It appears that Italian luxury brand Dolce & Gabbana doesn't feel that trademark law has room for jokes. It has sued a small Capetown, South Africa store called "Dolce & Banana." It seems like the shop might have a reasonable parody defense, but in the end, it really is just a joke. Is anyone actually fooled into thinking this shop is somehow connected with the luxury brand? That seems doubtful. Either way, the store has changed its name from Dolce & Banana: To just "... & Banana" Of course, the woman who runs the store, Mijou Beller, apparently took to Twitter asking the luxury firm why it was bothering:

“Dear Stefano, please let us be. And visit us in Cape Town. I have always admired your famous sense of humor so present in your brand and in your designs. And although I appreciate that Dolce & Gabbana is a very successful commercial enterprise, I fail to understand why Dolce and Banana is a threat.”

In the end, it's that final point that is the key. How was this brand doing any damage at all to D&G?

Artificial intelligence projects are getting better and better at playing games against humans. Pretty soon, we'll just let computers play games for us -- because they'll be better at them. Here are just a few more interesting links on AI research playing with games.

• Space Station Invaders is a video game created by a computer program named Angelina -- a piece of software meant to help human game designers. Angelina's creator says, "In theory there is nothing to stop an artist sitting down with Angelina, creating a game every 12 hours and feeding that into the Apple App Store." [url]
• A machine-learning system from MIT has "understood" the meanings of some words only by playing Civilization and having access to the player's manual for the game. This algorithm plays better if it has read the manual -- just like human players? [url]
• Dr. Fill is a crossword-player program that performed better than a lot of humans at the American Crossword Puzzle Tournament in Brooklyn. It finished 141st out of 600 (if it had been ranked officially with human players), and after losing, it said bluntly, "I'll be back." [url]
• To discover more interesting tech-related content, check out what's currently floating around the StumbleUpon universe. [url]  

By the way, StumbleUpon can recommend some good Techdirt articles, too.

Last week, we introduced this month's selection in the new Techdirt Book Club— Copyfraud and Other Abuses of Intellectual Property Law by law professor Jason Mazzone—and posted the first half of Chapter 3, which deals with Samples and Mashups and touches on some important moments in the history of copyright law (and hip-hop). Today we've got the second half of that chapter, which looks at the ongoing effects of the laws in this area on things like The Grey Album and the mashups of Girl Talk, and notes how it would be almost impossible to make an album like The Beastie Boys' Paul's Boutique today.

We'll be having our discussion with the author towards the end of the month, so there's still plenty of time to pick up a copy of the book. You can find it at Amazon in hardcover or ebook form (those are both affiliate links, so we get a tiny cut if you buy via them) or get it from lots of other sources. It's also available to check out from many libraries. Stanford University Press also has some ebook rental options. If you don't read the book but still want to participate in the discussion, you can still ask questions based on this sample chapter, as well as Jason's original paper on Copyfraud. He was also recently on the Surprisingly Free podcast discussing the book.

For now, enjoy the rest of Chapter 3! Don't forget to read the first half.

Over at Slate, Ray Fisman has an excellent article discussing some recent research on how patent trolling hinders innovation. Much of the story focuses on the research of Catherine Tucker at MIT, which looked specifically at patent trolling in medical imaging, and presents incredibly compelling evidence of just how massively innovation is hindered in that space, thanks mainly to patent trolling by famed patent trolling giant, Acacia. To account for other possibilities, she compared both medical imaging storage and medical text storage systems. Both types of software are similarly complex, and many of the first sued produce both kinds of software -- but the patent lawsuit here only impacted the imaging side of the business. But the results were clear: Basically, the companies that got sued started selling a lot less product on the imaging side -- but remained about equal on textual data storage. The same was not seen for those who were not sued. To account for the idea that this might have been due to a sudden drop in demand, she also researched the number of RFPs (requests for proposal) that were sent out for both medical imaging storage systems and textual data storage systems -- and saw both continue to increase at pretty massive rates. In other words, demand remained quite high (and growing) even as sales massively dropped.

So why the sharp drop? Basically, the companies that were sued stopped innovating. As Fisman summarizes:

Why the slowdown in sales? Imagine what would happen to iPhone sales if Apple’s last product was its 3G phone introduced in 2009: Android-based devices would be running away with the market. Tucker claims that at least part of the reason imaging software sales were slowed by the Acacia suit is that R&D at the affected companies went into a deep freeze. In the two years following the suit, none of the defendants came out with a single new version of their products, while improvements continued in their text-based systems and at smaller competitors not subject to the suit.

One of the most difficult things about discussing how the pace of innovation is held back is the difficult of showing what doesn't happen. We get this all the time, where people who can't understand the difference between absolute changes and the rate of change, insist that because there is still innovation in a market, that innovation hasn't been hindered. Of course, that's ridiculous. No one is saying that all innovation ceases. The concern is merely with the rate of change: the pace of innovation, and how it may be slower than would otherwise be seen. The difficulty, of course is in how do you show what would have been? That's the most challenging part. But this study does a really nice job of showing how innovation in the space slowed down massively just after the lawsuits, when there's almost no other explanation for how that might have happened. It's an incredibly damning report against patent trolls and how they hinder innovation.

In yet another example of overactive copyright law blocking legitimate content, we find this story from Marco Arment, creator of Instapaper, about Zazzle's abrupt and unfriendly treatment of its supposedly (but not actually) infringing customers.

Marco, who is no stranger to copyright concerns, recently used Zazzle to sell a jokey mug based on bad reviews of Instapaper:

Later in the day, after the mug had racked up 116 sales, all the customers were told that their orders had been cancelled because the mug violates Zazzle's acceptable use policy—apparently the "design contains an image or text that may be subject to copyright."

May be subject to copyright? Anything and everything may be subject to copyright. If that's the bar they're using to determine what's allowed on Zazzle, nothing will exist there at all. Besides, usually when you come across something that may have a problem you check to find out if it actually does. But that's not what happened here.

Meanwhile, Marco himself got nothing—Zazzle gave him no explanation at all. Of course, it's important to pick your battles, and even though Marco knows damn well there's no issue of this "maybe" infringing (there is no infringement), he has no intention of fighting this. Instead he's opted to send a message on his (quite popular) blog:

"Now I just know that Zazzle sucks, and I’ll never do business with them again."

And, because Zazzle may suck, perhaps you won't want to do business with them either.

It's not entirely clear what led to Zazzle cancel the orders, but since Marco was never informed about a complaint, it was probably an automated filter, possibly with some lax human review. But computers aren't very good at identifying copyright infringement, and neither are most people‐not even rightsholders themselves. That's not really surprising, since copyright law is insanely complex, but online services that feature user-generated content still face all sorts of pressure from various industries, insisting they somehow magically detect and stop all infringement. Some cooperate, so you end up with overactive filters that inevitably block all sorts of legitimate content—then you end up with rightfully pissed off customers complaining in public.

You may remember, in the wake of the SOPA/PIPA fight that Paramount Pictures (a Viacom company) reached out to a bunch of top law schools, asking if it could send its "Worldwide VP of Content Protection and Outreach" (seriously), Albert Perry, to teach the students about the evils of "content theft." It appears that Brooklyn Law School took them up on the offer, and Brooklyn Law school prof Derek Bambauer wrote up some great notes on the session. The law school also had professor Jason Mazzone (author of Copyfraud and this month's Techdirt book club author) provide a "response" to Perry.

Honestly, the talking points won't surprise anyone who pays attention to this stuff. Perry argues that Hollywood is suffering massively from "content theft" and that something must be done. Mazzone, thankfully, points out that Perry is being disingenuous in using the word "theft," when it's not theft under the law or in reality. Using the word "theft" unfairly biases the discussion and ignores both the realities of copyright, and the fact that copyright is not absolute. Perry, however, can't let go of the term, apparently. You could sum of Perry's talk by basically saying "well, the big Hollywood studios are suffering, and it's everyone's fault but our own."

He literally admits that there may be more indie films and such, but that those aren't the films that anyone cares about. Instead, you see, culture will be worse off if Hollywood can't produce the next Transformers movie:

While he said he didn’t want to get into copyright math, Perry noted that the number of films released by the six major motion picture studios has dropped from 204 in 2006 to 134 in 2011.... He suggested that online infringement affects ancillary (post-box office) revenues, which isn’t captured in rosy reports of ticket sales. Perry said he doesn’t believe that infringement will wipe out content – rather, it will shift it. We’ll see more small-budget or amateur films, and fewer major studio films. These movies, he suggested, are the iconic ones that people remember and reference, so piracy may have an important cultural impact.

Of course, there are a few problems in these claims. While the big six studios may have made fewer movies, many more movies were made overall in the global economy. Just looking at the US, while the major studios released 204 movies in 2006, indies released 390. His number is off in 2011. It was actually 141 movies released by the major studios... but indies increased their release numbers to 469. So, total movies released actually grew from 2006 until 2011. That certainly suggests that everyone else in the market is figuring out how to adapt. Why should we be concerned about six companies that are unwilling to adapt? And, is that ever condescending and insulting to suggest that indie movies can't possibly have the "cultural impact" of a movie like Jack and Jill.

Perry also praised totally one-sided and misleading "education campaigns" that copyright maximalist organizations like the Copyright Alliance have been able to get into schools, ignoring things like fair use (it was also noted that Perry ignored fair use in his initial statements). It's really silly that schools are accepting industry propaganda like that to teach kids. Thankfully, more accurate alternatives are being created.

The other bit of good news in all of this is that it sounds like the students were mostly skeptical of Perry's claims, and recognize that he's exaggerating -- though it sounded like he couldn't even comprehend where they were coming from:

The discussion was impressively thoughtful and civil. The students evinced skepticism about the movie industry’s good faith and bona fides, particularly given the drafting of SOPA / PROTECT IP, and also given the recording industry’s history of suing its users. Perry pointed out that Paramount is trying hard to make content available widely, cheaply, and easily, and that the only other way of altering the reward calculus to users is to engage in enforcement against end consumers, which no one likes. He was repeatedly puzzled by the attitude of law students that infringement isn’t a big deal (since it’s unlawful), particularly when this attitude is justified by reference to movie industry profits.

In the end, while it was civil, it sounds like the same old story of Hollywood just not understanding. The profits of six organizations is of little concern to the wider social benefit, and Hollywood cannot show that there's any wider harm (because there is no such proof). Thankfully, it appears that the students (and professors) at Brooklyn Law get this important point.

You may remember a story from last year about David Nosal, a man who was essentially convicted of computer hacking because the Ninth Circuit Court of Appeals determined that he "exceeded authorized access" on his employer's computer system when he broke the written rules regarding how data on that system could be used (in this case, by accessing said data before leaving the company for a competitor). Whether or not accessing the data was some other legally actionable offense, its prosecution under the Computer Fraud and Abuse Act (CFAA) set an alarming precedent for the rest of us.

As noted at the time, if breaking any arbitrary rule a company places on its IT system is "hacking", then most office workers could be in big trouble. Did you check Facebook using a company computer? You could be charged with criminal hacking if the rules say you shouldn't. To make matters worse, as Orin Kerr argued then, prosecutions like this aren't necessarily limited to desktop computers, since the line for what constitutes a computer is so blurry these days. Did you use your company smartphone to call home and tell your wife that you'll be late for dinner? That's could be good for ten years in prison, if company policy prohibits making personal calls from it.

Of course, this isn't the first time prosecutors have tried to abuse the CFAA. Recall, if you will, the infamous case of Lori Drew, who was prosecuted under the theory that violating a Terms of Service was also the same thing as hacking. Ridiculous, to be sure, but a jury convicted her anyway. That conviction was eventually overturned by the judge in the case, but others haven't been so lucky, and given the last decision by the Ninth, things were looking pretty grim for common sense.

Happily, however, the Ninth decided to re-hear David's case en banc (meaning with all the judges, rather than a small panel of them), and has now reversed the previous ruling. The analysis by the always-entertaining Judge Kozinski makes it perfectly clear where the line is drawn:

We construe criminal statutes narrowly so that Congress will not unintentionally turn ordinary citizens into criminals. [...] This narrower interpretation is also a more sensible reading of the text and legislative history of a statute whose general purpose is to punish hacking—the circumvention of technological access barriers—not misappropriation of trade secrets—a subject Congress has dealt with elsewhere. Therefore, we hold that “exceeds authorized access” in the CFAA is limited to violations of restrictions on access to information, and not restrictions on its use.

Since decisions have gone the other way in other circuits, Kozinski goes even further, and says that other courts have "failed to apply the long-standing principle that we must construe ambiguous criminal statutes narrowly" and that they at the Ninth "respectfully decline to follow our sister circuits and urge them to reconsider instead."

Hopefully, other courts will heed this message, but for now, this is a win for everyone on the west coast.

There have been a number of silly lawsuits against Google for the fact that companies can buy AdWords ads based on trademarked terms. These lawsuits are problematic on a few different levels. First, using trademarked keywords to trigger ads isn't infringement. It's a perfectly reasonable use. In the same way that a supermarket often places coupons for certain brands/products near competing products, advertising competitors is perfectly reasonable. Second, even if there is trademark infringement, it should be limited to the advertiser itself, not to Google, who is merely the platform. Even though a few courts had more or less said this in the past, software company Rosetta Stone decided to sue anyway back in 2009. The lawsuit was dumped pretty quickly, with the court getting the big questions right (though it went a little weird on some of the finer points).

Rosetta Stone appealed, and basically got every company who hates Google to join in on the fun. Not only that, but Rosetta Stone even used its loss as a reason to support SOPA's predecessor, COICA, saying that Google is "the gateway for criminals into America."

No, I'm not joking. Rosetta Stone literally said the fact that Google allows competitors to put up ads based on trademarked keywords makes it the (not "a", but "the") "gateway for criminals into America."

Unfortunately, rather than give the company the slap down it deserves, it appears that a somewhat confused appeals court is reviving the case and sending it back to the lower court to reconsider. The reasoning in this 7th Circuit ruling is extremely troubling on a variety of levels.

Quite amazingly, the court actually suggests that there's a possibility that Google is guilty of direct infringement of Rosetta Stone's trademarks. This makes no sense. Even if you somehow twisted things to make Google liable in some manner or another, the only possible liability has to be for secondary liability, because it's not the one directly making use of the trademarks in the first place. It's providing the platform and the advertisers are using the marks. This is pretty basic stuff, and it makes you wonder the technical literacy of the appeals court panel (or why they presume to judge a case where they clearly don't understand what they're talking about).

Another bizarre point is on the question of "intent." The court accepts much of Rosetta Stone's argument that because Google changed its policy over time to allow greater usage of trademarked terms, that it had intent to infringe. While that is one possible interpretation, there are much more sensible explanations that aren't so nefarious. Google stopped allowing the use of trademarked terms early on because it was a waste of time and resources to fight stupid lawsuits like this one. As it continued to grow, it realized that there was no legal reason why it shouldn't allow such uses, and it changed its policies. And, of course, it then gets hit with a stupid lawsuit... and the court seems to use the fact that Google changed its policy as potential evidence that it "intended to cause confusion"? That makes no sense at all. Google knows damn well that if it "intends to cause confusion" that it's going to lose a trademark lawsuit. Why would it ever do that? The company made clear that it expected to get sued, but it was doing this because it believed the law was on its side. It's quite a twist to claim "intent" to "cause confusion" based on that.

Next, the appeals court accepts as evidence of confusion, Rosetta Stone finding some guy who was confused by a counterfeit reseller's site and bought a counterfeit version of their software. Note that the guy was not confused by Google, but by the third party site. The lower court smartly rejected this as anecdotal and properly pointed out that the confusion arose not from Google, but from the other site. But the appeals court rejects that argument and says that the testimony is valid.

After that, the court also moves on to the question of contributory (rather than direct infringement) and bizarrely argues that the reasonable standard set forth in the famous Tiffany v. eBay case cannot be applied at the summary judgment level. This was the ruling that found that eBay was not guilty of contributory trademark infringement for counterfeit goods sold on eBay, in part because eBay made reasonable efforts to remove the infringing content when it became aware of it. This is a reasonable standard, and one that it makes sense to use in this case also, as the lower court did. However, the appeals court basically says that this standard can really only be used after a costly and wasteful trial, even if the court could get around all that by noting the obvious fact that the service provider is a good actor in getting rid of infringing works when it learns of them.

Things get equally troubling when we get down to the question of trademark dilution. The lower court rejected Rosetta Stone's arguments here on a few factors, but the appeals court sends that back too. Specifically, the lower court pointed out that there was no dilution because Google wasn't using the Rosetta Stone trademarks to identify its own (different) products, thus there was no dilution. This is the correct interpretation of the law, because the entire point of the (very new) concept of "dilution" in trademark law is that it can't be used to "dilute" the value of the trademark by applying it to different products. Here, no one is claiming that Google is making use of Rosetta Stone's marks to impart the value of that mark on something different. So the lower court got that right... but the appeals court gets confused and denies this reasoning, instead saying that this is really a "fair use" discussion, which can only be used as a defense, rather than a proactive argument at the summary judgment stage. Once again, that's batty. It only encourages long, drawn-out, wasteful and useless trials where none are needed.

The court did accept some of the more minor arguments of the lower court, but sent back all of the major issues. Hopefully the district court does a full trial and still comes to the same (correct and reasonable) conclusion, but in the meantime, they have to waste time and resources on a silly trial that was properly dumped in the first place.

Spencer Ackerman, over at Wired, recently had a fascinating article about how the a former Bush official had written a memo detailing how the CIA had committed war crimes in torturing Al Qaeda suspects, in violation of the Geneva conventions. Wired has the full memo, but here's the first page: No matter what you think of the US's actions in how it treated prisoners and suspects, what struck me about the story is just how hard the feds worked not to release this document. The guy who wrote the memo, Philip Zelikow, revealed the existence of the memo three years ago in a blog post, leading Ackerman to file a Freedom of Information Act request to uncover it. Later, in a Senate hearing, Zelikow explained how higher ups in the administration had decided "the memo was not considered appropriate for further discussion and that copies of my memo should be collected and destroyed." Of course, what wasn't destroyed was some legally questionable arguments in favor of these "enhanced interrogation techniques."

It turns out, however, at least one copy of Zelikow's letter survived -- but even then it took almost three years from the first FOIA request until it was actually released. This was also years after the memos insisting that the activities were legal were released. For a government that keeps wanting to insist that it's being as transparent as possible, and one where political calculus is not supposed to weigh on decisions like this, it seems pretty clear that the feds were quite careful to try to hide internal reports that argue (persuasively, and with great detail) against its legal theory, but happy to reveal the much more questionable documents that support its position. This is not surprising, but it is disappointing. An intellectually honest federal government is willing to openly discuss dissenting viewpoints.

We've noted the disturbing trend by the press and politicians to totally overreact or to pump up the actual impact and/or threat of various Anonymous hacking attacks. We've also noted multiple times that such attacks can be incredibly counterproductive -- and the press and politician backlash is part of what we're talking about. However, there is a real risk in continuing to overreact to Anonymous. The most extreme example, of course, was NSA boss General Keith Alexander insisting that Anonymous might hack power grids... while also noting that it had no actual ability to do so.

Yochai Benkler has a typically brilliant essay in Foreign Affair magazine explaining why overreacting to and misunderstanding Anonymous is ridiculous and dangerous:

Seeing Anonymous primarily as a cybersecurity threat is like analyzing the breadth of the antiwar movement and 1960s counterculture by focusing only on the Weathermen. Anonymous is not an organization. It is an idea, a zeitgeist, coupled with a set of social and technical practices. Diffuse and leaderless, its driving force is “lulz” -- irreverence, playfulness, and spectacle. It is also a protest movement, inspiring action both on and off the Internet, that seeks to contest the abuse of power by governments and corporations and promote transparency in politics and business. Just as the antiwar movement had its bomb-throwing radicals, online hacktivists organizing under the banner of Anonymous sometimes cross the boundaries of legitimate protest. But a fearful overreaction to Anonymous poses a greater threat to freedom of expression, creativity, and innovation than any threat posed by the disruptions themselves.

Benkler argues that if you look at Anonymous' actions in the "context of protest," you begin to realize that what they're doing is much more about political speech than any sort of "security" risk or terrorist threat. After detailing a bunch of hacks -- where they all had political messages of sort attached to them, Benkler notes:

The political nature of these targets demonstrates why it is patently wrong to see Anonymous purely as a cyberthreat. Opinions about the justifiability of any given attack may differ, either because of the target or because of its form. The main challenge becomes one of deciding who gets to set the boundaries of legitimate protest. If one unquestioningly accepts the validity of all U.S. government decisions, as well as the current distribution of power in the private sector, the pattern of Anonymous’ attacks seems unambiguously dangerous. But surely there must be a place for civil disobedience and protest that is sufficiently disruptive to rouse people from complacence. Viewing Anonymous purely as a matter of crime reduction or national security will lead governments to suppress it and ignore any countervailing considerations. A more appropriate, balanced response to Anonymous’ attacks would err on the side of absorbing damage and making the hacks’ targets resilient, rather than aggressively surveilling and prosecuting the network and its participants.

He notes that some of Anonymous' attacks appear to go over the line from protest to something more problematic, but most of them really are just forms of traditional protest. But the overreaction threatens to hinder all sorts of online protests and speech, which is a very dangerous precedent to set. Hopefully those insisting that Anonymous is pure evil can take the time to read Benkler's full article and reconsider their views.

Ever since the Justice Department announced that they were investigating Apple and several publishers over allegations that Apple's agency model for ebook pricing violates antitrust law, we've been waiting for the other shoe to drop. Last night, Reuters reported that a lawsuit was imminent, and now Bloomberg has the news that the government has filed a lawsuit against Apple, Hachette, HarperCollins, Macmillan, Penguin and Simon & Schuster in New York district court.

Details are still scarce, but sources say Apple and Macmillan refused to participate in settlement talks while some of the other publishers are still hoping to avoid a drawn out legal battle, and may settle soon. Update: Bloomberg is now reporting that S&S, HarperCollins and Hachette have settled. It will be interesting to see what kind of defense Apple brings, because the evidence of collusion doesn't look good for them at all. Despite Authors Guild president Scott Turow's self-serving claim that this will somehow hurt culture, this is good news for readers: busting Apple's and the publishers' iron grip on ebook prices will likely reduce them across the board.

Here is this the government's complete filing (pdf and embedded below).

The Boycott Elsevier movement discussed here on Techdirt several times was born of a frustration at the high prices of academic journals. But another area arguably afflicted even more is that of textbooks for higher education:

According to The College Board, the average college student spends over $1,000 per year on textbooks. At community colleges, the cost of textbooks alone can often exceed 50% of a student’s overall educational expenses.

Is it any wonder that 7 in 10 college students have skipped buying a required text due to price concerns?

Just as with the publishing of academic papers, that translates into very fat profit margins:

The textbook publishing market is an oligopoly, with over 80% of the textbook market controlled by the top 4 publishers: Pearson, Cengage, Wiley and McGraw-Hill.

These publishers have been able to maintain nearly 65% gross margins on what is essentially a commodity product. They have continued to raise prices for this stagnant product in the face of innovation in every other information related industry, growing at a rate of 3 times inflation.

Those figures are found in a blog post from a startup called Boundless that is "committed to bringing educational content into the 21st century," by offering free texts for core higher education subjects that are designed to replace expensive traditional titles. That hasn't gone down too well with three of the leading publishers of textbooks -- Pearson, Cengage Learning, and Macmillan Higher Education -- which have just sued Boundless:

Defendant is in the business of distributing online textbooks that it claims serve as "substitutes" for Plaintiffs' textbooks. Rather than produce its own textbooks, however, Defendant steals the creative expression of others, willfully and blatantly violating Plaintiffs' intellectual property rights in several of their highest profile, signature textbooks. Defendant exploits and profits from Plaintiffs’ successful textbooks by making and distributing the free "Boundless Version" of those books, in the hope that it can later monetize the user base that it draws to its Boundless Web Site.

The nature of what Boundless is alleged to have "stolen" is rather unusual:

Notwithstanding whatever use it claims to make of "open source educational content," Defendant distributes "replacement textbooks" that are created from, based upon, and overwhelmingly similar to Plaintiffs’ textbooks. Defendant generates these "replacement textbooks" by hiring individuals to copy and paraphrase from Plaintiffs’ textbooks. Defendant boasts that they copy the precise selection, structure, organization and depth of coverage of Plaintiffs' textbooks and then map-in substitute text, right down to duplicating Plaintiffs’ pagination. Defendant has taken hundreds of topics, sub-topics, and sub-sub-topics that comprise Plaintiffs' textbooks and copied them into the Boundless texts, even presenting them in the same order, and keying their placement to Plaintiffs’ actual pagination. Defendant has engaged in similar copying or paraphrasing with respect to the substance of hundreds of photographs, illustration, captions, and other original aspects of Plaintiffs’ textbooks.

So the accusation seems to be that Boundless books are functional "clones" of existing textbooks, with the same overall organization and pagination, but with different words filling out the topics, sub-topics and sub-sub-topics. The question then becomes whether there is copyright in that arrangement.

The plaintiffs are also concerned about what they term "photographic paraphrasing":

An example of the obvious nature of Defendant’s photographic paraphrasing can be found in Chapter 8 of the authentic version of Campbell’s Biology where Plaintiff Pearson and its authors describe the First and Second Laws of Thermodynamics. To exemplify those laws, Plaintiff Pearson and its authors included two photographs, one of a bear catching and eating a fish, and another of a bear running. Plaintiff Pearson and its authors could have used any one of a universe of possible photographic subjects to demonstrate the laws of thermodynamics, but, based on the manner in which they wished to express their aesthetic and scholarly judgments, they opted for the bear engaged in these activities. In Chapter 8 of the Boundless Version of Cambell’s Biology, Defendant also discusses the first and second laws of thermodynamics. Defendant also includes two photographs to exemplify these laws, but instead of basing its selection and ordering on their own aesthetic and scholarly judgments, the two photographs Defendant includes are also of a bear eating a fish and a bear running, reflecting only the previously made creative, scholarly and aesthetic judgments of the authors and editors of Campbell’s Biology.

Is the use of a bear eating a fish a creative choice? Or is the creativity only in how the bear and the fish are depicted? In many ways, this is the same question put to a UK judge recently concerning a photo with a red double-decker bus crossing a bridge in London. In that case, rather surprisingly, the judge found that you could copyright the basic idea of a photograph.

In response to the publishers' lawsuit, Boundless says:

We’re currently preparing our full response, and we believe that the allegations in this lawsuit are without merit and we will defend our company and mission vigorously.

So it sounds as if we may get a chance to see where a US judge stands on that key issue of the idea/expression dichotomy in the case of academic textbooks and pictures of bears. This could be interesting.

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

Didier J. MARY points us to an infographic highlighting why the TSA's security theater has been such a huge waste of taxpayer money:

One of the central problems of ACTA has been its lack of transparency. TPP has also been negotiated behind closed doors, but unlike ACTA has permitted at least one small opportunity for public groups to engage with the negotiators through the use of stakeholder forums, where organizations and even individuals were permitted to give short presentations about aspects of TPP. This has allowed points of view other than those of industry lobbyists to be heard by negotiators.

But it seems that even that tiny shaft of sunlight being shone upon the measures believed to be in TPP was too bright for the US, which is hosting the next round of the negotiations in Dallas, from May 8 to 18:

"As anticipated, now that the US has taken control of the Trans-Pacific Partnership Agreement negotiations it has removed the only pretense of transparency -- the day-long 'stakeholder' programme where critics can present information and analysis directly to negotiators", says Professor Jane Kelsey, from the Law School at the University of Auckland.

The excellent site TPP Watch explains why even a few hours of transparency was so threatening:

The stakeholder presentations have offered detailed expert analyses of the legal issues and implications of TPPA proposals that many countries’ negotiators do not have time, resources or knowledge to develop themselves.

They also provide important support for the positions that countries are taking in the negotiations, especially against the very aggressive demands from the US.

Even though it is voluntary for the negotiators to attend, they often ask for follow-up discussions on the issues and how they might protect their interests -- without, of course, the advisers having access to the draft text.

In theory, there are other ways for critics of TPP to gain access to the negotiators. For example, civil society groups might hold an open meeting about TPP in the hotel where the negotiations were being held -- except that last time they tried to do that, their booking was cancelled at the behest of the USTR.

That action, taken with the latest move, shows that the US will do everything in its power to stop any kind of independent discussion of TPP taking place that might bring inconvenient issues about the treaty to the attention of negotiators from other countries. The only consolation is that this kind of bullying proves just how frightened the US is that open, transparent discussions of TPP could cause the whole thing to unravel -- and provides an additional incentive to fight for even more transparency than those stakeholder forums provided until now.

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

What would you do if you found yourself at the LA Convention Center in the middle of WESTEC -- a trade show for machine manufacturers? Well, if you're my friend Jean from Notcot, you would go around and take a ton of pictures of the warning labels found on a bunch of the machines.

There's something oddly fascinating about all of these. I've included some more below, but there are a lot more in the original post. It's like a virtual museum of warning labels. Of course, it makes you wonder (or, maybe it just makes me wonder) who designs the warning labels, and how they settle in on the graphic choices. Similarly, figuring out exactly what you warn about could be a challenge. I like the one that says you have to wear goggles just to observe this machine. I suddenly have the urge to put warning labels on all my gadgets.