was extradited to the US, and could then be served as an "alter ego" for the company itself. The judge did not rule on that, however, since (he claimed) Megaupload had not asked for such a temporary dismissal.

In response, however, Megaupload quickly filed a motion reminding the judge that they had, in fact, suggested dismissal without prejudice back in July, quoting the transcript during oral arguments, which also points out why due process suggests this is the only proper result for a company that has effectively been killed and has no recourse since it hasn't truly been charged yet:

THE COURT: Well, that—can I require them to serve the company on any particular date? There's no date in the rule—there appears to be no statutory limitation, and I understand your due process argument. So I—what if I, you know, would start with a premise that I don't control when the Government decides to serve the company. Where do we go from there?

MR. BURCK: Well, Your Honor, we would submit that if the Court were ruling—going in that direction as a reasoning matter, that the appropriate result would be to dismiss the indictment without prejudice.

Because the company, again, has already suffered all the consequences of a criminal prosecution, so the—even if there's a trial and the company is acquitted and the individuals are acquitted, of course the company is still done.

So, we think that the due process claims trump all the other issues, and we think that if the Court were so inclined, that the Government should take certain steps in order to effectuate service, then—or if the extradition proceedings would be the relevant time line for that, again, the company should have an opportunity during that period of time to try to rehabilitate itself, because there isn't currently a criminal case that is sufficient for purposes of service and they've suffered massive harm.

So, of course, that would not be our preference, and we do think that the Supreme Court has said you can't change the rules of service, et cetera, but the—that’s all in our brief—but we do think that the alternative would be dismissal without prejudice, allow the Government at the appropriate time to then supercede the indictment again, add the corporation into the indictment.

And at that point, a year down the road, two years, however long it takes and wherever the MLAT process or the extradition process takes, at that point we could have this argument as to specific individuals, corporations, entities. But, in the meantime, having the company subject to the burden of a—the incredible burden of a criminal prosecution with no ability to defend itself and no service is an extraordinary result and one that is unprecedented.

In other words, Megaupload is saying dismiss this case until Dotcom is extradited, at which point (if he's ever extradited) then the company can be charged. But in the meantime, it's only fair to not have the company held back -- and the company did make that suggestion many months ago, contrary to the judge's suggestion otherwise.

As was noted here back in September, several news organizations have begun a coordinated push to have the Bradley Manning court-martial "opened up" to allow the general public to access motions, briefs and rulings. The military refused (of course), inviting the press to entertain itself with near-useless FOIA requests, a clunky form of "openness" prone to inexplicable (and endless) delays when not being ignored completely.

Fortunately, the military appeals court has taken this plea for openness more seriously than the government itself, which seems to treat it as an unwelcome nuisance at best. On Wednesday, the Court of Appeals of the Armed Forces (CAAF) began looking into allegations that the government has violated First and Sixth Amendment rights in regards to free press and public trials by making all filings and transcripts inaccessible.

The CAAF had little patience with the government's insistent obfuscation but seemed unsure as to whether it could actually force a change:

Center for Constitutional Rights attorney Shayana Kadidal had barely started his opening arguments about the public's hunger for more information on the case when one of the judges interrupted him. "Counsel, how do we have the jurisdiction over this matter?" Judge Margaret Ryan asked.

Kadidal appeared unprepared to answer, noting that the matter had not been disputed. "It certainly wasn't challenged by the government," he replied.

Other judges had the question in mind as well.

Judge Scott Stucky asked whether the journalists fighting the policy had standing to challenge a restriction that affects the press and public alike. Kadilal replied that the "fact that the injury is widely shared" did not harm his clients' case.

"Widely shared" is correct. In all, 31 news outlets signed off on an amicus brief filed by the Reporters Committee for Freedom of the Press, and several other entities have petitioned for access. Some discussion ensued as to whether or not a sort of PACER access could be implemented, and Kadilal proposed several possibilities, including paid stenographers, online audio streams of the proceedings, or having redacted documents posted to the court's website.

Chief Judge James Baker offered somewhat of a compromise in order to move the proceedings along:

Baker ordered the parties to submit written arguments about whether the court has jurisdiction to grant this type of relief. If the journalists vault procedural hurdles, the judges seem inclined to open court-martial access.

At this point, the panel turned on government lawyer Capt. Chad Fisher, pointedly asking why the executive branch felt it necessary to force this issue to be discussed rather than simply open the trial up for public access:

"Instead of making a constitutional case about this, why not just make it available?" Judge Ryan asked, adding that the government chose litigation over "simple and reasonable" solutions.

In an amicus brief, the Reporters Committee for Freedom of the Press pointed out that military commissions at Guantanamo Bay put court records online. Judge Erdman picked up this point in asking, "If they can do it, why can't you?"

A perfectly fair question, but one that Capt. Fisher instead decided to "answer" with another assertion of executive level privilege.

The captain insisted that courts-martial are a "creature of the executive" branch, rather than the judiciary.

While courts must provide prompt access to records, the public can seek executive-branch files only through Freedom of Information Act. Such requests, however, are subject to delays and exemptions. Many news outlets, including Courthouse News, have had their FOIA requests for documents in the Manning case denied.

Basically, Fisher's answer boils down to: if the general public wants this information, it's going to have to work for whatever scraps the executive branch deems it worthy of. Nominally a tool of transparency, the FOIA has been twisted into a barely functioning layer of bureaucracy that most administrative agencies seem to treat as completely optional. Whatever doesn't get delayed indefinitely or redacted into uselessness is simply denied under any number of executive privileges or for bogus "national security" reasons. One of the CAAF judges pointed out this irony, stating that the FOIA statute has done more to close off access to the Manning case, than to open it further.

Fisher's next statement displayed the sort of hubris inherent in agencies that routinely disregard the rights of others:

Though the trial briefs and transcripts are not under seal, Fisher said that the government has no obligation to make them available.

Judge Erdmann ridiculed that position. "You don't see anything wrong with giving the public the documents, but you don't have to so you're not going to," he said.

This answers Judge Ryan's question from earlier: why make a Constitutional case out of this? The answer: because certain agencies will never do ANYTHING that results in transparency or openness until forced to, and even then, their compliance will be marked by endless delays, appeals and attrition.

Judge Baker pressed the point by pointing out that the government's representation was willing to avail itself of all available rights and privileges, but was unwilling to extend those courtesies to others.

Baker highlighted the discrepancy by noting that Fisher, like his courtroom adversary, would get to speak after his allotted time.

"You're entitled to more time as a matter of fairness, but the Constitution does not require it," Baker said.

While it's refreshing to see a panel of judges as sick of governmental hubris and obfuscation as much of the public is, this matter is far from settled. The government will likely continue to hold out as long as possible before granting access to Manning's court-martial.

In order to expedite the proceedings, Kadilal has suggested that the court find that "court-martials have a First Amendment obligation to public access," passing along the implementation logistics to the lower court. However, if the CAAF finds the decision is out of its jurisdiction, Kadilal said he plans to seek "emergency relief in a federal court." Unfortunately, forcing the issue in this fashion would require Manning's defense to file a stay of trial, resulting in further delays for the defendant who has already spent over 900 days in pre-trial incarceration.

While demands for openness currently remain unmet, it's good to see another set of judges irritated with the standard M.O. of many government agencies: closed, secretive and unwilling to change unless forced.

Well, well. I had a post all written up that I was going to publish today about how the settling of the Publishers lawsuit against Google over book scanning had one downside -- that we didn't get a full court ruling on the question of whether or not the book scanning project constituted fair use. I have to now scrap that post, because before I had a chance to finish it off, the judge in a similar/related case -- filed by the Authors Guild against HathiTrust, a consortium of universities trying to digitize their libraries -- ruled that the book scanning effort was obviously fair use. Judge Harold Baer is pretty explicit that this is absolutely fair use when you look at the details:

Although I recognize that the facts here may on some levels be without precedent, I am convinced that they fall safely within the protection of fair use such that there is no genuine issue of material fact. I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants’ MDP and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the ADA.

In other words, when you look at this project, it should be obvious that it's advancing the public good in many ways, and thus, promoting the progress. The judge relies heavily on one of my favorite fair use cases that I often use to debunk false ideas that some people have about fair use. Those who don't know the law, often insist that there can be no fair use if either (a) the entire work is used or (b) it's used in a commercial setting. Yet, as the Bill Graham Archives v. Dorling Kindersley case showed, neither point needs to be true (even if they may weigh on how the fair use factors are considered). In this case, even if there were commercial elements and the entire works were "used" in that they were scanned, the court said that this use was obviously transformational in a useful manner.

A transformative use may be one that actually changes the original work. However, a transformative use can also be one that serves an entirely different purpose.... The use to which the works in the HDL are put is transformative because the copies serve an entirely different purpose than the original works: the purpose is superior search capabilities rather than actual access to copyrighted material. The search capabilities of the HDL have already given rise to new methods of academic inquiry such as text mining

The judge also, thankfully, noted that just because HathiTrust didn't "add anything new" to the work itself "misses the point" because each scan "serves a different function than the original work."

The judge also rejected the whole claim that the scanning "impacts the market" for the works -- which is the other key factor. While some like to pretend that any activity "impacts the market" because any use limits the possibility of a license, the court (thankfully) recognizes that such an argument is ridiculously broad and makes no sense. Furthermore, he notes that the plaintiffs have to show real harm is likely, and they completely failed to do so here.

Of course, the details in the Google book scanning suit are somewhat different -- in that the use is more clearly commercial, and a greater amount of the book is made available. However, as James Grimmelmann notes, the "near complete victory" for HathiTrust with this ruling does not bode well for the Authors Guild case against Google, and increases the likelihood of an out of court settlement.

In the wake of the Twitter joke trial fiasco, which saw Paul Chambers dragged through the courts for two years before being acquitted, the UK's Director of Public Prosecutions announced that there should be an "informed debate" about the boundaries of free speech for social media. That really can't happen soon enough, as the UK continues to arrest and punish people for the crime of posting stupid and tasteless messages online. Here are some of the latest developments.

A man was arrested after creating a page on Facebook that appeared to praise the alleged murderer of two British policewomen. The UK student charged with writing a "grossly offensive" Facebook post about British soldiers killed in Afghanistan, has now been sentenced to 240 hours of community service, and to pay £300 (about $500) costs. He got off quite lightly compared to 19-year-old Matthew Woods, who has just been sent to prison for three months for making jokes about two young girls who are missing:

A teenager who posted explicit comments and jokes about April Jones on his Facebook page has been jailed for 12 weeks.

Matthew Woods, 19, from Chorley, Lancashire, made comments about April and Madeleine McCann, the three-year-old who went missing during a family holiday in Portugal in 2007.

The Guardian article, quoted above, goes on to reproduce some of Woods' comments, which are exceptionally insensitive given the fact that the fate of both the young girls in question is still unknown -- an appalling situation for their respective parents. But it's hard not to get the feeling that the harsh punishment was imposed in part to assuage public anger:

"The reason for the sentence is the seriousness of the offense, the public outrage that has been caused and we felt there was no other sentence this court could have passed which conveys to you the abhorrence that many in society feel this crime should receive."

Indeed, the Guardian article includes the following disturbing fact:

Woods was arrested for his own safety after about 50 people descended on his home.

This is getting dangerously close to mob justice, with the courts responding to public outrage by imposing disproportionately severe punishments. What's particularly worrying is that such sentences are likely to feed public anger in future cases, rather than quell it: people will have a benchmark for how grossly offensive comments should be punished, and the courts may well feel obliged to bow to that implicit pressure.

That makes the Director of Public Prosecution's review of this whole area crucially important. Sadly, another feature in the Guardian suggests that the preferred solution of the UK government is self-censorship by social networks:

The director of public prosecutions is exploring whether Facebook and Twitter should take more responsibility for policing their networks for abuse and harassment in an attempt to reduce the number of cases coming to court.

As that makes clear, this is not really solving the problem by coming up with a sensible legal framework, merely sweeping it under the carpet so that fewer cases come to court. A better long-term solution would to accept that stupid people will always say offensive things, and that the best policy and punishment is to treat them with the contempt they deserve unless they clearly break laws other than those of good taste.

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Well, this is unfortunate. Late last year, the 9th Circuit appeals court -- as part of a series of cases concerning warrantless spying on Americans -- decided that the FISA Amendments Act (FAA) passed by Congress in 2008 was not unconstitutional in granting telcos retroactive immunity for carrying out government orders to spy on Americans. This is quite troubling for a variety of reasons, not the least of which is that the government is more or less admitting that it teamed up with telcos to violate the law. Why else would you grant retroactive immunity to telcos if you didn't know they'd already broken the law in the past.

Unfortunately, it appears that the Supreme Court has now refused to hear the appeal on the case, effectively killing off the EFF and ACLU's legal challenge to the legality of giving telcos retroactive immunity.

The UK Government has unveiled a new tax break scheme, Patent Box, for corporations that use patents -- either through owning the patent or being the exclusive licensee.

You can only benefit from the Patent Box if your company is liable to Corporation Tax and makes a profit from exploiting patented inventions.

Your company must also own or exclusively license-in the patents and must have undertaken qualifying development on them. You can read more about exclusively licensing-in patents later in this guide.

If your company is a member of a group, it may qualify if another company in the group has undertaken the qualifying development.

The Register reports that there has been some controversy over this with potential beneficiaries ecstatic over the prospect of a windfall from the tax man because Corporate Tax drops from 28% to 23% and revenue from patents will be taxed at only 10% starting in April 2013. Others are, quite reasonably, concerned that this could lead to a wave of trivial patents being filed, favor big businesses over small businesses, and distort research priorities.

Given the cost of filing a patent and the increasing frequency of litigation over patents, they've got a point.

The dangers are obvious: patents are being increasingly broadly written and the consequences of trolling costs upwards of $29 billion a year in the USA. The epic fights over software between big-name companies like Apple, Google, Microsoft, and Oracle may be amusing to read about but people can and do get put out of business by bad patents. Britain is a member of the European Union, where there is a push to introduce the Unitary Patent alongside a new patent court. This would possibly open the floodgates for the kind of patent insanity we've been seeing in America -- and perhaps make things even worse.

The idea behind Patent Box is that businesses will put the tax money they save into R&D, fueling further innovation and further patents, but we all know what actually happens in these cases: they end up litigating over patents and stifling actual innovation because the patent itself is the product. And since there's very little economic evidence that patents lead to greater innovation, this is just creating massive incentives for patents, not for innovation. It's a stupid idea to create a tax dodge for big players without doing anything to actually encourage innovation.

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Back in May we wrote about how some multiple-listing services (MLSs), at the apparent behest of some annoyed real estate agents, were suing the website NeighborCity (technically its parent company American Home Realty Network (AHRN)), claiming copyright infringement. As we noted at the time, the copyright claims seemed somewhat dubious, as one of the MLSs, Metropolitan Regional Information Systems, Inc. (MRIS), appeared to mostly be claiming copyright over factual information. There were a few other problems with the lawsuit as well. But, the real issue was that it seemed quite clear that the lawsuit had little to do with copyright at all, but was about real estate agents not liking the fact that NeighborCity had started rating real estate agents. AHRN claimed that it suddenly started getting complaints and threat letters (many of which were very similar) right after the National Association of Realtors' annual meeting in November 2011. There was also an email accidentally sent to AHRN's CEO, by one of the execs from an MLS that filed the lawsuit, which basically admitted they wanted to bring a "world of hurt" to the company. Of course, making the matter even more complex, is that the National Association of Realtors (NAR) got in trouble for antitrust violations a few years ago.

Given all that, it's not surprising to see that in AHRN's latest response to the original lawsuits, it's filed counterclaims arguing that the actions are antitrust violations. The fact that NAR offered to cover the legal expenses for the MLSs only makes the situation look worse for NAR -- and advances the suggestion that this is really about realtors being pissed off that someone is holding them accountable. NeighborCity highlights that soon after the original lawsuits were filed, NAR approved $161,667 in legal fees for these kinds of legal efforts, despite it not actually being a part of the lawsuit.

Defendants’ coordinated: (a) cease and desist letters to AHRN, (b) refusals to deal letters to AHRN; (c) repudiation letters to AHRN, (3) sham lawsuits against AHRN and (d) agreement or offer to pay for or contribute to the costs of litigation against AHRN by MLSs and real estate brokers, was intended to and did have anti-competitive effects on AHRN in the market for real estate brokerage services. Anti-competitive effects include the elimination of price competition and price maintenance on brokerage services above market levels nationwide, impeding and blocking market entry by AHRN and other

We're quite used to seeing legacy players in an industry fight innovation and upstart competitors who change the nature of a market, but it's rare to see cases where it seems so incredibly blatant that they're doing this just because they don't like the service in question, rather than via any sort of legitimate copyright claim.