Earlier this week, we wrote about how the White House was working on an executive order to act as a "stand in" for cybersecurity legislation that has so far failed to pass Congress (CISPA passed in the House, but a different effort, the Cybersecurity Act, failed in the Senate, and it would have been difficult to get the two houses aligned anyway). Last weekend Jason Miller from Federal News Radio wrote about a draft he saw... but failed to share the actual draft. We got our hands on a draft (and confirmed what it was with multiple sources) and wanted to share it, as these kinds of things deserve public scrutiny and discussion. It's embedded below. As expected, it does have elements of the Lieberman/Collins bill (to the extent that the White House actually can do things without legislation). It's also incredibly vague. The specific requirements for government agencies are left wide open to interpretation. For example, the State Dept. should engage other governments about protecting infrastructure. Well, duh. As expected, most stuff focuses on Homeland Security and its responsibilities to investigate a variety of different cybersecurity issues -- but, again, it's left pretty vague.

There is, as expected, plans concerning information sharing -- but again, they're left pretty empty on specifics. It talks about an "information exchange framework." Unfortunately, it does not appear to highlight privacy or civil liberties concerns in discussing the information sharing stuff. That seems like a pretty big problem. Homeland Security is tasked with coming up with a way to share information, pulling on some existing efforts, but nowhere do they call out how to make sure these information exchange programs don't lead to massive privacy violations, despite the President's earlier promises that any cybersecurity efforts would take into account privacy and civil liberties.

Separately, it lists out 16 critical infrastructure "sectors," but those can be interpreted really broadly, which is dangerous. We all understand how things like the electric grid, nuclear power plants, water facilities and such can be seen as critical infrastructure. But does "communications" include things like social networking? It's important that any plan be very, very specific about what sorts of things are critical infrastructure, so as to avoid sweeping up all sorts of things like internet services and opening them up to information "sharing" abuse efforts by the government. We all know there's plenty of evidence that when the government is given a loophole to spy on private communications, it figures out ways to drive fleets of trucks through that hole. Unfortunately, there's little indication that any of that has really been taken into consideration.

All that said, it is important to recognize that this is a draft, and it is not only subject to change, but there are indications that it is likely to change. But, seeing as this could have significant impact, it should be something that the public has a chance to weigh in on.

Honestly, looking this over, you get the sense that it's really designed to do one thing: scare those who fought against the various bills back to the table to compromise and get a bill out. It's no secret that the administration's overall preference is to get a law in place, rather than this executive order. That's been a failed effort so far, but you have to wonder if this is a ploy to scare those who opposed the Cybersecurity Act into thinking that if they don't approve some legislation, the exec order might be a bigger problem. There are way too many things left open ended in this draft, and while the administration can't go as far as Congress on many things, the open-ended nature of this order could certainly lead to problems for the industries who opposed previous efforts.

Either way, we'll have some more on this next week, but since we just got this and want to get it out there for comment, hopefully folks can spend some time this weekend discussing the (yes, once again, vague) particulars...

There are many who argue, despite historical and ongoing evidence to the contrary, that creativity will die out if creators cannot be guaranteed some sort of livable wage. It's almost as if any creator who creates as a hobby or potential second job either a) is being shortchanged by disruption, piracy, etc., or b) shouldn't be taken seriously because they haven't abandoned their day job.

It's an odd assertion. Most groundbreaking creative efforts were conceived and carried out while the creators worked in a variety of other non-creative jobs. It was only after these breakthroughs that these artists went on to live solely on the earnings of their creative works. Somehow, we're now expected to believe that without piracy and other disruptions, creators would be making better, livable wages, possibly right out of the gate.

That whole thought process ignores the reality. Not having a paycheck tied to your creative endeavors means being able to fail more often and experiment more freely, without having to worry about hurting your current source of income. Case in point: three developers who solved a problem most companies didn't know they had, all without having to "give up the day job."

For the past two years, Brandon Medenwald, Justin Kalvoda, and Bill Burgess have held down full-time jobs while also launching their company, Simply Made Apps.

Their only product is an app called Simple In/Out, which solves a problem that drove Brandon crazy. He explains, “In my fulltime job as a web programmer, we had an old magnetic in/out board like they use in sales offices to keep track of who is in the office and who isn’t. Five or six years ago, they transitioned to a Web-based version.

“I was constantly frustrated with it, because some of the roughly 40 people in our firm wouldn’t use it. The board became extremely out of date. For years, I was joking that I could write a better piece of software in a weekend, but then over beers in a bar with two friends, it dawned on me we could solve this problem by using the GPS chips in cell phones.”

On it's face, it seems terribly simple: build something better. And yet, no one had really tackled it before. So they took a weekend off to knock out the framework early last year and since then have been refining it based on customer feedback.

For the first four months, the app was free. Last September, they introduced pricing that was based on the number of people being tracked on the company’s board. Prices start at $5 per month for 4 to 10 users, and gradually step up to $160 a month for 250 to 1,000 users.

Although the trio are far better programmers than they are marketers, today they have over 1,600 registered companies. More importantly, they have something they love so much that they occasionally use their vacations to devote extra time to their “nights and weekends” startup.

None of them hate their real jobs. None are eager to quit. They come across as smart, patient people who want to solve interesting problems that other companies aren’t solving.

Creativity very often springs from those tied to day jobs. These three don't sound even remotely "tied." It's not about sustaining yourself from a nights-and-weekend project. It's about being passionate about what you do with your nights and weekends. These days, anyone with a spark of creativity has hundreds of free-to-cheap tools at their disposal. The barriers to entry have been demolished, whether it's music, movies or software. It's not money that drives these creators: it's passion. And if you ignore that fact, and cling to past business models, you're going to find yourself trailing the pack very quickly.

“In a big corporation,” says Brandon, “I’d be fearful of the little people out there doing something that they are passionate about, because, passion trumps money.” He and his partners love what they do, and feel fortunate to be able to solve interesting problems.

Even though the company is turning a modest profit, he says, “Because we love what we do, we don’t have to be concerned about turning a profit, which means we are extremely dangerous people when it comes to our dedication to improving services

The three were able to get this off the ground using spare time and around $100 each, which covered "licenses, a Web domain, a 'doing business as' name, etc." From $300 and a few nights and weekends to 1,600 paid users, all without having to "quit the day job."

Those arguing that creativity is tied to a steady paycheck are relics looking back fondly at the days of gatekeeping, when competition was low because the barriers were too high. It has nothing to do with wanting future artists to be properly "protected" against disruption and everything to do with keeping more people out. That sounds more than a little like fear.

Many times, when a company has an early release of their work leaked in the wild, it responds in much the same way that Fox responded when an unfinished version of the movie Wolverine was leaked. It complained about the leak. It got the FBI involved. It fired one of its own reporters who reviewed the leaked copy. Eventually all this lead to the arrest and sentencing of the man who leaked the film. Throughout the whole ordeal, we tried to explain how Fox could have turned this leak to its advantage by using the leak as a promotional opportunity.

When you compare that string of events to this latest report of an early release of Double Fine's newest mobile game, Middle Manager of Justice, you can see that Double Fine has a better grasp of reality than Fox and many other companies.

"So I was on the train heading to work this week, and I get a call from our tech director saying, 'Hey, um, so it looks the game is live in every territory.' And I just went, 'What!?'" Looking back on it, Chi laughs, but for a time he was worried about how this early launch could affect his game's reputation. 

"It wasn't what I wanted the world to see quite yet," he said. "At Double Fine, we pride ourselves on putting a solid product out there, so having something out there that was buggy and not quite ready yet was really frustrating."

At this point, Chi had a number of options. He could have followed Fox's example and complained about the early release and told all those people who downloaded the game to stop playing it because it was unfinished. He could have threatened those players if they released any video or screen shots of the game. Or he could have done what we tried to tell Fox it could do, use it as a promotional opportunity. And that is exactly what Chi did.

"I guess it kind of just turned into a beta test," Chi said. "I mean, if people find bugs that we haven't found internally, I'd love to know about them so I can fix them," Chi said.

Even just a few days later, Chi says he's received a ton of valuable feedback that's helped Double Fine eliminate bugs, and make the game's free-to-play elements less restrictive for non-paying players.

"If anything, I welcome these suggestions from people, because we're still learning and we plan to work on this well after it goes live to make the game deeper, and luckily this means we'll get an early start on that process," he said.

While the game was not meant to be in the hands of players, Chi did what he did as a way to preserve the integrity of the company as well as strengthen its relationship with its fans. He used the early release as a way to help fans become more invested in the company by becoming early testers. He didn't have to do this. He could have had Apple remove the game from those players' accounts. Yet, he didn't because having a healthy relationship with consumers is more important than a mix up in the release schedule. Hopefully, more companies will take notice of how Double Fine handled this affair and will respond in kind.

Earlier this week, we talked about a ridiculous situation in NY, where Judge Matthew Sciarrino Jr. put Twitter in a nearly impossible position if it wanted to keep fighting for the rights of its users to keep private info private. As you may recall, the government used a non-warrant process to seek private info from Occupy Wall Street protestor Malcolm Harris' Twitter account. Earlier decisions had more or less said that Harris had no standing to block the transfer of info, and that Twitter had to hand it over. Twitter sought to appeal the ruling, but the judge announced that if Twitter didn't just hand over the info, he would charge them with contempt. Even worse, he told Twitter to disclose its earning statements from the past two quarters (which is otherwise private info) so he could figure out how much to fine them for contempt. As the EFF notes, by ordering Twitter to hand over the info, it would almost certainly kill off the appeal, since the DA would immediately argue that the appeal was moot since it already had the info.

Put in such a tough position, Twitter did what it had to do and handed over the info the government is seeking on Harris. The only concession the judge gave is that the information is filed under seal for one more week. Hopefully, Twitter can convince another court to stop this in this one short week and to allow a full appeal to be heard.

The EFF has a really good explanation for why both the DA's and the judge's actions in this case are potentially so dangerous:

If Judge Sciarrino is worried that Twitter is making a mountain out of a molehill by continuing to press its challenge to the subpoena, the same has to be asked of the prosecutors who are using a misdemeanor disorderly conduct arrest that occurred more than a year ago as a pretense to obtain a wealth of information. The attempt to obtain this information from Twitter is to prove a point not even really contested: whether Harris was on the bridge during the protest.

This case was shaping up to be a constitutional showdown on a contested and unclear area of the law. Judges much higher up the judicial chain have been wrestling with the complicated issues brought about by the explosion of information turned over to third parties. In her concurring opinion in United States v. Jones, Justice Sotomayor of the U.S. Supreme Court wrote that she "would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection." If a Supreme Court justice is thinking about the issues here, why would a state trial court force Twitter into a position where it has to abandon its court case seeking clarity or risk a massive fine in deciding to pursue its appeal? Some have already questioned whether Judge Sciarrino is the right judge to pass on this landmark case.

There are a lot of important issues brought up by everything that's led up to this situation, and it's unfortunate that the judge seems to have decided to toss all of those concerns overboard with his contempt claims against Twitter. Hopefully a higher court puts a stop to this in the next week.

Ketchup actually started out as a fish sauce and somehow evolved into the much more widely-consumed condiment we know today. Early recipes of ketchup contained sodium benzoate -- which was banned in the 1906 Pure Food and Drug Act. That ban led to other formulations which contained vinegar as a preservative and used ripe tomatoes. Here are just a few more fascinating factoids about this tangy, thixotropic, tomato-based foodstuff.

• MIT researchers have developed LiquiGlide -- a non-stick coating that could let people get every last drop of ketchup out of a bottle easily. Anticipation is no longer making me wait.... [url]
• Malcom Gladwell is famous for (among other things) his talk on spaghetti sauces and the discovery that customers want a spectrum of choices when it comes to spaghetti sauces. But ketchup seems to be the exception to the rule because there's just a single dominant brand -- and there are far fewer than 57 varieties of it. [url]
• Should ketchup count as a vegetable in school lunches? The tomato sauce on pizza may not count as a vegetable serving according to mothers and the USDA, but it might for some politicians. [url]

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

Usually when I think of RFID chips, I tend to think of them being used for safety purposes. After all, my dog is chipped in case she decides to run off for greener pastures or tastier treats (DAMN IT, DOG, I GIVE YOU BACON ALL THE TIME!). But, despite safety often being the front man for using RFID technology, it often ends up being more about the money, such as when we previously wrote about Cleveland chipping citizens' garbage and recycling cans because recycling was a financial benefit for the city.

So reading the Wired article covering a Texas school district's decision to impliment RFID student cards, I wasn't surprised to find that it looks like this is about cash rather than keeping students safe. Now, as you'd expect, proponents of the system, did trot out their "for the children" cannon and set it on full auto.

[District spokesman Pascual Gonzalez] said the chips, which are not encrypted and chronicle students only by a serial number, also assist school officials to pinpoint where kids are at any given time, which he says is good for safety reasons. “With this RFID, we know exactly where the kid is within the school,” he said noting students are required to wear the ID on a lanyard at all times on campus.

Unfortunately, as the article notes less vulgarly, that's a big steamy pile of bullshit for two reasons. First, due to lack of encryption and the nature of the technology, any tech-savvy kid can fool the system.

The lack of encryption makes it not technically difficult to clone a card to impersonate a fellow student or to create a substitute card to play hooky, and makes the cards readable by anyone who wanted to install their own RFID reader, though all they would get is a serial number that’s correlated with the student’s ID number in a school database.

If you're wondering, like I did, why they would allow such a gap in the system through which their safety-minded goals could be subverted, the likely answer is that they don't care. Because this doesn't appear to be about safety at all; it appears to be about federal funding based on attendance.

Like most state-financed schools, their budgets are tied to average daily attendance. If a student is not in his seat during morning roll call, the district doesn’t receive daily funding for that pupil, because the school has no way of knowing for sure if the student is there. But with the RFID tracking, students not at their desk but tracked on campus are counted as being in school that day, and the district receives its daily allotment for that student.

So, with the chip system, even if a student is not in class and is just wandering around campus, he's counted as being in attendance and the school gets their funding. It's essentially a high tech way to game the federal funding metrics. It doesn't help keep students safe. It doesn't help make sure the kids are actually in class or learning. It's a money grab. And all this, despite the concerns of privacy advocates like the EFF and the ACLU, who signed on to a paper (pdf) blasting use of the chips, citing health concerns over electromagnetic radiation as well as the dehumanizing of children through constant surveillance.

A tip for school districts: if you're going to use RFID chips as a way to get more federal funding while pretending it's about student safety, pretend harder.

The anonymous marketplace Silk Road got some attention about a year ago when Gawker did a big expose on the site, which can only be accessed via the TOR network, and which requires Bitcoin for all purchases. That bit of publicity also resulted in Senator Chuck Schumer demanding something be done about the site, while also suggesting that Bitcoin itself was a form of money laundering. While there are a bunch of similar sites, the "publicity" has established Silk Road as the most well known such site.

Nicolas Christin, from Carnegie Mellon, recently released a fascinating research paper analyzing the Silk Road marketplace. Christin also recently appeared on Jerry Brito's Surprisingly Free podcast, which is where I first heard about the report.

There are a bunch of interesting things in the report itself, but a few key points that seemed especially interesting. The market is surprisingly stable. You might think with a very (but certainly not totally) anonymous marketplace, that seems to focus mostly on illegal products, using a really volatile currency, that the market itself would be pretty volatile as well. But the data does not suggest that at all. Also, you might expect a number of scammers to use the site, but (like plenty of regular online marketplaces), Silk Road has a rating system, and the research found that there was tremendous customer satisfaction:

On a site like Silk Road, where, as shown above, most of the goods sold are illicit, one would expect a certain amount of deception to occur. Indeed, a buyer choosing, for instance, to purchase heroin from an anonymous seller would have very little recourse if the goods promised are not delivered. Surprisingly, though, most transactions on Silk Road seem to generate excellent feedback from buyers. Table 3 provides a breakdown of the feedback ratings from 187,825 feedback instances we collected. 97.8% of feedback posted was positive (4 or 5 on a scale of 1 to 5). In contrast, only 1.4% of feedback was negative (1 or 2 on the same scale).

Also, it will come as little to no surprise that the vast majority of products for sale are not what most people would consider legal. Drugs seem to represent an overwhelming percentage of items for sale, though there are also things like "books" for sale. Finally, it doesn't appear that the "business" is really that big. For all the talk and publicity around it, you might think it was a decently sized operation, but there's little to support that. When Christin began his research back in November last year, there were only 220 sellers. By the time he finished in July, it was 564. So the number is growing, but it's still not a huge number. Christin also made some reasonable assumptions and estimates to suggest that approximately $1.9 million worth of transactions happened on Silk Road in a month. Translating the commissions, he believes that the site's operators likely brought in approximately $143,000 per month in commissions. At first glance that may sound like a lot but, assuming rather significant costs to operating and maintaining the site while keeping everything as secret as possible, there really isn't that much left for "staff," though no one has any idea how big a "team" there is involved in the operation. It's possible it's just one person, of course, in which case, the money is probably pretty good (and growing).

The report also notes various ways that such a site might be disrupted... and you have to imagine that law enforcement has been working on doing exactly that. It won't surprise me at all to find out that the operators of the site eventually do get tracked down, but I doubt that will stop these kinds of marketplaces from existing.

Despite the growing evidence that consumers absolutely hate DRM, many publishers still hold harbor fantasies that locking down digital goods prevents unauthorized copies from spreading across the internet. Most DRM ends up serving one purpose: to make authorized copies less functional than unauthorized versions.

This practice is particularly prevalent in the book publishing industry. With rare exceptions, most major publishers still keep their products under digital lock and key. There are a few exceptions. Baen was one of the first publishers to go DRM-free, recognizing the limitations far outweighed the benefits to it or its authors. O'Reilly Media has also shunned DRM for the same reasons, noting that unauthorized sharing leads to more readers without an appreciable drop in sales. TOR has attempted to do away with most of its DRM, although it has been hampered by publishers insisting the DRM remain in place.

Perhaps noting, as Cory Doctorow pointed out, that "no one's ever bought a book because it has DRM," another publisher, Harvard Business Review Press has opted to go DRM-free.

[H]BR have adopted the “buy once, read anywhere model” and that anywhere includes a Kindle. This means their consumers aren’t locked into a device or format. And it means that their purchases are ‘future proof’ to a good degree. It also means that if they want to share a book, there are no ‘technical’ things stopping that. To be sure, selling an HBR eBook is illegal but this mode is more tolerant of sharing.

Here's HBR's official statement, one that treats its customers with respect.

We make our ebooks available to you DRM-free so you can read them on the device of your choice. We trust that our customers will abide by copyright law and refrain from distributing ebook files illegally. Please note that in the case that you download a PDF, it will be personalized with your email address.

This small statement asking readers to respect its copyright is preferable to installing DRM and treating every paying customer like a thief. Additionally, HBR is offering multiple formats which gives readers more options and keeps them from being locked into any particular device.

Joshua Gans points out that offering this freedom to its customers should pay off for HBR, whose target audience is a bit different than most publishers.

[T]he business book market is a little different than other book markets. Many sales are generated by people giving books to each other. The typical case is of a boss insisting all of his underlings read something. But there are also bulk distributions to clients and the like. Amazon and all other platforms do not offer bulk sales so HBR had to do something different. Moreover, to manage that with DRM would just be too hard. So instead they went their own way and so now you can buy eBooks in bulk with a volume discount. A real innovation.

Gans notes that this additional freedom comes at a price.

But there is a cost to this. HBR have not gone ‘all in’ on DRM free. For instance, one of the books they offer is Clay Christensen’s famous book, The Innovator’s Dilemma. Buy it from HBR directly and it will cost you $17.99 (and you can also see there they currently have the eBook ‘In stock’) but on the Kindle from Amazon it is $9.89 and from the iTunes bookstore it is $10.99 (not sure what happened to the most favored customer clause there!).

The question is, will customers pay extra to avoid being locked into a device? In HBR's case, the answer is likely a "yes." As was mentioned earlier, HBR offers bulk purchases, something Amazon and iTunes don't. Additionally, these bulk rates are discounted depending on the number of copies purchased, bringing the price per copy more in line with its competition. Purchasing directly also gives the buyer three different formats (PDF, ePub, mobi) for the price of one, allowing them to move books from one device to another.

Gans suggests that HBR's ebook policy could lend itself to more innovative offerings, leading to more reasons to buy directly from the publisher and giving authors more reasons to offer 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.

One of the best ways to avoid locking yourself or your customers into walled gardens like Amazon or iTunes is to give them a direct, DRM-free option that recognizes the reality of digital life. Trying to lock them into a single device or punishing them for the actions of others isn't really giving them any reason to buy from anyone but the lowest bidder. Treating your customers with respect and recognizing that most people have more than one form of "e-reader" is a better way to grow your audience. Once you've decided to stop policing infringement, you can throw that time, energy and creativity into building better, more innovative offerings for your paying customers.

We've talked a few times recently about the insanity created by over-aggressive intellectual property enforcement when it comes to universities, and the University of Alabama really is a prime example. After all, this is the school that sued a local artist for painting (very popular) commemorative paintings of UA football moments. Thankfully, it recently lost that case, but I guess the lawyers at Alabama didn't quite get the message that perhaps they shouldn't be so quick to dash off legal nastygrams. It appears that the lawyers in charge of enforcing UA's trademarks were quick to send off a legal nastygram to a local baker because she was making hand-decorated cakes and cookies with "UA-related" imagery:

[Mary] Cesar is owner of Mary's Cakes & Pastries in downtown Northport. The bakery is known for its customized cakes, but it also sells fresh-baked pastries and iced and decorated form-cut cookies. During the last three to four years, its cookies, especially during the football season, have included hats with a houndstooth-like icing pattern, footballs and elephants with the letter “A.” Some customers also ordered cakes decorated with a Crimson Tide theme.

Yeah, just one problem: she was doing that for the university itself.

Mary Cesar created a cake that resembled the BCS National Championship trophy for the Crimson Tide's athletic department for National Signing Day in February. And when the University of Alabama Law School held a reception for its recent graduates, it ordered 10 dozen cookies decorated with a capital “A” for Alabama from her bakery.

Cesar announced that she couldn't afford to fight the legal nastygram, and was going to stop producing the popular baked goods. After the story got out, the University quickly went into damage-control mode and issued an apology, claiming that it was "not consistent with the protocol we normally follow for local vendors on trademark issues." Given the lawsuit mentioned above, it's not clear that's really accurate. Of course, part of the culprit here may be that UA outsourced its trademark enforcement to a third party. Collegiate Licensing Co., based in Atlanta, is who the letter actually came from. It would seem that if you're seeking to build up goodwill with local merchants who supply your own staff with university-themed baked goods, perhaps the first thing you should do is not let lawyers from some other state start nastygramming them.

As of this writing, my Dimeword campaign to fund public domain literature has more than doubled its funding goal and is still rising. 10 hours from the publishing of this article, the Dimeword campaign will end and I can finally start writing 100 stories for the public domain. Boat drinks!

I wish I could take all the credit for its stunning success, but most of Dimeword's success roots from years of reading Techdirt. Through Techdirt, I've learned from the likes of Gerd Leonhard, Amanda Palmer, Nina Paley, Jill Sobule, Jonathan Coulton, Tim Cushing... too many to count. Techdirt keeps teaching me and all too often I find my poor brain is full.

In the spirit of the "decimal" theme of Dimeword, here are 10 things I learned -- mostly from Techdirt -- that supercharged the Dimeword campaign.

1. START SMALL AND START NOW

Principle: Before the internet, authors could toil away on a manuscript and gain royalties on book sales. The internet made copies easy, and the old model was upended. The only long-term solution is to build a fan base from the ground up, and that takes time. A lot of that time is unpaid. But if you reach out to fans, and give them something they really value, then they'll tell their friends about you. Do that enough, and you hit a tipping point.

Practice: I "started small" in 2009 by creating the Infinite Distribution Panel on Twitter (the phrase "infinite distribution" is a hat tip to Masnick's Approaching Infinity). It took me a few years to really understand how best to use #infdist, but I have a good flow now and it continues to be a great way to converse with like-minded people about piracy and digital distribution news.

Because of #infdist, Mike Masnick asked me contribute to Techdirt during his paternity leave. This was a great opportunity to increase my online presence, so I immediately accepted.

One day, I realized that if I were to ever crowdfund my own feature film, I needed to have a committed group of fans willing to throw down when I asked them to. I'd taken a break doing any kind of writing to make sense of how artists can thrive in this new economy. I knew it was time to step back into the stream so I launched Dimeword with the hope that if I could just get just 100 of my friends and followers to chip in $10, I could raise a simple $1000 goal. If I did it right, I'd have acquired my first small group of paying fans.

Results: Thanks to being a frequent Twitter user, and writing for Techdirt, and doing various writing gigs over the years (including five years of blogging), Dimeword rocketed to its $1000 goal in less than 60 hours. As of today, five backers have donated $100, and one (here from Techdirt) has donated $500. I credit this response to my non-stop reaching out to new fans, chatting with them, engaging, conversing, entertaining, and learning from them.

2. SELL THE SCARCE. SELL YOUR SCARCITY.

Principle: Whenever radical new technologies come along, goods or services that were once scarcities suddenly become abundant and industries focusing on only selling those scarcities fight tooth and nail to defend the old way. Instead, they should be understanding what new scarcities are created by this new abundance and upgrade their business model to sell those new scarcities.

Practice: When I first looked at my campaign, I tried to see it from the perspective of someone trying to destroy my own industry, er... I mean, from the perspective of an author trying to compete with a better value proposition. What is scarce now that only I could sell? In one sense, a big scarcity these days is not using standard copyright protection. So I chose to release my stories with a Creative Commons License. After thinking about it, it seemed to make more sense to go further, to push my work out into the Public Domain. That was certainly something I didn't see anyone doing. That's my scarcity. Then I looked at ways to incorporate other "generatives" like embodiment (creating a limited edition hardback copy), convenience (an email with all the stories), exclusivity (being among the first to get the stories), etc. I tried very purposefully to work in as many of these elements so that the "reasons to buy" were scarcities made valuable by the abundant nature of public domain literature.

Results: It's worked. I've gotten over 50 people pledging $10 or more. Amazingly, I have 5 donors buying the paperback book for $100. Here's the cool part: at $100, the book has been paid for, so I can spend $62 per unit to print it and not bat an eye. And yes, it really is going to cost that much because I'm pimping out the book to be uber-high quality. The people who pledge big get big value. That's my scarcity.

3. MAKE FANS, NOT MONEY

Principle: Money is important, and without it, you fail. So of course you're in business to make money. But -- and this is the mind trick you must conquer -- money is not the reason you are in business. You are in business to help people solve their problems. Do that better than anyone and you will have more money than you know what to do with. If you focus only on making money, the temptation is too high to make an inferior product in favor of a higher profit margin. And mediocre products breed unsatisfied, resentful customers. Great products breed devout fans willing to champion you and your work to anyone who will listen.

Practice: The goal of my campaign was first to get 100 fans to donate $10+ so I could safely write 100 stories for them. That wasn't about the money -- that was about going to people I already knew who love my work and asking them to be my patron so I could set some time aside to work. It was about finding my first small group of fans. After that, I knew the next phase would be to find totally new fans to buy in for just $1, so I set a stretch goal for a bonus story tied to the number of fans that is triggered once I meet my goal of 100 $10 donors.

Results: This hasn't worked exactly as I expected. As of this writing, I have 59 $10+ donors and 12 $1 donors. This is mainly my fault because I haven't been as active as I should have been to reach out and let ALL my friends and followers know about Dimeword. On the other hand, I found five $100 backers and one $500 backer, so I suppose it balances out. My hope is that I get another 100 $1 donors by the end of the campaign. If I'd worked harder and longer at this, I might have gotten 1,000 $1 backers. Still, it's not bad for a first campaign. And my next campaign will have this campaign as part of its backstory -- word of mouth about the quality of my perks should get exponentially greater as I do more Kickstarters.

4. BUILD TRUST WITH THE CREATIVE BOTTOM LINE

Principle: "Creative bottom line" was coined by Amanda Palmer. Make great perks. Spend almost all your money if you have to. Fans will love it.

Practice: For my books, I'll be using Blurb, which offers high quality publishing options. For the $100 book, I'll likely be doing 8.5" x 11", 110 pages, super premium paper, and no Blurb logo. Per unit cost for just 7 copies? $62. Do I care? Nope. I want donors to feel like they're reading a $62 book. They're probably expecting a $30-$40 book, but it's going to feel better than that. They will like what they get for $100. On the next campaign, I'll go into it with their trust that my $100 option is sure to impress.

Results: I have no direct data on this, but I've always set a very high bar for myself creatively and everyone knows that when I do something, I do quality. I'm the dude who stayed up all night just to hunt for formatting errors on every page in my college newspaper.

5. $1 TIERS ARE PARAMOUNT

Principle: Whenever I see a campaign with their $1 tier offering just a thank you and nothing else, I wince. Amanda Palmer's $1.2 million Kickstarter gave away 311MB of digital downloads for $1. And what effect do you think that has on a casual fan? For accepting just $1, you let them legally download all your digital content (which costs you nothing to copy and send to them) and they likely become a more serious fan of your music. On the next Kickstarter, they'll happily give you more money for your $25 CD, or more.

Practice: I positioned my $1 tier to have incredible value: you get all the stories in an email eight weeks before the book comes out. If I happen to write a novel, you get a novel. Costs me nothing to copy and send, so my profit margin is 100% (well, 82% after fees and taxes). Some might argue that I'm "giving away the farm" for only $1, but my goal isn't to make money off my $1 fans -- my goal is to pinpoint who my fans are so I can more closely connect with them. Did I mention that I receive all the donor emails at the end? An email of a potential fan must be worth at least $1, no?

Results: Only 14% of my donors are from the $1 tier. I want that number to explode out to 1000%. Likely won't happen, but I really want lots of small donations by the end. I'm still thinking of ways to entice this...

6. ADVERTISE NATURALLY WITH CONTENT

Principle: "Buy now!" is a push sale. "Isn't this cool?" is pull sale. The former is seen as spam, the latter is seen as conversation. However, both promote. If you strike up conversation about your project, and keep talking about your project's value, your audience will naturally want to help you in your mission. However, it can't be disingenuous talk about value -- it must be totally authentic.

Practice: My 10 AM chats were intended to softly sell Dimeword while providing genuine perspective on Dimeword in particular, or other related topics like crowdfunding. I tried very hard to make each tweet "retweetable" by itself so that 2nd-degree readers would gain enough interest to look more closely at @Dimeword. You can't make people share stuff -- people only share stuff worth sharing. So a huge benefit was that, in addition to trying hard to connect with fans, I was also forced to create quality work. Additionally, I asked to be interviewed on Litopia, write this piece for Techdirt to be timed for the last day of the campaign, be a guest on #Scriptchat, and host a telethon. All events are opportunities for me to talk about my campaign, though I make a point to rarely ask anyone to donate. My hope is that the more others see how much energy and planning I've put into my campaign, they'll convince themselves I'm a superhero worthy of some of their pocket change, amirite?

Results: I had a little traction with the 10AM chats, but not nearly enough. If I'd started sooner, say a week or two before the campaign, then it might have had a bigger following. The Litopia interview went well and was perfectly timed at 6 days before the deadline. The #Scriptchat is happening concurrently with this Techdirt post and my telethon (psssst: right now!). If my hunch is right, all the heat will converge at once and push Dimeword up, up, up...

7. DELIGHT

Principle: Delight your fans. However much money they give, give them so much more value in return that they'll feel they got a bargain. They'll brag about you to others, they'll be repeat customers, they'll become avid fans.

Practice: I felt that $1 to buy all the stories in an email would be a great bargain to many, especially since they'd get it 8 weeks before the book's official release. And $10 for an email, PDF and the opportunity to be an author's patron was also not bad value, especially when you consider how much time collectively goes into all the individual parts. But I'm adding more to all that. I'm including extra things, many of them small (see "8. Offer Gratitude") which, together, should make the donor feel really appreciated. And for the higher tiers, I plan on going the distance to make the book look truly awesome. Here's the part everyone overlooks -- the packaging is as important as the perk inside. Even if I ship in a plain USPS box, I'll write cool and fun stuff on the outside of the box and I'll wrap the perk inside with special paper, etc. As Marshall McLuhan famously said, "Medium is the message." First impressions matter a great deal. Apple knows this, which is why opening a new Mac is a near religious experience I always look forward to.

Results: I have no data yet on this, or how well received my perks will be. I shall report back.

8. OFFER GRATITUDE

Principle: You can definitely file this under "connect with fans". Gratitude costs nothing but a few seconds, but it can really mean a lot to someone to let them know they made a difference in your life. I went to NYU film school and my teacher, Thierry Pathe, made a comment that sticks with me to this day: "When you send your film to the lab to get it color corrected, in the comments section, write a thank you. It doesn't have to be anything more than, 'Thanks!' but it matters to them. They don't get paid much, so a 'Thank you' goes a long way."

Practice: At about half-way through the campaign, I emailed all my donors one by one to thank them. At a minimum, every perk will also have a "Thank you!" written on the outside of the package, and probably again on a special note inside. When possible, I ask for feedback, which is an interactive way of showing gratitude. This shit matters, yo. It sets you apart from everyone else. Plus, it's just good karma.

Results: Who knows for sure if the "personal touch" worked, but after my individual emails, one donor upped their donation from $100 to $150!

9. HAVE FUN

Principle: When people see you're enjoying yourself, it's contagious. People respond because it's an invitation to connect.

Practice: I had fun on this campaign because in part, I did it to learn about crowdfunding. I didn't have to worry about missing my goal because the goal was set so low. I could try many new things to see what worked. One day, I did a Flash Story by inviting others to sift through my tweets ("Count back 10 tweets. Find the 10th word. Add the 10th letter of the alphabet to create a new word. What is it?"). For the last 10 days of the campaign, I've done twitter "mini-lectures" every morning at 10AM and opened it up for questions afterward. As of right now, I'm doing a telethon on YouTube... for 10 hours. See how it's playful?

Results: I gathered 55 followers on Twitter in just a month, which is a high response rate. The @Dimeword account wasn't set up to be an engagement account -- i.e., equal followers to followed -- just a "push" account for news, but I still use it to chat with others. Whenever someone asks a question, I try to get back to them asap. I ask questions back. I jibe. I try to be serious, but stay playful. My fans seem to respond well to that.

10. EDUCATE WITH TRANSPARENCY

Principle: One business strategy is to reveal more inside information than your competitor with the hope that it shames them into revealing more information so that consumers can then choose the competitor with the slimmer profit margin, i.e., you. Because transparency instills honesty, it puts you way ahead of the pack.

Practice: I've made little secret how much each of my perks cost, but I'm also going to release a spreadsheet that details ALL perk costs (in money and time) and the exact profit margins. My 10 AM chats are an insider view to me as a person, but also an insider's view of Dimeword. I'm also going to use the telethon today to write a story live, and then explain how I write a 100 word story. How's that for pulling back the curtain?

Results: I've always been in favor of transparency because it's a mark of respect to your customer. Rather than dissuade customers from your product by letting them see exactly how much money you make, transparency tells them that you think they're smart enough to see the numbers and recognize that well-earned profits are well deserved. Everyone knows Apple has a 90% profit margin, but we keep buying their computers because we get such amazing value out of their products.

The overall take home message is that one hell of a lot goes on behind the scenes to make a campaign successful, much of which happens years beforehand. And some stuff isn't as obvious or as measurable as we would all prefer. For example, how much impact does a written "Thank you!" on a perk package make in helping to forge a stronger connection with a fan? For the indie artist without marketing resources to track the minutia of customer relations, we may never know.

What I do know is that, without Dimeword, I might have never found my highly dedicated fans. If there's one lesson that should linger here, it's this: the heart of business, the heart of providing solutions to customers and, indeed, any interaction with anyone for anything, is about connecting. Artists aren't in the business of making art. They're in the business of connecting with others through art. You can connect with others 1000 different ways -- Techdirt is rife with examples of exactly that -- but they're all essentially a variation of being human enough to discover what you have in common with others and then allowing them a chance to converse with you about it. From those connections, sales happen naturally.

One of my favorite quotes is from The Big Kahuna. The veteran salesman tells his young sales associate:

It doesn't matter whether you're selling Jesus or Buddha or civil rights or 'How to Make Money in Real Estate With No Money Down.' That doesn't make you a human being; it makes you a marketing rep. If you want to talk to somebody honestly, as a human being, ask him about his kids. Find out what his dreams are -- just to find out, for no other reason. Because as soon as you lay your hands on a conversation to steer it, it's not a conversation anymore; it's a pitch. And you're not a human being; you're a marketing rep.

Or, as someone put it to me years ago, "People like to buy from warm and fuzzy."

Ross Pruden is a writer-filmmaker behind Dimeword, a crowdfunding campaign to fund new literature for the public domain. A live telecast is happening now until 10PM PT, and details are listed at Dimeword.com. Today is the last day of the campaign, and the lowest tier is just $1 -- the best value of all the tiers. Sacrifice today's latte and make Chris Dodd cry!

With the EU Parliament rejecting ACTA over the summer, and the Japanese legislature doing a drive-by ratification, there are some legitimate questions as to whether or not ACTA will ever become a real, valid international treaty. Without the EU's support, it's a hell of a lot less likely, certainly. I'd been joking that it was beginning to look like it's going to become an agreement between the US... and Morocco, but the actual process to make ACTA official requires six participants to have "ratified" it. While a bunch of countries have signed, that's still a step short of ratification. And, to date, only Japan has done so (though there are arguments over whether or not the US needs Congressional approval for ratification). Monika Ermert, over at IP-Watch, details the current situation. Here's a snippet:

With an apparent stalemate between the US administration and legislators about ratification procedures and the European Union out after the Parliament voted against the agreement, it looks as if there is still an uphill battle to get to reach that number.

Besides the EU and Japan, seven governments have signed ACTA (Australia, Canada, Morocco, New Zealand, Singapore, South Korea and the United States). Switzerland has not signed nor ratified.

“Not much is happening on the Canadian front,” wrote Michael Geist, Canada Research Chair of Internet and E-commerce Law at the University of Ottawa and long-time ACTA observer. “Canada signed ACTA, but has not ratified. Ratification would likely require some legislative amendments,” Geist said, and until those changes are introduced the country would not be positioned to ratify. There may be, according to Geist, linkage between ACTA and CETA (the Canada-EU Trade Agreement) under negotiation.

Britton Broun, media advisor of the Economic Group in the Ministry of Business, Innovation and Employment of New Zealand, responded to Intellectual Property Watch by saying: “While New Zealand has signed ACTA, the government has not yet taken a decision on its ratification.”

As we've discussed, Australia's Parliament has already recommended rejecting ACTA, and it appears that ratification has stalled out there as well. Ermert suggests that really the only way that ACTA might reach the necessary levels of ratification will be if other countries follow Japan's method of approval -- by which they effectively sneak it through.

Along those lines, her report confirms what we'd heard about how the ruling party in Japan effectively got ratification without actually bothering to allow the opposition to take part:

But on 31 August, a committee of the House of Representatives, and on 6 September, the full House of Representatives pushed ACTA through, each time counting only the votes of the ruling party.

“To ratify an international treaty without the attendance of all opposition parties means a collapse of democracy in Japan,” warned Suzawa.

While ACTA hasn't received that much attention in Japan, allowing the government to get away with such shenanigans, it seems likely that any attempt to do something similar elsewhere would be met with more widespread resistance. In other words, it seems unlikely that enough countries will actually get around to ratifying ACTA -- though we should never underestimate the tricks that lobbyists and diplomats will pull to try to shove this ugly pig over the finish line.

We recently talked about how the House voted to approve the FISA Amendments Act (FAA) by a pretty wide margin, and noted some of the more bizarre and inaccurate statements that Representatives made in support of the renewal. Julian Sanchez has put together a nice summary of some of the more outrageous claims. The key here is that many Reps. seemed to take the FISA Amendments Act at face value, that it would only be used to target foreigners in foreign lands -- in other words, those with no 4th Amendment protections. But, as Sanchez has pointed out repeatedly, former Deputy Attorney General, David Kris, more or less revealed the Act is interpreted to mean that as long as the information they get might be useful in targeting foreigners in foreign lands, it's fair game. That means -- contrary to the direct claims of many FAA supporters -- the law is used to spy on Americans.

Sanchez also highlights another sneaky interpretation. The law claims that it prohibits the interception of "purely domestic" communications. But there's an additional clause with one hell of a loophole: "Known at the time of acquisition." As Sanchez notes, you can drive quite a large truck through that loophole, because if you're, say, scooping up all email communications, you don't know -- at the time of acquisition -- if it's purely domestic... and therefore, you're good to go. Basically, ignorance is bliss for the NSA.

But these two massive loopholes and sketchy interpretations seem to be totally ignored by the Congressional reps who spoke out most strongly in favor of renewing the FAA:

The most common refrain from FAA supporters was that the law only concerned surveillance targeting “foreigners in foreign lands”—meaning it could not possibly affect the rights of Americans. Rep. Trey Gowdy (R-SC), in an impressive display of lung power, delivered a five minute floor shout to this effect. “This bill has nothing to do with Americans on American soil,” Gowdy thundered, “This bill doesn’t implicate the Bill of Rights, any more than it implicates any other part of our Constitution, unless you think that foreign nationals who are on foreign land fall within the protections of the United States Constitution.” But Gowdy has to know that this is false, because the secretive Foreign Intelligence Surveillance Court has already ruled on at least one occasion that surveillance authorized by the FAA did violate the Fourth Amendment’s prohibition on “unreasonable searches and seizures.”

Similarly, we've seen how the NSA absolutely refuses to say how many Americans have been spied upon using these tools, claiming that it's impossible to know (or that it would violate their privacy to find out -- seriously). But, Sanchez notes that, despite the NSA insisting it's impossible to know, that didn't stop Representatives from claiming they just knew.

Intelligence Committee Chairman Mike Rogers (R-MI) was slightly more equivocal, seemingly acknowledging that the law might permit surveillance of Americans, but that this would happen only very rarely.  The mystery here is how he could possibly know that. Sen. Ron Wyden (D-OR) has repeatedly asked the NSA for a rough ballpark estimate of how many Americans—100? 1,000? 100,000?—have had their communications caught up in the agency’s FAA dragnets. If Rep. Rogers were correct, you’d expect the answer to be “almost none”—but instead the agency has repeatedly insisted that it is unable to provide even an approximate figure. Unless Rep. Rogers somehow knows things about the NSA’s databases that the NSA does not know, he can’t have any real basis for this claim.

And then there's Rep. Dan Lungren. Earlier, we had noted that when there were discussions during hearings about the FAA, he brushed off concerns about spying on Americans by saying he hadn't seen any such evidence so it couldn't be true. Of course, he didn't bother to seek out any such evidence by asking the NSA to provide the data. And here he was even worse, making bizarre claims in support of expanding the FISA Amendments Act that seem to go completely against reality.

Finally, Rep. Dan Lungren (R-CA) suggested that the necessity of the FAA was demonstrated by the failures of intelligence leading up to 9/11. After all, the 9/11 Commission had again and again emphasized the central failure to “connect the dots” that would have revealed an imminent attack before it occurred—and to “connect the dots,” Lungren asserted, intelligence agencies would need still more expansive power to first “collect the dots.” This is, in a way, the most breathtakingly erroneous statements heard during Wednesday’s floor debates, because turns the 9/11 Commission’s findings completely on their head. Their report conspicuously did not identify a lack of legal authority to conduct surveillance as a serious problem: If anything, the trouble was that agencies were drowning in information they lacked the capacity to analyze and put to use. Perversely, Lungren trades on a familiar phrase—”connect the dots”—to utterly invert the Commission’s diagnosis of the causes of 9/11.

So... if you're keeping track at home, the reasons the House approved this horrible bit of legislation with massive loopholes that allows the NSA to spy on us is because it can't be used to spy on us (even though it can), it bars the collection of domestic communication (except in nearly every case that it does not), it's barely been used on Americans (except that the NSA claims it's impossible to tell how many Americans it's been used on) and we need it to "connect the dots" on terrorism (even though it doesn't help connect the dots, but merely to provide even more dots, many of which will distract from the important dots).

How do these people get elected?

For some strange reason, a large number of schools adhere to the notion that their students are not actually citizens of the United States and therefore, not granted the same rights as the "grownups." The rationale for the limitation of these rights usually involves the word "safety," a word that has been (ab)used in various forms to curtail rights of full-grown American citizens in other arenas.

This isn't to say that all, or even most, schools are violating students' rights, but the sheer number of incidents reported isn't very comforting. Fortunately, some decisions are being handed down that should, if nothing else, provide precedent for those challenging administrative overreach.

On September 6, a decision was handed down in a suit brought against the Minnewaska Area School District (Minnesota), dealing with a twelve year old student who was coerced into giving school officials the password to her Facebook account so they could search it for messages they deemed inappropriate.

R.S. was a twelve year old student at a Minnewaska Area middle school. She posted a message to her Facebook page about an adult hall monitor at her school:

"[I hate] a Kathy person at school because [Kathy] was mean to me."

The post was only accessible to her friends. One of her friends brought the post to the attention of the administration. The principal called R.S. into his office and told R.S. “that he considered the message about Kathy to be impermissible bullying.” (???) As a result of the message, R.S. was required to apologize, given detention, and received a disciplinary notation in her records. R.S. was disciplined a second time when she expressed her chagrin that someone had told on her (“I want to know who the f%$# told on me.”) [“f%$#” in original] This time she was disciplined for “insubordination” and “dangerous, harmful, and nuisance substances and articles.” (???)

Venkat Balasubramani has added his own punctuation to some of the more dubious or ridiculous statements made by school officials. First off is the charge of "impermissible bullying" (there's a "permissible" variety?), a broad term used nearly as often by school administrators as "disorderly conduct" is used by cops.

In essence, "R.S." was punished for "being a kid" (i.e., not liking something that happened at school, complaining, being ratted out and complaining about that, etc.). The handling of this first incident makes the school appear to be as vindictive and thin-skinned as the child they punished.

This isn't the end of the story, however. The school also received a complaint from a parent that R.S. was discussing "sexual topics" with another student "on the internet." For whatever reason (most likely stated as "concern for her safety"), the school decided to pull R.S. from class and grill her about the particulars of these conversations. Apparently, her answers weren't good enough, so three school counselors and a taser-armed cop interrogated her until she gave up her Facebook password. They proceeded to search her account, including private messages, for evidence of these conversations. Still not satisfied, they decided to search her private email messages.

After this traumatizing and intrusive incident, R.S. decided to sue the school district for violating her constitutional rights. The court agreed with her on both claims:

First Amendment claims: The court has no trouble concluding that assuming the facts as alleged as true, school officials violated R.S.’s First Amendment rights. The court says that posts on social networks are protected unless they are “true threats” or are reasonably calculated to reach the school environment and pose a safety risk or a risk of substantial disruption of the school environment. R.S.’s posts were not true threats. Even assuming the statements were reasonably calculated to reach the school audience, there was no possibility of disruption.

Fourth Amendment claims: The court also says that the school officials violated R.S.’s Fourth Amendment rights to the extent they rummaged around in her Facebook page and her private email account. Private emails were like letters of other private conversations, and subject to Fourth Amendment protections. Private Facebook messages are no different. There was no evidence that the officials tailored their search to minimize the intrusion. Even if they had, they had no underlying basis to search in the first place.

If the alleged facts are true (and the court takes care to point out this "if"), the school will likely be writing out a settlement check. This decision, a response to the school's motion to dismiss, also allows for claims of invasion of privacy (although it does dismiss claims for "intentional inflection of emotional distress"). It doesn't seem like the school is debating the facts as presented, not if its argument that R.S.'s violation of Facebook policy (she's 12 and you "have" to be 13 to sign up for an account) means she's entitled to fewer constitutional rights is any indication.

Eric Goldman adds his own analysis, pointing out the inherent problem with most bullying policies/legislation:

[I]t's a good example of how administrators might use the "bullying" label as a pretextual justification for punishment. The term "bullying" has way too much semantic ambiguity, but it should never stretch as far as calling another person "mean."

This is something administrators should keep in mind when crafting/revamping school policies. They should also be reminded of this simple fact, as stated by Judge Michael Davis in his decision:

For more than forty years, the United States courts have recognized that students do not check their First Amendment rights at the schoolhouse door.

"Safety" does not trump rights, just as surely as "policy" does not trump (or at least, shouldn't) trump common sense and proportionate responses.

A somewhat troubling ruling has come out of a court in the Netherlands, where it has found that linking to infringing content could be infringing itself, if certain conditions are met (which they were in this case). The key part here was that the site that was sued was linking to material first, and thus revealing it to the world... even though it does not appear that the site in question uploaded or hosted the content. This is troubling for a variety of reasons which we'll get to, but first the background of the case.

A Dutch television presenter, Britt Dekker, did a nude photoshoot for Playboy, and a bunch of the images leaked ahead of the December, 2011 release of the magazine. A website called GeenStijl.nl had a story about it, and included a link to a zip file that contained all the images that had been uploaded to the cyberlocker FileFactory.com. Playboy had the file taken down from FileFactory, and GeenStijl linked again to the same images on Imageshack. And from there a game of whac-a-mole followed with Playboy having the images taken down, but the images quickly spread all over the place. For what it's worth, at the time, there was a lot of speculation that Playboy itself had leaked the images to build up buzz.

Either way, GeenStijl got sued for copyright infringement -- and they responded by pointing out that they just linked to the content. The court put forth a three pronged test, and found that GeenStijl, even with just links, met the criteria for infringement. As explained on the FutureOfCopyright site (linked above):

The court considered if the publishing of the hyperlinks by GeenStijl.nl constituted a publication (Dutch: ‘openbaarmaking’) as defined in article 12 of the Dutch Copyright Act. In principle, placing a hyperlink on a website is not a publication, unless three criteria are met: there must be an intervention, a new audience and profit.

• Intervention: The leaked pictures of Britt Dekker were stored on FileFactory.com, a cloud service to store files and share them with others. However, these files can’t be found through search engines, only users with the exact URL have access to the files. The URL to the file with the leaked pictures was publicly unknown, until GeenStijl.nl made it available to its large audience by publishing an article about it, the court says. Therefore, the actions of GeenStijl.nl are an intervention, according to the court. Without this intervention, the public wouldn’t have had access to the pictures before their official publication in Playboy.
• New audience: According to the court, there wasn’t an audience for the pictures before GeenStijl.nl published its article.
• Profit: By publishing the URL to the pictures, GeenStijl.nl had the unmistakable intention to attract more visitors, the court states. With success: in 2011, the article about Dekker was the best viewed topic on GeenStijl.nl, according to the statistics.

By my reading, all three of the prongs of the test, as presented here, are somewhat problematic. The reasoning on the first prong -- intervention -- just doesn't seem right. The claim that "the public wouldn't have had access" but for the link on GeenStijl isn't true. They did have access since the files were already on the cyberlocker. GeenStijl perhaps made it a lot more widely known, but at this point you're arguing about whether or not it's legal to make a factual statement. Did the photos exist on a cyberlocker? Yes. Saying so shouldn't be infringing.

The second prong really just seems like a repeat of the first prong. The entire argument that seems to have convinced the court is that GeenStijl was the first to link to the content. Under US law you face much more liability for leaking "pre-release" material, so you could argue that this is a similar situation in the Netherlands, but again, it's not GeenStijl "leaking" the material. They're acting as a journalist, telling people such content exists.

The final prong is completely useless. Basically it seems to say that because the article was popular, that's evidence for infringement. I can't see how that makes any sense at all. If GeenStijl was, for example, selling access to the images, then there's a much stronger argument of "profit." But just saying that because the site got a lot of traffic, they profited seems like a dangerous precedent.

The Future of Copyright article mentions the cases against FTD as being similar, but I'm not sure that's true. While a lower court had found FTD guilty for linking, on appeal it was said that links weren't the problem, it was the promoting of uploads that got FTD in trouble.

Either way, it's of little surprise that Tim Kuik, the head of the Dutch anti-piracy group BREIN, is cheering on this ruling, suggesting that this case will be useful in other efforts to go after sites that link to infringing content. Of course, given the specific nature of the ruling, including how much of it seemed to rely on the fact that GeenStijl was the first to somehow create an audience for these images, I do wonder if it really has that much value for BREIN in those types of cases. Similarly, it may be a bit exaggerated to claim -- as GeenStijl did in response to the ruling -- that the ruling outlaws Google. Again, the ruling does appear to be highly fact-specific.

It is a troubling ruling for a number of reasons. Merely setting up the precedent that a link itself is infringement has all sorts of problematic implications. But the highly specific details associated with the ruling, especially the reliance on being the first to publish the link, at least suggests that this has limited value as a wider precedent.

The Electronic Communications Privacy Act (ECPA) is ridiculously outdated. It was passed in 1986, and to this day provides the (incredibly inconsistent and difficult to apply) rules for what sort of privacy electronic communications have, even though the technology has changed drastically. This has created some wacky consequences, including that (for example) emails have different privacy protections when an email is being written compared to when it's being sent compared to when it's been received compared to when it's been read compared to when it's been archived. As an example, since most messages did not stay on servers for very long (they were downloaded and deleted), the law decided that messages stored on a server for more than 180 days were considered "abandoned" and subject to even lower standards of privacy protections. Think about that the next time you open your Gmail account... ECPA has lots of problems, but the basics are this: it certainly didn't anticipate an era where most of the things we do were in the so-called "cloud," and it takes almost no account of the expectation of privacy.

Last year, Senator Pat Leahy introduced an ECPA reform bill that was mostly good. It basically said that if the government wants to get access to your data on a server, it first needs to obtain a warrant -- something that is sorely missing today. There were some loopholes that concerned us, but for the most part, it was a very big improvement. And it went nowhere. Now, many folks around here will remember Senator Leahy for being the driving force in the Senate behind PIPA -- and you may be quick to want to dismiss his actions here. But just because he's (strongly) supported that bad bill, it doesn't mean that everything he introduces has been similarly problematic.

Leahy is trying again to move forward with his ECPA reform plan, this time attaching it to an update of the Video Privacy Protection Act (VPPA). We've discussed the VPPA before. The short version is that it was a special law that bars the release of video rental info, passed in response to Supreme Court nominee Robert Bork having his video rental history leaked. But, of course, in this modern age where people automatically stream their music playlists or book purchases to Facebook... Netflix is left out in the cold, because the VPPA doesn't allow them to do the very same thing. So, there's an update to the VPPA making the rounds that basically changes the law to let you tell the world what you streamed from Netflix last night (if you so choose to share that kind of info).

That bill has a chance to actually go somewhere, and it looks like Leahy sees it as another chance to see if he can get his ECPA reform package through the Senate. While it's no secret that I've had my differences with various Leahy proposals in the past, this is a reform that is badly needed to protect our privacy from government intrusion. Requiring a warrant to access your info in the cloud is a common sense move that's long overdue.

As long as there have been cops, there have been crowds. And as long as there have been crowds, there has been the mantra, "Move along, nothing to see here." Dispersing crowds has always been part of police work. But in recent years, the crowd dispersion process has broadened to include anyone whose presence isn't wanted. This overreach has led to the catchall charge "disorderly conduct" being used to cover all sorts of behavior, much of which isn't so much "disorderly" as it is simply "annoying" to the law enforcement officers in question.

This "stop irritating me" via handcuffs has become so common it has its own term: "contempt of cop." Abusing the intent of the law to shut someone up (or confiscate their recording equipment) has become so common that entire blogs and websites are able to fill page after page with accounts of these actions.

Fortunately, the judicial system has pushed back. A decision handed down recently by the 7th Circuit Court goes even further than simply declaring a certain situation as being unconstitutional. Judge Joel Flaum's decision actually invalidates a section of Chicago's municipal code.

First, the background:

Buddy Bell participated in a January 2008 protest against the Iraq War in downtown Chicago. While President George W. Bush was at a luncheon nearby, Bell held a banner that said: "End the war and occupation TROOPS HOME NOW."

After Chicago police arrested a protester who entered the street carrying a banner, Bell and two other protesters also stepped into the street and approached the police squad car, chanting, "Hell no, we won't go. Set him free." When the activists refused to get back on the sidewalk, the police arrested them for disorderly conduct.

In particular, the police charged Bell under a Chicago municipal code that makes it a crime to disobey a police officer's instruction to leave the scene when other individuals are engaging in nearby acts of disorderly conduct that "are likely to cause substantial harm or serious inconvenience, annoyance or alarm."

Unfortunately, this sort of catch-all charge is far from unusual. Bell's filing of a federal complaint against the city of Chicago isn't that unusual, either. Many cities are finding themselves paying out thousands of dollars to settle lawsuits stemming from abuse of citizens by law enforcement. Bell challenged this particular part of Chicago's municipal code as unconstitutional. District Judge John Darrah originally dismissed Bell's claim for "lack of standing," but the Seventh Circuit Court reversed the dismissal.

Judge Flaum went further, invalidating that particular section of the Chicago Municipal Code after finding that it "substantially inhibits protected speech and is not amenable to clear and uniform enforcement."

"To the extent that [the ordinance] authorizes dispersal when an assembly creates or is threatened by 'substantial harm,' it does not improperly infringe upon protected speech," Judge Joel Flaum wrote for a three-member panel. "We cannot say the same, however, for authorizing dispersal on the basis of 'serious inconvenience, annoyance or alarm.'"

Unlike the code's provision for responding to nuisances, the ordinance "does not specify what inconveniences, if performed by three or more individuals, may trigger an order to disperse," the 35-page decision states.

"Nor does it clarify that, whatever the inconvenience at issue, dispersal must be necessary to confront the violation," Flaum wrote. "To this end, the ordinance lacks the necessary specificity and tailoring to pass constitutional muster, and we must conclude that the ordinance substantially impacts speech."

Flaum does more than shut down a purposely vague ordinance. He also throws in a dig at the circumstances that called this ordinance into question ("if performed by three or more individuals"). He also calls attention to the other terms used to justify charges being brought under this code, noting that "alarm" is still dangerously non-specific, but saves the real criticism for "annoyance."

As for "annoy," Flaum noted that the ordinary meaning, "which is 'to trouble, to vex, to impede, to incommode, to provoke, to harass or to irritate,' compels this reading: not every annoying act gives rise to imminent danger or nuisance."

"Avoiding annoyance is never a proper basis on which to curtail protected speech," he wrote.

"We cannot conceive of an annoying behavior, however annoying it may be, that could constitutionally draw as a remedy dispersing others engaged in protected speech," Flaum added.

Chicago's stance is that this ordinance is in place to ensure "safety." But safety for whom? Certainly not the public. And does law enforcement really need to be kept safe from "inconvenience, annoyance and alarm?" The Seventh Circuit Court says it doesn't, not if the cost of the safety is the Constitutional rights of citizens.

As Techdirt has reported, open access (OA) is scoring more and more major wins currently. But the battle to gain free access to academic research has been a long one. One of the key moments was the launch of the Budapest Open Access Initiative (BOAI) ten years ago, which saw the term "open access" being defined for the first time:

By "open access" to this literature, we mean its free availability on the public internet, permitting any users to read, download, copy, distribute, print, search, or link to the full texts of these articles, crawl them for indexing, pass them as data to software, or use them for any other lawful purpose, without financial, legal, or technical barriers other than those inseparable from gaining access to the internet itself. The only constraint on reproduction and distribution, and the only role for copyright in this domain, should be to give authors control over the integrity of their work and the right to be properly acknowledged and cited.

To mark that first decade, the BOAI site has published a series of further recommendations for the next ten years, with the aim of making "open" the default for peer-reviewed research literature.

The first is that:

Every institution of higher education should have a policy assuring that peer-reviewed versions of all future scholarly articles by faculty members are deposited in the institution’s designated repository.

This is to ensure that copies of research, including theses and dissertations, are always available from some independent online collection or database of articles, and not just from publishers, for example. The first guideline also comes out against

the use of journal impact factors as surrogates for the quality of journals, articles, or authors. We encourage the development of alternative metrics for impact and quality which are less simplistic, more reliable, and entirely open for use and reuse.

The question of whether to pay attention to impact factors -- an attempt to gauge influence in the academic world -- is a vexed one: most people agree it's a dreadful way to measure someone's achievements, but institutions keep on using them anyway when handing out jobs and money. It would be a real achievement if the new BOAI guidelines helped bring in better ways of measuring academic quality.

The second recommendation is that "the optimal license for the publication, distribution, use, and reuse of scholarly work" is CC-BY – that is, attribution. It's a bold move, since CC-BY gives users a lot of freedom that authors are sometimes reluctant to grant. Here's a good explanation of why that's a sensible position to take; it's from a blog post about the new recommendations by Peter Suber, one of the key figures in the open access movement:

The purpose of OA is to remove barriers to the scholarly uses of scholarly literature, without harming scholars. There’s no legitimate scholarly need to suppress attribution to the texts we use. And in any case, suppressing attribution would hurt authors. If they don’t get paid for their articles, at least they should get credit. Their impact and careers depend on that.

The third recommendation picks up on the first, and goes into some detail about how institutional repositories should work. That's a reflection of the fact that such repositories are widely accepted now, so the issue is more a question of optimizing their use.

Finally, there is a recommendation on advocacy and coordination that includes the following:

The worldwide campaign for OA to research articles should work more closely with the worldwide campaigns for OA to books, theses and dissertations, research data, government data, educational resources, and source code.

We should coordinate with kindred efforts less directly concerned with access to research, such as copyright reform, orphan works, digital preservation, digitizing print literature, evidence-based policy-making, the freedom of speech, and the evolution of libraries, publishing, peer review, and social media.

That clearly touches on many of the key issues covered here on Techdirt, and represents a radical and welcome extension of ambitions by proponents of open access. That they feel in a position to make this move is a measure of just how much they have already achieved in the ten years since the Budapest Open Access Initiative was announced.

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