Jeff Roberts has the details of a ruling in which a judge said that if one of your friends shares your Facebook profile with the police, they haven't violated your 4th Amendment rights. This actually seems pretty straightforward and reasonable. Unlike some other recent rulings, this isn't a case where police are getting access to information that some others might have access to through other means. Individuals can share what they know with law enforcement, and if you reveal criminal activity to them, that's fair game. It seems like the real lesson here is, if you're (a) going to commit crimes and (b) brag about them on Facebook then (c) you should probably know who your friends are.

Some mistakes are hard to avoid completely. Typos are usually forgivable, even when they result in some terrible misunderstandings. But job applicants are told time and time again that typos are horrendous errors, and anyone applying for a job should be especially careful about eliminating spelling mistakes and typing errors. However, focusing too much on simple errors could allow some much bigger mistakes to slide by. Here are just a few examples.

• Vanessa Hojda made a spectacularly bad email mistake by attaching the wrong file and (instead of her resume) sending a crazy-looking picture of Nicolas Cage with her job application. She didn't get the job that she was applying for, but her 15 minutes of internet fame probably won't hurt her career too much, either. [url]
• CareerBuilder has published a list of some other outrageous resume mistakes. They also list examples of resumes with a "creative approach" where the candidate was hired. Warning: there may be a fine line between creativity and stupiditry for some... [url]
• This cover letter from an aspiring Wall St trader is a bit too colorful for most financial institutions. "Please explain your rationale for the rainbow" will likely be a long-remembered response for some Wall St firms. [url]

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

There is a lot that can be said about being open and honest with your fans. Sure those fans can be pushy and complain a lot, but amongst all that, there is a real opportunity to connect with your fans and help them build up greater love and respect for you and your brand. We have seen many cases in which doing so has helped build a stronger following and bring in a lot more revenue in the process.

Despite this strong evidence for the power of being open and honest, there are still some companies that feel the need to avoid talking to the public. Any time a fan asks a question about anything, most often the responses are either silence or some form of "No Comment." When fans hit that kind of brick wall, they feel as if the company doesn't care about them and are less likely to be engaged in the future. Such responses can also lead to further complaints from the community as well as lost sales.

When the complaints reach a certain threshold, then it reaches the ears of those who have a platform in which to speak and reach a large group of listeners. So when a site like Kotaku gets on its soap box to complain about game publishers who will not engage with the community, then you know a lot of people are listening. The whole article is worth the read but I want to highlight a couple of the suggestions that Kotaku gives at the end.

• Answer questions. As many as you can. Questions are not your enemy. We're all here because we all love video games.
• Don't be afraid to tease games that are coming in the far future. We love teases. And we won't even mind if those games get cancelled, as long as you don't lie or pretend they're not.
• Just talk to us. Explain the logic behind your decisions. Help us understand you. Help us relate. Help us empathize.

They have a couple others that are a bit more specific, but these three cut to the heart. Answer questions, don't be afraid to tease, and just talk. All these things are important to fans and potential customers. These are all part of that process in getting people to not just like what you do produce, but like you as a person or a company. How can they like you if you don't engage with them? It is this engagement that promotes the transparency needed to increase sales, too.

On the other hand, by ignoring your fans you lose the power to control the conversation as well. We highlighted a story last year in which Nintendo made a very weak gesture at engaging with fans. Unfortunately, there was no such engagement and the fans took control of the conversation. Since Nintendo failed to control the conversation by being engaged, the fans began to complain about policy decisions they felt were not ideal. By not engaging, Nintendo lost a lot of good will that day. Had Nintendo actually taken the time to answer and ask questions as Kotaku recommends, they would have had a far better promotion at the time.

As more and more companies learn how to be properly engaged with their respective communities, we should see a lot more successes like those we highlight on a regular basis, such as Louis CK, Amanda Palmer and Double Fine. These people have taken the time to really build a relationship with their fans. A relationship that leads to those fans parting with their money to see more art created. Isn't that what is important?

As the campaign season is in full swing, you may be seeing more of those wonderfully annoying political advertisements showing up on social media pages and other sites. It seems like common sense at this point that, to some degree or another, the majority of Americans would like to keep the government from spying on us, but the private companies that manage political campaigns find themselves in the same boat. The difference is that far from just watching, those private companies are putting out those targeted advertisements and, according to a University Of Pennsyvania study, people absolutely despise those ads (pdf). Some highlights from the study:

• 86% of Americans say they do not want "political advertising tailored to your interests." Somewhat smaller majorities also said they don't want ads for products and services (61%) or news (56%) tailored to their interests.
• 85% agreed "If I found out that Facebook was sending me ads for political candidates based on my profile information that I had set to private, I would be angry.”
• More than 3/4 said they wouldn't return to a website if they knew if was sharing information about them with political advertisers.
• 70% say they would be less likely to vote for a candidate they support if they found out that their campaign was using Facebook to send ads to friends of that person saying they "like" that candidate's Facebook page.
• And two-thirds said their likelihood of voting for a candidate would decrease if they found out they were tailoring messages to them and their neighbors by purchasing information about their online activities, and then sending them different messages based on what might appeal to each.

In case you missed it, the recurring theme in most of those results is some flavor of the phrase "if they found out," which makes me thankful that most people are ignorant of how much of the above is already occurring on the websites people are visiting every day, otherwise nobody would vote for anyone. But the overall point is that people hate the idea of targeted political ads because it feels like an invasion, even more so (per the above results) than corporate ads. TechPresident, which covered the study, was surprised at how dismissive political ad companies were of the results.

Rich Masterson, Chairman of one such company, Campaign Grid, responded:

"The Annenberg study is interesting but raises more questions then it answers. From a methodology standpoint the researchers never asked respondents if they were registered to vote and whether or not they voted in the last election. Regrettably a majority of Americans don't show up at the polls because they have become disaffected by the process. It's unclear if the respondents are the same people who don't show up at the polls or if they are in fact engaged in the process. Secondly, the researchers made little to no effort to inform the survey respondents that the technology used for targeting is, in fact anonymous. The presumption that an individual's privacy is violated would lead one to assume the results would be negative. Lastly, there are many surveys that indicate Americans do not like negative campaign advertising, exercise or healthy diets. The fact that Americans do not like these things does not make them bad."

Let's paraphrase that paragraph and boil it down to his three points in order to highlight the problem: so many people are disenfranchised with the political process that most don't go to the polls (or vote), people would supposedly react differently if they were told that their privacy was being invaded for a positive end result, and just because people hate the way most campaigns conduct themselves doesn't make that conduct bad. It's an incredible full-circle paragraph, where we go from the problem being disenfranchised voters to the proud assertion that the very things Masterson's company is doing to disenfranchise them aren't bad. Oy.

But the other problem is one Masterson touched upon, but is better highlighted by a response from Jim Walsh and Chris Massicotte, executives at DSPolitical, another political ad agency:

"It is understandable that Americans think that they don't want political advertising tailored to them when asked directly. But the simple fact is, and as this report points out, political advertisers have been tailoring messages to Americans since the beginning of the modern political campaign. When cable TV began political advertisers would choose what channels to advertise on based on their desired demographics and sometimes tailoring different ads on different channels. Tailored online advertising is not very different from tailored direct mail, which has proven very effective."

This is exactly wrong. The difference between online advertising, particularly on social media sites, and advertising via television or direct mail is that the internet is not a broadcast medium. It's a communications tool, one which flows in many directions rather than from producer to recipient. As such, if you're going to engage in activity that everyone hates, and you're going to do it using the internet, you can expect the backlash to be huge. Your ads, particularly those that mistep or annoy, will not only turn off the recipient, but they will be commented upon, derided, all by the very same platform you used to send them. As TechPresident concludes:

"People like Walsh, Massicotte and Masterson, and the political operatives and politicians who hire them, may want to remember one key thing about the Internet. Unlike TV or direct mail, it's a two-way medium. The people who are being targeted can talk back. And lately, salient numbers of people have been talking back at all kinds of targets. If the political targeting industry and its clients aren't careful, they may find the bulls-eye painted on their backs."

Indeed.

It's political silly season, so you expect to see all kinds of ridiculous campaign ads, and in local elections they can get particularly bizarre. Most of them have little to do with technology and innovation and things that we focus on, but here's one that's been making the rounds that seems worth discussing here. A local campaign ad in Florida attacked candidate Jeff Brandes for... legalizing "driverless cars" in Florida. First, just watch it: The voice over and the graphics are pretty funny, but hilariously wrong. The idea that driverless cars are going to run down little old ladies in the street seems pretty odd -- especially when you consider the driving ability of some of those little, old ladies themselves. I've spent plenty of time in Florida, and I'd feel a hell of a lot safer with autonomous vehicles on the road than some of those little, old ladies behind the wheel.

Then, the ad "quotes" Forbes supposedly saying that "Driverless Cars for All: More DANGEROUS Than Driving." Here's the screenshot: Except... as Alex Knapp at Forbes points out, if you look at the actual article in question, it's got absolutely nothing to do with the physical safety of autonomous vehicles, but is more of a political discussion about the idea that, someday, in someone's imagination, we'll all be required to use autonomous vehicles, rather than be able to make bad distracted driving choices on our own. In other words, completely unrelated to what the ad appears to be suggesting.

But, more seriously, the ad then attacks the candidate by saying he should be focused on the economy and jobs. Um. You know one good way to do that? It's to help advance job-creating technology and innovations. You'd think that seniors in Florida would be excited, not worried about autonomous vehicles, in that they could help make them a lot more mobile.

Either way, the ad is silly, and pure misleading luddism targeted at Florida seniors. And, clearly, they didn't work, as the guy won his primary anyway. Oh, and it's worth noting that his opposing candidate -- the one that ad wanted the little old ladies to vote for? Yeah, he voted in favor of the same proposal to allow autonomous vehicles on the roads in Florida too. Ah, politics...

While Judge Lucy Koh has been so far favorable to Apple in the Samsung/Apple patent dispute, she clearly got fed up today when Apple tried to add a ton of witnesses at the last minute, telling the company's lawyer that he was wasting the court's time in no uncertain terms:

"I am not going to be running around trying to get 75 pages of briefing for people who are not going to be testifying," U.S. District Judge Lucy Koh told Apple's lawyer Bill Lee.

"I mean come on. 75 pages! 75 pages! You want me to do an order on 75 pages, (and) unless you're smoking crack, you know these witnesses aren't going to be called when you have less than four hours," Koh said.

She went further too, warning of possible sanctions:

"If it turns out I went through 75 pages for people who are not going to be called, I am going to think of a proper tax for that," Koh warned.

As with many of these big company vs. big company patent disputes, it seems that so much of the focus is just wearing each other down with paperwork. At least in this case, the judge isn't going to allow it.

With the launch of our new Techdirt Insider Shop, one of the new features we've enabled on the site is something we're calling First Word/Last Word, which you may have noticed appearing on the blog. The feature allows Techdirt Insiders with credits to help highlight key comments as either "The First Word" (on top of all the other comments) or "The Last Word" (beneath all of the comments, even if other comments are added after). You can designate one of your own comments, or feel free to designate a truly awesome comment from someone else.

Because this is such a new feature, I wanted to discuss a little of the thinking behind it. Despite blogging for well over a decade, I'm still amazed by how much controversy there is over blog comments. Some people insist that they're completely useless. Others spend many hours of their day engaging in discussion and debate in the comments. There are various attempts to try to "improve the quality" of comments out there, including banning anonymous comments, heavily moderating comments or doing things like having editors highlight the best comments. Others have integrated third-party platforms to manage comments, such as Facebook or Disqus. Gawker keeps pushing the bleeding edge with a series of commenting experiments that try to increase the importance of comments while decreasing the number of comments that actually get viewed.

Over the years, we've taken a very open approach to comments. We don't require a login to comment (though there are benefits to having one). We don't require people to identify themselves at all. And despite the default assumption some have that anonymous comments are bad, we quite regularly find that comments from anonymous users are some of our most insightful and funniest comments. To that end, we've always focused on trying to do more to highlight and encourage good behavior -- such as highlighting the comments voted most insightful and funniest, both with badges on the comments and in our weekly summaries.

With the First Word/Last Word feature, we're trying to take all of that a step further. We've seen how a single trollish commenter can sometimes (not always) derail an interesting conversation by getting in early and saying something completely brain dead, then watching (probably with laughter) as the thread disintegrates. Our expanded Crystal Ball may take care of that in some cases by giving insiders more early access to kick off the comments. But, not everyone's going to be able to rush in and be first. With "First Word/Last Word," Insiders with credits can help highlight one or two of the absolutely key comments on a story and put them in places of prominence to help define the overall conversation.

This is very much an experiment (and like all experiments could flop completely). But what fun is it if you never take chances? We've trusted our community for many, many years, and here's another attempt to trust those who become Insiders to help curate the absolute best comments for everyone to see. We hope you'll take part and help us develop an even more interesting and compelling comments section.

You can get your own First Word/Last Word credits at the Techdirt Insider Shop. Most purchases include at least one credit, and subscriptions like the Watercooler Package and the Behind The Curtain Package include a cache of credits that replenishes on a monthly basis.

A few years ago, in the pre-Kickstarter (but post-artists-crowdfunding) world, we decided that there was no reason why some of the basic experiments for funding that musicians were doing shouldn't apply to blogs as well. So we launched our own "tiered" "CwF+RtB" (Connect with Fans + Reasons to Buy) store entirely as an experiment. By the end of the year, we made over $50,000 with it, which exceeded any modest expectations we might have had. Since then, it's always been on the list of things to do to update the store in a big way, and a few months ago, we finally decided to focus in on it. While it took longer than we expected, we're proud to launch the new version:

The Techdirt Insider Shop

It has many of the same offerings that the original had, but a bunch of new and expanded offerings as well. It's designed more as a store than a "tiered" setup, so shop around a bit. We'll have a few more posts highlighting some key features and merchandise, but for those of you already familiar with the Techdirt Crystal Ball -- which allows you to get early access to some stories and preview the headlines of others -- that's still around, but it's now been expanded, so you get to see some stories up to two hours early, rather than just one. And, if you sign up for a premium package, you can even get the brand new Crystal Ball Plus, which gives you pretty detailed access to all sorts of posts we're working on, including false-start stories that never make it onto the site, and some works that are very much in progress. If you're already a Techdirt Crystal Ball subscriber, your account has been upgraded to the new version, meaning you get to see more stories earlier, and you get some other features.

We also have some brand new features on the site for Insiders, including the new First Word/Last Word offering, which I'll have another post discussing in more detail a little later today. There's also the brand new Insider Chat which all of you should be able to see to your right. Certain Insider membership packages allow you to join in the chat. Without one of those... you can still view the chat, but you can't participate. Also, for those who sign up for longer term packages, we have a number of offerings, including special Insider Hangouts (using Google+'s Hangouts feature), which should be a lot of fun. Check out the store for a detailed explanation of all the new blog features that are available.

You want more gear? We've got more gear, including new t-shirts, hoodies, mugs, bottles and other assorted paraphernalia. We've got a brand new Seized t-shirt in honor of various domain seizures (more on that later!) and an updated DMCA takedown t-shirt. The original was our most popular seller, so don't miss out on the new, revamped version. We've also got a very special, limited edition Techdirt staff bundle -- of which only five are available to buy. These are special staff-only hoodies and an assortment of other goodies. If you don't want to splurge to that level (or if they all sell out before you get a chance) we've got some other hoodies to choose from.

Downloads? We've got downloads. You can "pay what you want" for the ebook version of my book Approaching Infinity (built off a collection of Techdirt posts) or our famed Sky is Rising report. Name your price and help support more such works in the future! Hell, if you don't want anything specific in return, you can also just donate some money.

There's plenty more as well, including getting lunch with me -- which we offered only as a one week special last time, but it was quite popular (and a lot of fun) -- as well as the indisputably Awesome Day with Techdirt (which a few folks did last time around, and it really was quite awesome). There are also various business services that tie back into how we normally make a living.

And, last and most certainly least, we still have options for those of you who hate Techdirt. Last time around, we offered to take a year off for merely $100-million, and surprisingly none of you took us up on it. We did have some requests for pro-rated offerings, so we'll now shut down for 24 hours for just $1 million (pocket change!). As for the big one? Well, we always hear the haters insist that price is equal to value, and no one appeared to value that $100-million offering enough... so the price is going up. You can shut us up for an entire year for the new, more luxurious price of $100,000,001. Hurry up. We may raise the prices again before you know it.

Either way, the store platform we've put together is a lot more robust, and we're hopeful that we can do a bunch of other things with it over the next few months and years, so shop away...

Please note that while we've been testing the new store & features extensively, when things go live, problems always pop up. If you spot any errors or bugs, please let us know and we'll get to them as quickly as possible...

Well this is unfortunate, but not too surprising. After the Supreme Court rejected medical diagnostic patents in the Mayo case, it vacated the ruling by the Federal Circuit appeals court (CAFC) on gene patents in the Myriad Genetics case, where CAFC had said genes are patentable, and asked it to redo the case in light of the Mayo decision. The ruling came out today, and CAFC more or less repeated what it said in the original ruling. The same panel of three judges effectively argued that Mayo had no real impact on what it said last year, and it was sticking by its decision. The Patently-O link above has a bit more detail, or you can read the full 106 pages (pdf and embedded below), which includes all three panelists entering their opinions (one dissenting). If you read last years, you'll find this one pretty similar, with just a few nods to why they were redoing the process.

All that really matters at this point is that isolated genes are still considered patentable. Even though people like James Watson, who was as part of the team that discovered DNA's structure, have argued that this kind of ruling is pure lunacy, the court is sticking by its position.

The case is likely far from over and there's a decent chance that it, too, will end up in front of the Supreme Court, where they'll have yet another chance to smack CAFC around for being overly infatuated with letting everything in the world be patentable. First up, though, will likely be an attempt to rehear the case "en banc" (with the full slate of CAFC judges, rather than just the three-judge panel). In other words, this is far from over, but if you're in the camp of folks who think the idea of patenting your genes is insanity, well, we're still living in an insane world.

While I've covered numerous aspects of Wikileaks, I've shied almost entirely away from the arrest of Julian Assange and the extradition fight to have him sent to Sweden, as well as the questions involving asylum in Ecuador. For the most part, I considered those things to be outside the scope of what's normally interesting around here. Whether or not you think the claims of what he did in Sweden were legitimate or trumped up, it was wholly separate from what he did with Wikileaks. That said, with the news today that Ecuador has, in fact, granted asylum to Assange, there are a few tidbits that have made the story extra interesting.

First up, is the absolutely astounding and shocking news -- as released to the public by the Ecuadorian embassy -- that the UK literally threatened to enter the embassy in order to get Assange and ship him to Sweden:

"You need to be aware that there is a legal base in the UK, the Diplomatic and Consular Premises Act 1987, that would allow us to take actions in order to arrest Mr Assange in the current premises of the embassy. We sincerely hope that we do not reach that point, but if you are not capable of resolving this matter of Mr Assange's presence in your premises, this is an open option for us."

If you don't follow diplomatic and embassy issues, this might not seem like a big deal, but it's huge. While it's mostly a myth that embassies are considered the sovereign territory of the countries they represent, under the Vienna Convention, the UK has agreed that such premises "shall be inviolable" and that its agents "may not enter them, except with the consent of the head of the mission." The UK's very direct threat here s that it would ignore that international agreement just to get Assange. That the UK would be willing to take such an incredibly drastic step to extradite Assange seems completely disconnected from the nature of the accusations against him. It would also put UK diplomats at risk around the globe, as other countries would note that it did not respect the Vienna Convention, so why should they?

Then there's a deeply disturbing, but quite compelling, argument by Mark Weisbrot at The Guardian, that even if these things seem disconnected, it's pretty clear that the driving force behind all of this is the plan for the US to prosecute Assange under the Espionage Act for his role in Wikileaks -- and this moment is particularly stunning. Historically, those who were being persecuted on human rights issues fled to the United States for asylum. Not the other way around. But here's a case where the exact opposite is true. And while many people have gotten past the point of believing that the US is a beacon of light on human rights issues, the fact that Assange had to take this action, combined with the UK's response, really acts as a distinct (and tremendously embarrassing) marker for a clear point in time in which the US turned from being a protector of human rights, to a persecutor against human rights.

The points raised by Weisbrot include the fact that Assange still hasn't actually been charged in Sweden. He notes that Swedish officials have been offered, multiple times, the opportunity to come to the UK to question him, and they've refused each time, including a recent offer from the Ecuadorian embassy to question him there:

We can infer that the Swedes have no legitimate reason for the extradition, since they were repeatedly offered the opportunity to question him in the UK, but rejected it, and have also refused to even put forth a reason for this refusal. A few weeks ago the Ecuadorian government offered to allow Assange to be questioned in its London embassy, where Assange has been residing since 19 June, but the Swedish government refused – again without offering a reason. This was an act of bad faith in the negotiating process that has taken place between governments to resolve the situation.

Former Stockholm chief district prosecutor Sven-Erik Alhem also made it clear that the Swedish government had no legitimate reason to seek Assange's extradition when he testified that the decision of the Swedish government to extradite Assange is "unreasonable and unprofessional, as well as unfair and disproportionate", because he could be easily questioned in the UK.

I'm not willing to go quite that far, in that I'll grant the possibility that there is a legitimate reason for Assange to be extradited -- but the failure of the Swedish government to take easy steps to prove those legitimate reasons or to obtain the necessary evidence is concerning.

And that's where Weisbrot connects the US to the whole thing. While we've talked about UK-US extradition in other contexts, apparently Assange could not be extradited to the US from the UK based on any of the possible charges against him. But that wouldn't be true in Sweden. Which gives rise to plenty of reasons why Sweden and the UK might be under heavy diplomatic pressure to get Assange to Sweden -- even to the point of threatening to enter the embassy to get him. Weisbrot points out that there's plenty of evidence that the US is sitting on an indictment for Assange:

But, most importantly, the government of Ecuador agreed with Assange that he had a reasonable fear of a second extradition to the United States, and persecution here for his activities as a journalist. The evidence for this was strong. Some examples: an ongoing investigation of Assange and WikiLeaks in the US; evidence that an indictment had already been prepared; statements by important public officials such as Democratic senator Diane Feinstein that he should be prosecuted for espionage, which carries a potential death penalty or life imprisonment.

This, by itself, is quite troubling, as we've discussed in the past. No matter what you think of Assange (and, personally, I don't think too highly of his methods or his grandstanding), it's a massive stretch to think that he should even be subject to an Espionage Act claim. However, as we've detailed multiple times, the Obama administration has turned the Espionage Act from a law against spying into a law against whistleblowers who embarrass them. The administration has used the Espionage Act twice as many times as all other Presidents combined to go after journalists and whistleblowers. Even if you disagree with Assange's methods, or the way that Wikileaks has operated, this should concern you. What Wikileaks did was not "espionage."

This will have massive ramifications for US foreign policy on human rights issues.

Why is this case so significant? It is probably the first time that a citizen fleeing political persecution by the US has been granted political asylum by a democratic government seeking to uphold international human rights conventions. This is a pretty big deal, because for more than 60 years the US has portrayed itself as a proponent of human rights internationally – especially during the cold war. And many people have sought and received asylum in the US.

[...] Today, the US claims the legal right to indefinitely detain its citizens; the president can order the assassination of a citizen without so much as even a hearing; the government can spy on its citizens without a court order; and its officials are immune from prosecution for war crimes. It doesn't help that the US has less than 5% of the world's population but almost a quarter of its prison inmates, many of them victims of a "war on drugs" that is rapidly losing legitimacy in the rest of the world. Assange's successful pursuit of asylum from the US is another blow to Washington's international reputation. At the same time, it shows how important it is to have democratic governments that are independent of the US and – unlike Sweden and the UK – will not collaborate in the persecution of a journalist for the sake of expediency. Hopefully other governments will let the UK know that threats to invade another country's embassy put them outside the bounds of law-abiding nations.

Yes, others will claim that the US was never the beacon of human rights it set itself out to be. There are numerous examples of where the US has failed to live up to its own stated standards. But this case and all of the details around it seem to take things to a new level, and the idea that someone needs to seek asylum in Ecuador out of fear of being put to death for trying to increase transparency by releasing government records? That's going to wake more people up to these questions.

And even if we believe that the US is actually mostly good on human rights issues, these moves all make it significantly harder to have any semblance of a moral high ground in dealing with other nations around the globe. We have failed, quite publicly, to live up to our own set of ideals, and that makes it nearly impossible for our own diplomats to carry out any sort of human rights mission around the globe. It's one thing to be ashamed of specific actions by my own government. That happens. But, what horrifies me about this situation is that we've now built up this perfectly handy tool to make the job of US diplomats focused on human rights issues almost impossible. Any effort to seek better human rights elsewhere will be met with pushback as foreign governments point to the US's own awful track record on these particular items. It's really quite a shame.

It has only been a bit over a month since Tor's DRM-free policy went into full effect. At the time of the announcement, Tor's president stated that the policy change was made at the request of both authors and readers who felt that DRM was a hinderance to their enjoyment of ebooks. As we know, DRM is not an effective measure against piracy. More often than not, DRM is actually harmful to paying customers as they hit restrictions that do not exist in the physical realm. Even with all these reasons against the use of DRM, there are still some publishers out there that feel that DRM is an effective means of stopping piracy. 

Claire Ryan writes in to tell us that Tor's anti-DRM policy is not making some other publishers happy. According to letters received by Cory Doctorow, Hachette UK is telling its stable of authors that they must use DRM, not just for the ebooks it publishes, but for all publishers distributing the same ebooks in other territories. 

I’ve just seen a letter sent to an author who has published books under Hachette’s imprints in some territories and with Tor Books and its sister companies in other territories (Tor is part of Macmillan). The letter, signed by Little, Brown U.K. CEO Ursula Mackenzie, explains to the author that Hachette has “acquired exclusive publication rights in our territories from you in good faith,” but warns that in other territories, Tor’s no-DRM policy “will make it difficult for the rights granted to us to be properly protected.” Hachette’s proposed solution: that the author insist Tor use DRM on these titles. “We look forward to hearing what action you propose taking.”

The letter also contains language that will apparently be included in future Hachette imprint contracts, language that would require authors to “ensure that any of his or her licensees of rights in territories not licensed under this agreement” will use DRM. 

Cory then goes on to describe just how useless such a policy is for Hachette. He points out that doing simple Google searches for certain Hachette published books turns up several DRM-free copies already in the wild. I will have to agree with Cory here when he says that this new demand by Hachette is not going to change that in any way. Those DRM-free ebooks will still be available, the tools to strip the DRM will still be available and paying customers will still be the only ones inconvenienced. 

Even with this severe and detailed rebuttal of Hachette's new policy, it has taken notice and is still standing by its decision to use DRM. In a statement made to The Bookseller, Ursula Mackenzie, CEO of Hachette subsidiary Little, Brown, stated that such policies are the norm in publishing.

Many contracts from all quarters already contain some form of wording to ensure that the licensee publisher does apply DRM and also sees to it that their sub-licensees and e-tailers apply it too.

Our new wording is clearer and we will, as always, negotiate variations of that wording with the many parties with which we trade, nearly all of whom agree with the basic principles of our DRM policy.

Of course being a part of the "norm" in the industry is not what really matters. What matters is that publishers and those that represent the authors actually listen to the authors. That is what Tor did when it made its decision to abandon DRM. What Hachette is doing here is making the claim that it knows what's best for authors and readers. Of course, you can't let a little thing like the opinion of authors and readers get in the way of your high horse.

We are fully aware that DRM does not inhibit determined pirates or even those who are sufficiently sophisticated to download DRM removal software. The central point is that we are in favour of DRM because it inhibits file-sharing between the mainstream readers who are so valuable to us and our authors.

This statement by Mackenzie is even more mind boggling than the other. Here she pretty much states that DRM is not about stopping the hardcore pirates, but simply to stop people from doing things they would normally do with a physical book, such as lending it to friends and family. Of course even that much can be to the detriment of the reader and publisher, as Cory notes.

Readers aren’t stupid. When they discover that paying for books results in locked, crippled editions, and downloading for free (simply by typing the title and “free e-book” into Google or Pirate Bay) gets them the same book, minus the offensive restrictions, they start to put two and two together. After all, DRM is not a selling point. There’s no one who’s ever bought a book because it had DRM. No one has ever clicked onto Amazon saying, “I wonder if there’s any way I can buy a book that offers less than the books I’ve been buying all my life.” People buy DRM e-books because they have no choice, or because they don’t care about it, or because they don’t know it’s there. But DRM never leads to a sale.

For the reader, the DRM'ed ebook is nothing but a headache. If you are not having your book deleted from your reader and account without your permission, you are locked into a specific reader with no way to transfer your legally bought books to another reader. Why would any publisher want to harm their readers in such a way? For the publisher, that means that in today's fast changing world of technology, readers will be less likely to buy an ebook if they know they cannot transfer it to a new phone or other device. That means fewer sales for the publisher. 

It gets even worse for Hachette specifically. According to Cory, at least one agency is taking a stand against its pro-DRM policy. He also warns authors who may consider Hachette as a publisher.

I know of at least one large agency that has told Hachette that it will not market books to them so long as this policy is in force. And Hachette’s authors should pay attention because, in the end, it is they who will suffer from the effects of DRM. Readers probably won’t remember who published the book that nuked itself due to a DRM misfire or was lost due to a platform switch. But they’ll remember the writer whose book they paid for and to which they lost access.

As Hachette continues its push to force DRM on its authors and readers, it will lose business from both. How it expects to survive such a two pronged loss will be interesting to watch. DRM is losing favor in the music industry. It continues to lose ground in the video game industry. Publishing and movies seem to be the only real holdouts on the pro-DRM side of entertainment. With DRM losing favor with Tor and sparking this battle between publishers, we will most likely see more publishers joining the DRM-free side of the debate. 

So, we were just talking about Google's new prior art finder tool, which can help people find prior art associated with a patent with a single click. As we noted, it tries to find elements associated with the patent and then restrict the search results to items published prior to the priority date on the patent. Of course, Patrick, over at GameTimeIP (who tends to be a supporter of the concept of patent trolling) has noticed that the tool can quickly be switched from a "prior art finder" to a "possible infringement finder" for patent trolls (he doesn't use that term, but you know what he means). That's because the tool does not actually limit you to the end date in question -- and with a little quick cutting and pasting, you can turn that priority date from the end date into the start date.

Take, for example, Amazon's infamous "one click" patent, 5,960,411. Pop that into the prior art finder and you get a bunch of results with an end date of 9/12/1997: Cut and paste and you get: And... suddenly, you've got a list of things that were published after the patent's priority date, which may indicate places where infringement happened. So, it's possible that instead of a tool to disrupt patent trolls, it could be a tool to enable patent trolls to find more victims.

Patrick (jokingly?) suggests that Google's intention here is to actually help the trolls. As he notes:

Google’s motivation to create this new feature are not entirely clear, but they have provided what should be a useful advancement in patent analysis. By speeding up access to information that may lead to evidence of infringement, Google puts more power back into the hands of inventors and patent owners. Perhaps they hope to gain a little positive patent karma after taking ownership of a large patent portfolio from the former Motorola.

Of course as has been noted dozens if not hundreds of times, technology is "neutral" and can be used for both good and bad purposes (which is good and which is bad may depend on whether or not you view shaking down innovators for cash "good" or "bad"). That said, I actually think that the tool is probably not quite as useful for finding infringement as Patrick seems to think it will be. That's because most of the results are things that tend to be useful in showing prior art, but less so in showing what's being used in the actual market. That is, it shows things like scholarly articles and previous patents -- which is what patent examiners tend to like to see. While that also limits some of the usage as a true "prior art" finder, it does focus on the types of things that tend to be compelling for prior art... but not so useful for infringement.

The US's case against Kim Dotcom and Megaupload continues to run into significant problems. While the US Justice Department (with an assist from New Zealand law enforcement) has continued to insist that extraditing Kim Dotcom halfway around the world to the US was a mere formality, and that the evidence against him need not be shown, the courts in New Zealand have taken a rather different view. They refused to rubberstamp the acquisition as the US hoped. Then, the New Zealand High Court stepped in to review the extradition issue, making a final ruling that says that the FBI needs to reveal its evidence and that the extradition request does not comply with the law as currently written.

In other words, a complete and utter failure by the FBI in this effort.

The full ruling (pdf and embedded below) is quite an interesting read, if you've got the time. Basically, the court agrees with the assertion from the US that an extradition hearing isn't meant to try the full case... but, then points out that this doesn't mean you completely ignore the basic rights of the accused. It is still a criminal case, and as such they have certain basic rights that must be observed -- and which the US was trying to deny to Dotcom. The court considers a variety of case law, including some Canadian extradition cases, and even directly notes that some past cases involved "rubber stamp" approvals of extradition (literally using that term). However, more recent cases have pushed back against that and said that the home court need not try all of the evidence, but should at least look at the evidence to see if it is defective.

The court further notes the fundamental unfairness of the argument made by the US and New Zealand: "severely restrict[ing] the ability of [one party] to file relevant evidence would not easily be characterised as 'fair.'"

The bigger question, then, was whether or not the FBI needed to release its evidence to Dotcom, and again, the Court ruled against the US's position. The Court notes that the law enforcement folks rely on obsolete and outdated caselaw to make their argument, and notes that "I do not find this line of authority particularly persuasive" because they really cover different issues, and (of course) the arguments made appear to be stretched from the original intentions. The judge seems to recognize that the FBI and the Crown are making ridiculous arguments, noting that there is "nothing incompatible" with revealing the evidence in New Zealand and then using it in the US case should extradition be granted.

In my view disclosure should be provided by the requesting state. The Act provides the person sought with a right to challenge whether the threshold for extradition has been met before he will be extradited. Consistent with the requirements of... the Bill of Rights Act to a fair hearing, the person sought should be given access to sufficient information to enable him or her to fully participate in that hearing on an equally informed basis. Without access to materials relevant to the extradition hearing phase, the person sought will be significantly constrained in his or her ability to participate in the hearing and the requesting state will have a significant advantage in terms of access to information.

The order lists out what needs to be disclosed, and it's a pretty long list. Basically "all documents" relating to each of the key charges.

Separately, the judge noted that the "Record of Case" document, which the Crown (with the FBI) used to argue for extradition wasn't up to proper legal standards in that it did not provide the necessary info to support extradition.

She also found the "Record of Case", the document which made the argument for extradition, did not currently meet the legal requirements. She said the FBI was under an "obligation of candour" to provide any evidence which could impact on the court's judgment of whether the extradition threshold had been met - and no information had been provided to support FBI claims. The document "did not comply", she said.

Basically, this is the final ruling on this issue. The New Zealand government and the FBI can't appeal it any higher and now have to actually let Dotcom and his lawyers see the evidence against him. What a concept.

Many people who fall in love with a franchise or story will show that love through the creation of fan art, fan fiction and other derivative works. The question over the legality of those works is often a murky area of copyright law. A few weeks back, we highlighted a video that touched on the nature of those works when it comes to copyright and the potential to infringe. However, it did not go into any specifics on the legalities.

Lucky for us, Lauren Davis, over at io9, decided to clear the air a bit by explaining the legal landscape behind fan works, citing case law and the law itself. To help pull it all together she even got the help of Rebecca Tushnet. Lauren's breakdown is pretty thorough and is well worth a full read.

The first area discussed in this breakdown is that of character copyright.

To a certain extent, creators have a copyright on their characters. If I'm writing a story about Harry Potter, for example, J.K. Rowling's copyright definitely comes into play.

Not long ago, we discussed a case revolving the use of public domain stories in which the characters and settings are still in use in copyrighted stories. This case, brought by Edgar Rice Burroughs Inc., relied a lot on the fact that the characters from ERB's Tarzan and John Carter stories are still used in copyrighted works and are trademarked aspects of the estate's business. While that suit revolves primarily around trademark law, it still highlights some of the foggy landscape around the use of characters from others stories. Using the characters from a work currently covered by copyright law can be tricky, especially if it can be shown that your use doesn't fall under fair use.

On a practical level, Professor Tushnet notes that "the boundaries are really super fuzzy. So in general, when courts face an issue like that, they tend resolve them as matters of fair use. They just assume that there's copyrighted character and then analyze what is the fair use."

So what exactly is covered by fair use? Lauren takes a look at the basic four factor test that many judges will use when deciding a case brought against fan fiction.

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

We discuss these four factors quite a bit. Many things including blogging, video walk-throughs and tutorials, news and commentary and many other uses of copyrighted works rely on these four factors to prove their use is fair. Unfortunately, these four factors are not a protection from accusations of infringement, merely a defense when brought to court. This has led to the current climate of takedowns on sites like YouTube and others. So it becomes increasingly necessary for fans to be cautious in how they create and distribute their work.

This climate of cautiousness can often lead to over cautiousness as well. This chilling effect leads many creative people to not create or distribute their derivative works in the fear that they might become a target of a lawsuit. These fears can be compounded by the over zealous use of the DMCA, cease and desist letters and other takedown notices that companies use. As people have fan works taken down without an explanation of why, or because of overly broad copyright claims, the culture of fear spreads.

Hopefully, as more and more creators recognize the value of derivative works, we will see fewer and fewer DMCA notices and cease and desist letters. Until then, it is always important to understand your rights as well as the law if you do work with the creations of other people. Knowing your rights under copyright law and fair use, will help you respond to claims of copyright infringement. While it may not get your works back online, it will help those who rely on such takedowns to understand that we aren't just going to roll over for them.