It's been really fantastic to see what's happened in the last week, since the Declaration of Internet Freedom was announced, leading to widespread discussion online (and lots of individuals and organizations signing on to support it). There was a ton of press coverage, and plenty of valuable feedback and thoughts.

I did want to respond to one of the most common criticisms I've been seeing: some are complaining that the principles are "too vague" and an awful lot of people seem upset that their specific policy goal isn't there. For example, the Declaration makes no mention of copyright or patent reform, and this has some people upset. Others are upset in the other direction, claiming that a lack of mention of copyright means that this document is really just a nefarious "specter" seeking to do away with copyright entirely. Meanwhile, others have looked at some of the groups involved, and because those groups have espoused a different political ideology in the past, assumed that this document is really a "secret" plan to put in place a preferred system of government.

So I want to clarify what some of the thinking was here, and why these criticisms are misguided. Those of us who put out the document should certainly take the blame for not necessarily explaining all of this upfront, but there's only so much explaining you can do.

Principles, Not Policy

Pretty early on in the discussion over this document, it was decided that we needed to focus on higher level principles, and not policy. This is the part that I think is confusing people the most. They think that this document is a policy document or that it's supposed to directly lead us to a specific policy. It is not. The document is the starting point in a process that we hope will bring more people together. This is a discussion. And rather than start at the end, we sought to put together some broad principles, and see if we could get most people to agree to them. If we focus on the principles first, and have a common understanding, we can move towards a more practical discussion. Too often, the fights over policy have little to do with principle, but rather are focused on "who benefits the most" or "why is this good for me." Part of the goal of this document was to get people to stop, take a step back and say "let's look at the fundamental principles."

Some have complained that the principles are too broad -- or even that nobody could possibly disagree with them (amusingly, those messages seem to come in at the same time as ones that do vehemently disagree with them). Indeed, the principles are broad, but that's on purpose. Again, the idea was to set forth the basic principles that we can get the majority of the world to agree on, because that opens up the possibility of moving forward based on principle, rather than on pet-project ambition or direct personal gain. So, yes, they're broad, and yes many people will agree with them. That's the point. The goal is to frame the discussion in a useful manner, and you don't do that by demanding something that most people don't agree with.

Ideas, Not Ideology:

The people who put this document together represent a very, very broad coalition, with many different viewpoints, political persuasions, geographic worldviews, etc. This was by design. The idea was to transcend silly and wasteful partisan bickering, and focus on these core principles to which the ideas matter, not the ideology. One of the most disappointing responses to this was that some people (including some who I consider friends) have tried to shift this into an ideological dispute, suggesting incorrectly that these principles were really all about one political ideology dominating, just because a small fraction of the coalition has, in the past, been associated with that ideology.

Unfortunately, all this is doing is taking a non-ideological, non-partisan (or even post-partisan) effort to get beyond silly partisan bickering... and trying to drag it back down into such a useless muck. This is a shame.

We have a chance here to move forward, together, as a wider internet community, and discuss a variety of ideas based on their merits, not based on "your team" winning. This isn't about any particular team, which is why we built such a broad coalition. This was about what is best for this thing that we all rely on: the internet.

Can't We All Get Along?

I know that this won't satisfy everyone. And others will complain that the principles still are too broad and too vague and don't mention their pet policy issue. But this is a process, not an end product. No one involved in the coalition that put this document together thinks that we (individually, or as a group) can speak for the world. What we wanted was a starting point for a wider discussion -- one that wasn't based on ideology or partisan bickering. We wanted something that started a discussion about actual ideas and principles and the question of what is really best for the internet and all its citizens.

And, from there, a discussion should ensue, with more milestones down the road. Many of us are already talking about the next steps in this process -- and, no, it's not about policy recommendations or specific political parties or ideology. It's about getting more people thinking and engaging and discussing.

To me, personally, that seems like a laudable goal. And I hope others think so too.

Last week, in one of their daily roundups, the folks at AVClub made a passing comment about Louis C.K.'s cable television show Louie:

you still have to subscribe to a cable package that features FX in order to watch the season premiere of Louie tonight—but the way things are going, he’ll eventually find a way around that as well.

It's half a joke, and not intended as a serious near-future prediction, but it nevertheless raises an interesting question: have we reached the point where a show of that caliber could be made independently? Louie is a fairly inexpensive show—the season two budget was $300,000 per episode, with an additional $200,000 spent on a particularly ambitious outing, so that season cost a little over $4-million. C.K. has leveraged his network of friends (and quasi-enemies) in the comedy industry, plus lots of production shortcuts and personal licensing deals for music, to accomplish some impressive feats with that cash—and the show is widely praised by critics and fans (though there are dissenters). Moreover, unlike some shows that arguably benefit from the design-by-committee nature of some TV networks, Louie is already helmed entirely by C.K., who has almost complete creative control.

So... We know Louis C.K. pulled $1 million in just a few days by selling a single comedy special directly to fans. We know he's made $6 million in a week selling tickets to his tour. We know creators can raise millions on Kickstarter. We've seen established Hollywood talent combine crowdfunding with private investment to escape the studio system. There's little doubt that, with some combination of these models and other innovative ideas, someone like Louis C.K. could put together a show like Louie without any network support and distribute it entirely through the internet (and any TV networks that wanted to license it—on his terms).

I'm not suggesting Louis C.K. has any particular desire or reason to do this with Louie right now—it's my understanding that FX has been extremely supportive and treated him really well. But, realistically, how long will it take before someone does this? All the mechanisms are in place, or nearly so, and the media buzz around things like Kickstarter and C.K.'s direct-sale experiments has inspired a lot of entertainers to start considering alternative business models. It could even be C.K. himself who eventually leads the way again: while Louie is going great right now, he frequently mentions in both his comedy and interviews that he knows the show and his current status won't last forever—and I can't help but assume that part of the reason he's been running these recent sales experiments is that he's a very smart guy who sees what's happening in the industry and is trying to future-proof his career. If something were to happen and Louie was cancelled prematurely, I wouldn't be surprised to see C.K. and his fans finding a way to keep it going on their own. Though he hasn't actually said as much, a recent interview suggests the possibility can't be far from his mind:

The show has been a precious thing to me, and it’s been something I’m horribly grateful for. It’s just such a big deal to me that I’m getting to do this. I’m aware of how fleeting it is. I’m aware that, at best, it’ll go eight years, and that a year after those eight years are over, it’ll feel like a distant memory. I’m aware of that.

That’s one reason that I’m working really hard on it. I’m physically pretty banged up from this season from shit that I did. I fucking jumped into a boat that was 10 feet off a dock, and I really hurt my knee. I’ve taken such a beating. But I do it because I know I’m not going to get an opportunity to do this for very long. This is going to feel like it was only a few years as soon as it’s over. I’m trying to really slow down time while it’s going on. And it’s really important to me that I earn it, that I earn what I’ve got in front of me by doing the show as well as possible. So that’s how I feel about it. It’s a big fucking deal. The web thing was a huge euphoria. It was a crazy feeling. It was like physically altering. Looking at my phone and watching the sales come, like a thousand per fucking minute, was insane. I was in a bathroom at LAX, looking at the sales for the web thing on my phone, and I started laughing. I couldn’t control it. And I realized I was laughing like Laurence Olivier when he’s getting his diamonds in the bank in Marathon Man. [Laughs.] He just starts giggling, like, “I can’t believe what’s happening here.” And I had a similar moment like that these last two days, because I put all these tickets on sale [for the upcoming tour] on the Internet in the same way, and it’s crazy. It’s gangbusters. I mean, half the tour is sold out, and we’ve added shows in like eight cities.

Critics of new entertainment business models like to suggest that quality content can't be produced without the financial backing that can only come from studios, networks, record labels and other big businesses, and they tend to dismiss every counter-example as somehow inferior art—but that's an increasingly untenable position. Not only is quality content already being produced in new ways, but the stage is set for even bigger and more expensive projects. And considering how new some of these models are and how rapidly they've grown, if we're already at the point where a show like Louie could probably be made outside the traditional ecosystem, is it really so inconceivable that one day in the near future even things like Game of Thrones and the red-herring of the $200 million movie could break free as well? A Kickstarter for a movie that hits the hundreds of millions sounds impossible now—but it wasn't that long ago that $10-million for a watch, $3 million for a video game or $1 million for an album were considered just as unrealistic. And that's just Kickstarter, not direct sales of the finished product or any of the other moneymaking opportunities that a piece of entertainment creates. When you think about it that way, it seems like it's only a matter of time.

One of the most important moments in the rise of a radical idea is when the fightback begins, because it signals an acceptance by the establishment that the challenger is a real threat. That moment has certainly arrived for open access, most obviously through moves like the Research Works Act, which would have cut off open access to research funded by the US government. That attack soon stalled, but the sniping at open access and its underlying model of free distribution has continued.

Here, for example, is an interesting post by Kent Anderson, who is CEO/Publisher of the Journal of Bone & Joint Surgery, with the title "Not Free, Not Easy, Not Trivial -- The Warehousing and Delivery of Digital Goods." The starting point is as follows:

There is a persistent conceit stemming from the IT arrogance we continue to see around us, but it's one that most IT professionals are finding real problems with -- the notion that storing and distributing digital goods is a trivial, simple matter, adds nothing to their cost, and can be effectively done by amateurs.

As a result, he thinks, there is "a consistent theme among dew-eyed idealists about publishing -- that digital goods are infinitely reproducible at no marginal cost, and therefore can be priced at the rock-bottom price of 'free'."

Well, they're certainly "infinitely reproducible", but nobody seriously claims that can be done at zero marginal cost. It is, however, extremely small. Indeed, in another post, Anderson himself provides a rough estimate for one part of the cost -- the online delivery of a 1Mbyte file: $0.001. It's true that delivering millions of copies would represent a more significant sum, but that ignores things like BitTorrent, which effectively shares the cost of distributing digital goods among many downloaders. Using such P2P delivery systems, the cost to the publisher really is vanishingly small.

But Anderson thinks there are other issues:

Even beyond just their power requirements, digital goods have particular traits that make them difficult to store effectively, challenging to distribute well, and much more effective when handled by paid professionals.

Why might that be?

First, digital goods are not intangible. They occupy physical space, be that on a hard drive, on flash memory, or during transmission. A full Kindle weighs an attogram more when fully loaded with digital goods, and there are hundreds of thousands of Kindles in the field.

According to the source referenced, "the difference between an empty e-reader and a full one is just one attogram" -- a million-trillionth of a gram. Even with "hundreds of thousands of Kindles in the field," that extra fraction of a gram spread around the world is hardly going to be a major problem. But leaving aside the issue of weight, it's certainly true that this data takes up space on storage media:

The proliferation of digital goods -- photos, music, Web pages, blog posts, social media shares, tweets, ratings, movies and videos, and so much more -- puts incredible and growing pressure on metadata management techniques and layers. This means building more and larger warehouses, which adds to both ongoing costs for current users and migration costs as older warehouses are outstripped by new demands. Megabytes become gigabytes become terrabytes become zettabytes and beyond. Where will they all fit?

One answer is "in your pocket:" according to Amazon, a 1 terabyte portable hard disc currently costs around $100. Yes, a zettabyte might be a little more pricey, but judging by this recent large-scale, real-life project, we're still in the sub-petabyte era, so storing all this data isn't really going to require a warehouse -- a few rack systems should suffice.

But independently of where you are going to put it, another question is: Where is all that important metadata going to come from? As Anderson rightly says:

Creating, updating, and tracking the metadata is a chore for owners of digital goods. Poor metadata -- like a photo name off your digital camera of DX0023 -- can make the photo hard to find or use. Better metadata -- usually applied by humans, like "Rose in bloom, August 2006" for that elusive photo -- makes more sense.

That's mostly true, most of the time. But in another paragraph, quoting from a description of the Library of Congress's effort to archive all Twitter messages since 2006, Anderson also shows us why metadata is not always an issue:

Each tweet is a JSON file, containing an immense amount of metadata in addition to the contents of the tweet itself: date and time, number of followers, account creation date, geodata, and so on.

That is, the data comes with "an immense amount of metadata" automatically, because of the way Twitter (wisely) designed its system. And even for datasets that require metadata to be applied by hand, crowdsourcing is proving an efficient and low-cost way of providing it.

Other issues raised by Anderson are that digital goods need to be backed up, and secure, but that's hardly rocket science: open source solutions that cost nothing to acquire (but not to run, obviously) have been around for years. His main concern, however, seems to be about the physical infrastructure required:

Digital warehouses are more expensive to build. Site planning is a major undertaking. A physical warehouse is something a small business owner can buy and construct with relative ease. They aren’t expensive (a concrete pad, a sheet metal structure, some crude HVAC, and a security system is usually all it takes). A digital warehouse is expensive to construct -- servers, site planning, redundant power requirements, high-grade HVAC, earthquake-proofing, and so forth. This means that digital goods have to work off a much higher fixed warehouse cost.

It seems unlikely that it is cheaper to build a typical physical warehouse than to install a typical LAMP stack on rented commodity servers in a few different geographical locations (or in the cloud) to provide resiliency and backups. This exposes the central problem with Anderson's argument about the amount of data that must be handled, and the necessity for huge and expensive infrastructure to handle it: he seems to be lumping together very different kinds of digital data.

In the realm of digital goods, we’re reaching a point at which we’re facing trade-offs. Already, some data sets are propagating at a rate that exceeds Moore’s Law, which may still accurately predict our ability to expand capacity. And these are purposeful data sets. As data becomes an effect of just living -- traffic monitoring software, GPS outputs, tweets, reviews, star ratings, emails, blog posts, song recommendations, text messages -- we as a collective will easily outstrip Moore’s Law with our data. If there’s no place to put it, and nobody to manage it, does it exist?

Yes, genomic data is spewing out of DNA sequencers at an incredible rate; yes, the Large Hadron Collider produces almost unimaginable quantities of data. But these are exceptions: nobody is talking about letting the general public access this stuff in the same way that they can download media files, say. As I've pointed out in a previous post, we are fast approaching the point where we could store every Spotify track on a single hard disc, and the same will soon be true for every film, book -- and academic article.

For the latter, despite Anderson's title, it really is the case that storing and sharing them is nearly free, pretty easy and mostly trivial, which is why open access makes sense and is constantly gaining ground. The sooner traditional publishers stop fearing and fighting this trend, the sooner they can embrace and enjoy the possibilities this new abundance opens up for them.

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Quantifying how our taste buds react to different ingredients isn't an easy task. It's hard enough to get 4 out of 5 dentists to agree on a toothpaste, so it's understandably difficult to get untrained taste testers to agree on what kind of flavors they prefer. The assumption that there is a single "best-tasting" formula for a particular food is unrealistic in many cases, anyway, as Malcolm Gladwell's popular TED talk on spaghetti sauces discusses. Still, food science has to take some kind of measurements, and here are just a few examples.

• If you want to hone your tasting skills, you have to practice, practice, practice. And maybe buy a bushel of different apples and try to describe each variety in as much detail as possible.... [url]
• A fascinating study of Asian and Western food recipes shows that Western dishes tend to pair ingredients with similar flavors, whereas Asian recipes don't. So the "sweet and sour" sauce is only on an Asian menu, but this study goes into far more depth than that. (And there's a free article on taste, sponsored by Ajinomoto.) [url]
• The hottest pepper on the planet goes to the Trinidad Moruga Scorpion with an average Scoville Heat Unit value of 1.2 million. Some individual peppers from this plant have hit 2 million Scoville heat units, and this research will allow hot sauce companies to scientifically claim to use the hottest known peppers. [url]

If you have some more free time, check out this unrelated (but not entirely random!) Techdirt post.

The latest in the ridiculous saga of the patent dispute between Apple and Samsung, which has resulted in Samsung phones and tablets being banned from sale in the US, is that Samsung, with the help of Google, has been pushing out an over-the-air software update to make its phones worse. Yes, the OTA update is designed to take away a feature, in an effort to convince the judge that the phones no longer violate Apple's patents. The feature in question? The ability to do a single search that covers both the local device and the internet. Because, you know, if Apple had never figured that out, I'm sure no one would have ever thought to search two databases with a single query. Either way, the end result is that the public loses a useful feature, because Apple doesn't want to compete, and a federal judge seems to think that's okay.

We've pointed out over and over and over again that enforcement techniques like issuing bans on certain websites don't really work. And yet, the industry keeps insisting that's the path it has to take. When I met Tim Kuik from BREIN (the Dutch anti-piracy group) back in April, he insisted that my characterization of his organization trying to stuff the genie back into the bottle was inaccurate. And yet, BREIN has been on an aggressive run to try to force ISPs to block access to The Pirate Bay. After a series of court rulings, the ISPs had no choice but to comply. Now, one of them, XS4All has published a report noting that BitTorrent traffic on its network appeared to increase following the blockade of The Pirate Bay, rather than the other way around. According to the summary at TorrentFreak, the ISP thinks that perhaps all of the attention paid to this issue, because of the trial, has helped drive more interest in unauthorized file sharing:

“I think that the increase is a result of all the media attention for the lawsuit and the blockade. Perhaps people who until then had never downloaded thought ‘I hear so much about downloading music and movies, let me try it!’.”

Back in March, Yahoo made some news by suing Facebook for patent infringement. This was the first major initiative by new CEO Scott Thompson, who apparently was not only oblivious about why you shouldn't lie in your resume, but also completely clueless about how Silicon Valley views patent infringement claims as a sign of absolute weakness. It's a sign of a company that has ceased to innovate. The reaction was pretty loud... but was quickly drowned out by the furor over Thompson's resume, causing him to lose his job. Ross Levinsohn was put in his place, and it appears that his first major act of business was to settle the lawsuit without any money changing hands.

There's a cross-licensing deal as well as some vague claims of a "partnership." However, the details suggest the "partnership" is just a general agreement to try to work together. The licensing agreement involves about half of Yahoo's patents... but also a promise not to sue over the other half.

There were a bunch of patent lawyers -- and some clueless Wall St. types -- who cheered on the patent infringement lawsuit, because they view things in the ultimate short term: if you're not getting paid for your patents, then you're "leaving money on the table." Folks in Silicon Valley mostly know better. You don't build a successful long term strategy by suing other companies that it's going to make sense to work with in the future. You especially don't go patent crazy if you want to retain top engineering talent. This may be difficult for patent lawyers and Wall St. investors to understand, but playing for the long haul means recognizing that there's more than one move on the chess board, and attacking on every single play isn't a good strategy. The real question, though, is if the stink that was attached to Yahoo from this move lingers, or if the company is able to shake it off and just pin the blame on Thompson's brief and horrific tenure.

One of the bizarre issues that came out after Wikileaks began releasing its treasure trove of US State Department cables, was this suggestion from the US government that Wikileaks was clearly an anti-US organization. However, as has been pointed out time and time again, it's not: it's an anti-secrecy organization. You can agree or disagree with that position, but the various attempts to brand Wikileaks and Julian Assange as particularly anti-American (and to even look to use Espionage Act claims against them) always seemed misguided. With the latest release of millions of Syrian government emails, it makes you wonder if those same people who were complaining about the organization being anti-American are now also complaining about it being "anti-Syrian."

Randomly, this can't be particularly surprising when, as we noted a few months ago, some hackers had worked out that a large number of high level government officials in Syria used 12345 as their email password.

Verizon is continuing to fight back against the FCC's (relatively weak) net neutrality rules with a few different arguments. It has one key argument that I think is a relatively strong one: which is that the FCC probably does not have a mandate to regulate in this way. That's something that Congress could conceivably change, but it certainly does look like the FCC tried to overstep its bounds in putting out the rules that it did. That said, Verizon goes even further to make some bizarre constitutional claims, including that net neutrality rules violates its free speech (First Amendment) rights, as well as its Fifth Amendment rights by "taking" its property. Neither Constitutional argument should hold up.

The First Amendment argument is based on the idea that this somehow blocks Verizon's ability to communicate its ideas:

The First Amendment protects not only traditional speakers, but other participants in the “communication of ideas.”... For example, it protects those transmitting the speech of others, and those who “exercis[e] editorial discretion” in selecting which speech to transmit and how to transmit it.... Broadband providers engage in and transmit speech, and the rules—which limit broadband providers’ own speech and compel carriage of others’ speech—cannot survive scrutiny.

Broadband providers transmit their own speech both by developing their own content and by partnering with other content providers and adopting that speech as their own. For example, they develop video services, which draw information from, and are then made available over, the Internet. Many also select or create content for their own over-the-top video services or offer applications that provide access to particular content. They also transmit the speech of others: each day millions of individuals use the Internet to promote their own opinions and ideas and to explore those of others, and broadband providers convey those communications.

In performing these functions, broadband providers possess “editorial discretion.” Just as a newspaper is entitled to decide which content to publish and where, broadband providers may feature some content over others. Although broadband providers have generally exercised their discretion to allow all content in an undifferentiated manner... they nonetheless possess discretion that these rules preclude them from exercising. For example, they could distinguish their own content from that of other speakers or offer that capability to others. In fact, some types of speech, such as live streaming high-definition video, could benefit from (or may only be available with) differential treatment, such as prioritization. Broadband providers could also give differential pricing or priority access to their over-the-top video services or other applications they provide, or otherwise feature that content.... Indeed, the FCC’s concern that broadband providers will differentiate among various content presumes that they will exercise editorial discretion.

The Order’s broad “prophylactic rules” infringe broadband providers’ protected speech rights. They strip providers of control over which speech they transmit and how they transmit it, and they compel the carriage of others’ speech. They also limit the means by which providers can secure additional revenue, which impairs their ability to deploy new networks and capabilities (or to expand the size of existing ones), thereby limiting their ability to speak and deliver speech. And they make clear that even “specialized services,” such as video services, will be subject to the Order’s restrictions if the FCC decides that such services are “retarding the growth of ... broadband Internet access service,” or if broadband providers merely “advertis[e]” these services to consumers as “Internet” services, ... thus constraining their marketing speech as well.

This is, to put it mildly, a silly argument. Telling Verizon that it can't hinder certain services from working online is not a free speech issue. Verizon is both overclaiming its own abilities as an internet service provider and twisting the First Amendment in a bizarre way. As Stacey Higginbotham noted, this argument "ignores the fact that under net neutrality mandated non-discrimination Verizon’s packets and speech are just as likely to reach the end user as Netflix’s or Google’s." But it's even worse than that. Verizon is effectively arguing that if it chooses not to allow a certain service to exist online that is a form of expression. Think of it this way: say Verizon decided to block Skype, because Skype is eating into its local telephone business. According to Verizon, that decision is a form of expression and the government can't block that, since that "expression" is protected. The "newspaper" analogy that Verizon offers is completely specious, because the internet isn't a newspaper where there's a single publisher who chooses what goes in. The whole argument is ludicrous.

The second argument -- that this is somehow against the "takings clause" of the Fifth Amendment (blocking the government "taking" property without compensation) -- is equally bizarre. It involves Verizon claiming that the government would be "invading" its network and "taking" property without compensation:

The Order also violates the Fifth Amendment. It grants the equivalent of a permanent easement on private broadband networks for the use of others without just compensation—a per se taking.... “In essence,” edge providers “receive an unlimited, continuous right of access to broadband providers’ private property for free,” which “allows them to physically invade broadband networks with their electronic signals and permanently occupy portions of network capacity.” D. Lyons, Virtual Takings: The Coming Fifth Amendment Challenge to Net Neutrality Regulation.... The resulting occupation is physical, for increases in network traffic consume available capacity and ultimately require the acquisition or construction of additional capacity.

Even without a physical occupation, the rules constitute a regulatory taking because they “interfere[] with [broadband providers’] distinct investment-backed expectations.”.... Providers have invested billions in broadband infrastructure on the understanding that they can manage access to network facilities and use those facilities to offer the products that their customers want. These rules sharply curb providers’ ability to do so, thereby frustrating their substantial and reasonable investment-backed expectations.

Once again, this argument seems disconnected from reality. Considering that much more aggressive "must carry" rules have been deemed Constitutional, it's hard to see how this argument makes any sense at all. Also, just from a common sense perspective, it fails on a few fronts. First, there's nothing being "taken" here. There is no "easement," just a restriction on how Verizon could run the network. If Verizon's argument here prevailed, you could potentially argue that any regulation that restricted how a company acted was a form of a "taking." But that's silly.

Even more to the point: while Verizon likes to go on and on about how these are its private networks that it spent so much time and money installing, what it conveniently leaves out are all of the massive government subsidies and rights-of-way that were provided. In some cases, Verizon received massive public gifts in terms of subsidies to build this network. One could easily make the argument that those entitle the government to place a few requirements on the network, considering that the network likely wouldn't exist without those subsidies and rights-of-way.

That said, I still agree that the FCC's mandate likely does not allow the kind of regulations it put forth here. But that doesn't make the Constitutional arguments any less silly.

Okay, let's just start out this post by noting the fact that abortion is an extremely controversial issue where people have very, very strong feelings on both sides. This post -- indirectly -- does deal with the debate over abortion, but it is not the point of the post, nor does the debate over abortion have anything whatsoever to do with the topics of interest here. Thus I am making a request, up front, that the comments on this post focus on the copyright issues raised by this ruling.

The case involves a clinic that performs abortions, Northland Family Planning, which made a video about the procedure. Another group, which opposes abortions, the Center for Bio-Ethical Reform, took those videos and made its own versions, with a very different message. I'm not going to embed the videos, but you can find the Northland video here or here. You can see the CBR video here (this one is NSFW). Northland was unhappy about CBR using their video to create one with a very different message... and sued, claiming copyright infringement.

The district court ruling found that the CBR video was fair use, though it did so in a convoluted and twisted way -- basically arguing that the new video was a "parody" of the original. It basically did this to try to fit with the clear rulings around parody, but in doing so avoided clear statements of how transformative use in a non-parody setting, for commentary or criticism, can also be fair use. Rebecca Tushnet's writeup goes through, in great detail, how the court seemed to get pretty contorted in trying to make this about parody, even when it's not really. That's unfortunate, because it makes perfect sense that the CBR video is fair use -- and it's obvious that Northland sued not because of worries about the copyright, but rather because it disagreed with the message CBR was spreading. That's a misuse of copyright law, but one that is all too common.

The first line in Tushnet's post makes the point about this kind of copyright abuse:

Here’s a rule worth following: Don’t sue your critics for copyright infringement.

It's just too bad that the court couldn't make a simple ruling on the clear fact that the lawsuit was really an attempt to stifle a disagreeing viewpoint, rather than any of the basic rationales for copyright. Twisting this into a "parody" case makes for some awkward and slightly unbelievable claims in the ruling, when a statement on how commentary and criticism can be protected fair use would have been much more worthwhile.

We've written a few times about constitutional challenges to the legitimacy of the Copyright Royalty Board. As we noted from the beginning, it's pretty clear that, as a matter of fact, the CRB is unconstitutional in that it violates the Appointments Clause. That clause requires judicial appointments to be made only by the President, the courts or the heads of executive branch departments. However, the CRB is appointed by the Librarian of Congress, which you might notice is a part of the legislative branch, not the executive branch, and the Librarian of Congress is a position at a much lower level than a "department head" required under the Appointments Clause. If all that seems pretty technical, you're right -- which is also why we thought that the court cases pursuing this line or reasoning were a waste of time. At best, we said, the courts would agree that the CRB was unconstitutional, and then just have a department head "re-appoint" the same judges.

Back in February, when the appeal to one of these cases was being heard -- the one brought by Intercollegiate Broadcasting Services (IBS), who represents a bunch of college radio stations -- we noted that from the questions raised it seemed clear that the appeals court agreed that, on a technicality, the CRB was unconstitutional, but its main interest was in figuring out how to "minimize" the impact of admitting that a ton of royalty rates have been set and enforced based on an unconstitutional process. And, indeed, that analysis turned out to be entirely accurate.

The ruling has come out and the DC circuit appeals court has agreed that the CRB is unconstitutional... but immediately "fixes" the problem with one change and one statement. The "statement" is that even though no one really considered the Librarian of Congress a "department head" as described in the Appointments Clause, the court now says that the position is, in fact, a Department head. And the one change is that by saying that the Librarian of Congress can not just appoint the judges, but also fire them... suddenly everything is good again:

But we agree with Intercollegiate that the position of the CRJs, as currently constituted, violates the Appointments Clause... To remedy the violation, we follow the Supreme Court’s approach in Free Enterprise Fund v. Public Company Accounting Oversight Bd... by invalidating and severing the restrictions on the Librarian of Congress’s ability to remove the CRJs. With such removal power in the Librarian’s hands, we are confident that the Judges are “inferior” rather than “principal” officers, and that no constitutional problem remains.

Because of this magical sleight of hand, the appeals court decides that it need not even consider the question of whether the crazy rates that the CRB has set up in the past (when it admits they were unconstitutional) should be reviewed. In other words, this one turned out more or less as expected: even if it was obvious to nearly everyone that the CRB is unconstitutional, a little employment jujitsu suddenly makes it constitutional again. There are all sorts of reasons to be annoyed at the CRB and the royalty setting process -- but the arguments over constitutionality were a sideshow all along.

A poll conducted in the UK has found that only 9% of those surveyed agreed that student Richard O'Dwyer should be extradited to face criminal charges in the US for creating TVShack, a site that let people link to videos hosted elsewhere. So far, the government has been ignoring public cries not to allow the extradition, but this poll really seems to suggest that the public is not too keen on shipping O'Dwyer overseas.

Only 9% of the British public believe he should face trial in the US for his actions, according to the YouGov research. The largest group, 46%, said O'Dwyer should not be prosecuted at all, while 26% felt he should be tried in the UK.

At some point, something has to give. The UK Home Office can't keep pretending that this is a minor issue that it can brush under the rug to keep the American government (and Hollywood) happy.

Way to go WIPO. You may recall back in April we wrote about how the World Intellectual Property Organization (WIPO), a part of the UN, flat out ignored UN sanctions and gave computers to North Korea, claiming that they were to help North Korea allow for better searching of international patents. This is, of course, ridiculous, because North Korea clearly could not care any less about anyone's patents -- but does want computing power for its nuclear program. Given that, I guess it should come as little surprise that WIPO is now being accused of the exact same thing with Iran (found via Ars Technica). Yup, WIPO apparently supplied computers to Iran to "modernize" its patent office, because we all know how much Iran cares about respecting the patents of others.

Geneva-based WIPO has a mandate from members to help developing countries modernize their patent offices. Iran and North Korea, both subjects of international trade embargoes including Security Council resolutions, were both beneficiaries of “standard information-technology equipment” after meeting WIPO’s needs-assessment and validation procedures, according to Edward Kwakwa, legal counsel at the organization.

This would be the very same Edward Kwakwa, who in a private email that was revealed when the North Korea story broke, told a very different story:

I would suggest we go ahead ONLY if you think this arrangement is of crucial importance to WIPO. But given the sensitivities and the broad sweep of the sanctions language, I would prefer that WIPO simply desist from entering into any such arrangement, as it does not seem to be of any consequence or benefit to WIPO, and can bring more trouble than benefit ultimately.

We noted in the story about North Korea that WIPO officials admitted that they had done these kinds of operations before. I had, at the time, assumed they just meant with North Korea. I didn't realize they also meant with other countries seeking to be nuclear powers and under UN sanctions. It makes you wonder who else WIPO is helping to "modernize its patent office."

Following the rejection of ACTA and the surprising USTR recognition of copyright exceptions and limitations, Harold Feld has a really worthwhile postgame analysis that highlights why pretty much every other industry (and the US government) should be pissed off at the MPAA and the RIAA. Basically, he points out that there were aspects of reasonableness in those efforts: some of the parts focused on real counterfeiting. But because the MPAA and RIAA decided to use an incredibly heavy-handed approach to get the US government to include totally unrelated copyright issues among them, both proposals completely flopped. If those efforts had just focused on the issue of real harm -- true counterfeit products that are confusing people and even putting lives at risk -- no one would be opposed. But due to this ongoing desire to conflate copyright infringement with counterfeit drugs, they overplayed their hand -- and all of that effort is now wasted.

Keep in mind that the majority of people working for USTR don’t like to waste effort any more than the rest of us, and the realization that a significant portion of the rest of the world may reject whatever final deal negotiators agree to if it goes too far on copyright is no doubt causing many to rethink their positions. In addition, USTR has many other industries it services besides Hollywood. They need trade agreements — and USTR is required to negotiate these. The Hollywood crazy train on intellectual property enforcement now very visibly threatens the ability to get future trade agreements ratified by Congress or by foreign governments. The manufacturing sector, the retail sector, and others that have until now tolerated Hollywood’s demands in the interest of maintaining a united industry front will not sacrifice their own international trade interests for the Entertainment industry — and will push USTR to negotiate agreements that actually have a chance at ratification.

This, obviously, seems like a good thing. As he notes, the USTR now has a lot of incentives to actually be more open and to listen to those who helped kill off SOPA and ACTA. If they actually want to have their proposals mean something, they might as well start talking to those who have the influence to do something meaningful. And that's less and less the RIAA and the MPAA.

Of course, this goes even further than that. While Feld talks up the increasing importance of activists in the conversation, I'd argue that it should also lead to most other industries pushing back on the RIAA/MPAA's crazy demands as well. Perhaps the US Chamber of Commerce will start to reconsider pushing the RIAA/MPAA point of view when it's clearly harmful to the interests of most other industries.

As we recently noted, there are compulsory licenses for doing cover song recordings, such that you don't need to ask for permission. It appears that the band Def Leppard is now taking advantage of that in an attempt to fight back against Universal Music (who they feel owe them royalties) by re-recording their entire back catalog (sent in by a bunch of you) and re-releasing them. They're referring to their own re-recordings as "forgeries."

With newly recorded "forgeries" of "Pour Some Sugar on Me" and "Rock of Ages" now available, the quintet has begun a series of re-recordings of its catalog material and "wrestled control of our career back" from the Universal Music Group, which frontman Joe Elliott says the band refuses to deal with "until we come up with some kind of arrangement" over compensation, especially for digital downloads.

"When you're at loggerheads with an ex-record label who...is not prepared to pay you a fair amount of money and we have the right to say, 'Well, you're not doing it,' that's the way it's going to be," Elliott tells Billboard.com. "Our contract is such that they can't do anything with our music without our permission, not a thing. So we just sent them a letter saying, 'No matter what you want, you are going to get "no" as an answer, so don't ask.' That's the way we've left it. We'll just replace our back catalog with brand new, exact same versions of what we did."

Of course, you'd have to imagine that someone else still holds the publishing rights, but if the new "forgeries" -- which apparently take quite some time to get exactly right -- sell well, the band could end up keeping a much larger share of the money. Either way, this seems like yet another story in a very, very long line of such stories, of bands reporting on the many ways in which the major labels have screwed them over. Makes you wonder if there are any acts who feel they weren't screwed over by their major label...

We've already covered esteemed Judge Richard Posner's vehement dismissal of Apple's patent infringement case against Motorola. While we, and many others, had noted Posner's caustic remarks concerning the abuse of the patent system, patent system defenders tried to play his arguments down as merely being concerned with the damages calculations (the technical point on which he dismissed the case). However, Posner recently seems to be taking an even stronger stance. First, even after he dismissed the case, he released an order spanking Apple, though even he notes in the order "The case having been dismissed, I am not at all sure that I have jurisdiction to issue this order! Anyway it really isn’t an order, but merely a comment on an email."

But, more importantly, he gave an interview with Reuters, where he was much more explicit about his concerns with the overall patent system and how it seems to hold back progress and innovation.

Posner said some industries, like pharmaceuticals, had a better claim to intellectual property protection because of the enormous investment it takes to create a successful drug.

Advances in software and other industries cost much less, he said, and the companies benefit tremendously from being first in the market with gadgets - a benefit they would still get if there were no software patents.

"It's not clear that we really need patents in most industries," he said.

Also, devices like smartphones have thousands of component features, and they all receive legal protection.

"You just have this proliferation of patents," Posner said. "It's a problem."

This isn't a huge surprise. If you've read Posner's book The Economic Structure of Intellectual Property Law written with William Landes, you'd know that he's long recognized that there are competing forces in the patent system, which could lead it to doing more harm than good. However, it's always appeared as if he came down (just slightly) on the side of thinking they more or less worked. It appears he's now pretty clearly shifted over to recognizing the widespread harm patents do.

The Reuters report also notes that he specifically let it be known to district courts that he was interested in hearing a patent case. Despite serving on the 7th Circuit appeals court, Posner never gets to hear patent cases, because of our ridiculous system where all patent appeals go to the federal circuit. That's too bad, because it would have been nice to have allowed him to make this ruling at the appellate level and get a real circuit split going to force the Supreme Court to be more aggressive in fixing the problems in the patent system. Either way, it's good to see him speaking out on this and admitting that many industries probably don't need patent protection (hell, if he really wants to explore the drug industry, he may discover that it doesn't need patents either, but that's a whole different post...).

We already noted that the New Zealand judicial system apparently isn't as willing as the US expected to rubberstamp approval of the extradition of Kim Dotcom. Part of that ruling was a requirement that the US turn over the evidence they're using against Dotcom, so that he can counter it in fighting against the extradition. However, it appears that the US is still fighting this, having the New Zealand prosecutor (who is fighting on their behalf) argue that Dotcom should only be allowed to see a single document out of the 22 million emails the FBI collected and that this really isn't a matter for the New Zealand courts to concern themselves with, as they should just let the Americans handle it.

Crown lawyer John Pike argued that there was no need for Dotcom to have access because he was not being tried in New Zealand.

The judge in the extradition case needed only to decide if there was a case for him to answer in the US, Mr Pike said, and that question was answered by the record of case.

That's kind of amazing when you think about it. He shouldn't be allowed to even see the evidence against him... even if it might prove that there is no "case for him to answer to in the US." That's what's so troubling about the US position on cases like this one and the O'Dwyer/TVshack case. They seem to assume that it shouldn't be of any concern if they drag someone thousands of miles across oceans to face trumped up charges in the US.

Here's an odd one. The School of Economics and Management in Essen, Germany is suing former student, Marcel Pohl, for graduating too quickly. You see, he finished all of the necessary exams for both a bachelor's and master's degree in 20 months -- representing three semesters. Normally, it takes students 11 semesters, and the school feels ripped off. The complaint is that, even though they charge per semester, what they're really charging for is the degree, and Pohl didn't pay enough for his. So they want another €3,000.

Of course, in the details, we learn that part of the reason he was able to take so many exams is that he teamed up with two friends and they all traded notes on classes they didn't actually attend. You can question whether or not that meets academic ethics requirements, but the fact is that Pohl still did pass the required exams, and met all of the qualifications to graduate -- and the University apparently let him graduate before it realized what happened. It's hard to see what the legal issue is here. Perhaps instead of suing, they should look at their own setup and question why they force students to spend 11 semesters on material when at least some can get through it all in about a quarter of the time...

In the meantime, was there really no one at the school who didn't think that the cost of legal fees and negative publicity combined is very likely to exceed the money they're seeking?