This keeps happening. Governments forget that the purpose of intellectual property law is to provide the best net value to the public, instead of thinking that it's just to help "industry," on the incorrect assumption that this must benefit the public in the long run. Han alerts us to the news that Singapore has now set up an "IP Steering Committee" to try to turn the city/state into an "intellectual property hub." The steering committee appears to have lots of industry representatives, and government officials who are in charge of representing the industry's interests -- but not a single person representing the interests of the public. That seems like a pretty major oversight, and more or less guarantees that what comes out of this will be abused by companies, rather than a useful and effective system for the benefit of the public.

Yesterday, we wrote about El-P (emcee/producer and co-founder of Definitive Jux records) and his positive reaction to the early leak of his upcoming album, Cancer4Cure. El-P showed up in the comments that evening, and after an email exchange this morning he posted this excellent longer reply and invited us to turn it into a guest post. Big thanks to El for getting involved and giving us a clearer picture of his stance on these issues.

---

First off, thanks to Leigh for emailing me today and thanks to everyone here for your ideas and comments. It's clear he (and all of you) care about this subject. The truth is I really don't fully know how I feel about it all and I'm not sure that I'm smart enough to fully tackle the subject. It's tricky.

All I know is that I believe in operating within the realties that exist now and treating fans with respect within the context of those realties. I don't agree with the draconian and aggressive manner in which the RIAA and others have reacted to those realities and I wont be caught trying to put band aids on cracks in the dam. I'd rather let that bitch flood and build a boat. That said, I cringe a bit when people disregard how tough it is for working musicians to deal with the new paradigm. Cut us some slack. It's all relatively new and we are trying our best to navigate choppy waters.

I want to trust that if people like my music they will support me. My heart tells me that's the case. I also know for a fact that many of the people that say they will support or even genuinely intend to may not, being that they have the finished product (or at least the most important piece of it) in their hands already. It's just common sense.

So how do I feel? What's the right way? Fuck if I know. But I'll adapt and I'll do it with respect and class and not kicking and screaming. There's a hell of a lot I could say about both sides of this particular subject, but honestly does it matter? You all have formed your opinions on it already and in the end people like me are still out here trying to make a living no matter what those opinions are... right, wrong or in-between.

I will say (and this is a portion of what I wrote to Leigh today):

In these debates (no matter what venue) the artist almost always seems to be treated/viewed as a child. Either we don't understand what's good for us, can't control what's happening to us, can't comprehend what's bad for us or we are not wise enough to be grateful for what we are handed. It's a debate that rages on almost exclusively without the input of the artist themselves.

And maybe thats how it needs to be. At the end of the day we are trying to make a living doing what we love and it's on us to determine how we handle it. I'm not sure any artist owes any explanation to anyone about the nuances of that, and I'm not sure anyone else can really understand what it's like as an artist to negotiate all this unless they deal with it in the same way. Everything takes on a different tone when paying your rent enters in to the debate. But don't make the mistake of treating us condescendingly or with pity. I am not "begging" for anything by asking people to support by pre-ordering if they enjoy the record. I'm trying to solidify and encourage the relationship I have with the people who I make the music for in the context of today's reality. Simple as that.

I for one am determined to make the realities of today's music business work for me as best I can. I do not see the point in blaming the fans for a technological (and now cultural) reality that we all are involved in. They are my fans. They are my supporters. I think if I do my job and make something passionate and good then they'll be motivated to engage with me. Between me and them I'm sure we can figure out how to give each other what we need so we can continue to have a relationship. I'm not too worried about it.

For now I think we are finally settling in to a decent place with it all. Of course if my record drops and I don't sell shit I might end up with a bit of a different take on it all. I reserve that right, but I doubt it.

Anyway thanks for reading and thanks for taking the time to talk about all this. I'm going to drink some coffee and eat a bagel now. Also, my cat won't stop meowing.

— best, el

Man-made fusion reactors always seem to be 30-50 years away, even though the sun fuses atoms all the time, mocking us with its immense generation of free fusion energy. Sure, there have been a couple of wunderkinds who've built fusion reactors in their spare time, but the trick is generating a surplus of energy -- not just fusing atoms for fun. Here are a few interesting links on inertial confinement fusion.

• The National Ignition Facility (NIF) is approaching its break-even point for generating as much energy as it consumes. This $3.5 billion facility at the Lawrence Livermore National Laboratory shoots lasers at an ignition target of hydrogen isotopes to get the nuclei to fuse and release energy, and it might look more promising than the ITER's tokamak facilities. However, the NIF is more of a proof of concept, not a practical design for generating commercial amounts of energy. [url]
• Two UK-based organizations are interested in commercializing the NIF's fusion reactor and creating a self-sustaining fusion reaction. Such a reactor would have to go through more than 10 fuel pellets each second, but the NIF facility has only burned through about 300 since it started operating in 2009. [url]
• A watchdog group, Tri-Valley CAREs, argues that the NIF should be regulated before it releases more radioactive particles like tritium into the environment. The Department of Energy says that radioactive releases have been below the EPA's safety limits, but Tri-Valley CAREs is concerned about the effects of radioactive materials accumulating around Livermore, CA. [url]
• To discover more stuff on alternative energy, check out what's currently floating around the StumbleUpon universe. [url]  

As always, StumbleUpon can also recommend some good Techdirt articles, too.

We've written about a bunch of court cases around the globe, in which Google was sued (and often found liable) for the results of its autocomplete feature, which suggests popular searches based on what users have typed. For reasons that still are unfathomable to me, courts seem to think that Google should somehow be considered responsible for displaying what its users are searching for. These kinds of lawsuits appear to be particularly popular in France, and the latest one seems especially silly. Apparently Google is being sued because autocomplete sometimes shows the name of famous people with the keyword "jew" after them. This includes such non-Jews as Rupert Murdoch and Jon Hamm.
The lawsuit is being fought by a group, SOS Racisme, which claims to "fight discrimination," but if that's the case, then one hopes that racism has all but been obliterated in France, since the group has moved on to fighting ridiculous cases like this one. All that Google autocomplete is showing is that a lot of people (potentially ignorant ones) have searched for these names, along with the keyword "jew" or "jewish" to determine if the individual is Jewish. The fact that users search for something and Google displays that isn't something Google should be liable for. Why blame Google for the actions of its users?

But, more to the point -- and I say this as someone who is Jewish -- what the hell is anti-semitic about doing such searches in the first place? I'm really at a complete loss to understand why this is so horrible. Yes, the reason behind the searches may be ignorance (and some of the results may point to pages that spread ignorance), but the group bringing the lawsuit seem to be suggesting that this is an absolutely horrible thing that people may be prompted to do searches on whether or not non-Jews are really Jews. The only way this story makes any sense is if all real racism and anti-semitism and other forms of ignorance and bigotry have all been eradicated in Europe. Assuming that's not actually the case, perhaps it's just one clueless group overreacting.

We've covered parts of the various lawsuits against Grooveshark by the recording industry. I have no idea how those lawsuits are going to turn out, but a bit of a sideshow in one is touching on issues that are extremely important around here: the right to protect anonymous commenters, and shield laws protecting journalistic sources. Last fall, in the latest effort by Universal Music against Grooveshark, the company quoted an anonymous comment from a blog post on the popular music industry blog, Digital Music News. The comment claimed to be from an employee at Grooveshark, and reads (in part):

I work for Grooveshark. Here is some information from the trenches:

We are assigned a predetermined ammount of weekly uploads to the system and get a small extra bonus if we manage to go above that (not easy).The assignments are assumed as direct orders from the top to the bottom, we don't just volunteer to "enhance" the Grooveshark database.

All search results are monitored and when something is tagged as "not available", it get's queued up to our lists for upload. You have to visualize the database in two general sections: "known" stuff and "undiscovered/indie/underground". The "known" stuff is taken care internally by uploads. Only for the "undiscovered" stuff are the users involved as explained in some posts above. Practically speaking, there is not much need for users to upload a major label album since we already take care of this on a daily basis.

To be honest, when I saw the original filing mentioning this comment, I was pretty surprised that Universal would use it in the lawsuit. After all, it's an anonymous comment on a blog. It's pure hearsay, without any actual evidence that the commenter actually works at Grooveshark. It's completely useless as evidence.

Of course, you might think that Universal Music would then issue a subpoena to discover who the commenter was. But... instead Grooveshark issued a subpoena (pdf and embedded below) seeking to identify the commenter. This is also strange. If UMG was able to identify the individual, then Grooveshark would find out that info. But if (as appears to be the case so far) UMG does nothing, the claims by this individual are useless in the lawsuit anyway.

Either way, Paul Resnikoff from Digital Music News worried about the subpoena, as DMN has a policy of not revealing its anonymous commenters (and often using them as sources). So, he decided to push back, noting a few key points. Public Citizen's Paul Levy recently agreed to represent Resnikoff in this matter and sent a letter to Grooveshark's parent company (embedded below) detailing why Grooveshark should stop barking up this particular tree. Beyond the First Amendment issues, the right of a journalist to protect sources, and the uselessness of the original comment in the first place, there's also the simple fact that DMN doesn't retain comment logs for very long, and has no useful information in response to the subpoena anyway.

That letter also highlights that Grooveshark is also interested in a much more recent comment on a blog post about Grooveshark's subpoena, in which a commenter (in a rather difficult to read manner) spins another conspiracy theory, suggesting that the original comment was a setup against Grooveshark by supporters of the lawsuit. To be honest, this comment seems about as credible as the original comment that kicked this off.

Whatever you might think of the Grooveshark lawsuit, this action by Grooveshark's lawyers seems like a mistake and overkill. Not only is it unlikely to turn up anything useful, going on a fishing expedition against anonymous commenters on a blog opens up a huge host of problems around First Amendment issues, which it appears Grooveshark either failed to consider, or doesn't much care about. That seems like a mistake.

A couple years ago, we wrote about a panel discussion with a couple of music documentary filmmakers, who discussed the ridiculousness of trying to clear the samples used in their films, even though the works almost certainly could only lead to increased music sales. The NY Times recently had a similar story, as a documentary movie about the group of studio musicians known as "The Wrecking Crew," who performed on a ton of the biggest musical hits ever, has been sitting around, finished but unreleased for over four years because of the impossibility of clearing the music in the film. Even though the music was all performed by The Wrecking Crew, whose members would love to see the film out there, the copyrights are held by a variety of entities, including the various major labels.

The article notes that the labels are so desperate for extra cash, that they're asking much more than they have in the past for licensing fees. But that's incredibly, stupidly, short-sighted. Getting a documentary like this out in the world could only serve to increase demand for a bunch of those songs, which would open up all sorts of opportunities to make some more money. But the labels can't seem to see past today in any of their activities.

Separately, as the article notes, the filmmaker could try to rely on fair use... except that the cost of actually defending a lawsuit (even if the lawsuit is bogus) could be quite prohibitive, especially since he's already spent a ton of his life's savings on the movie itself. And I thought copyright was supposed to encourage ways to get the music out there...

There's been lots of talk about what to do about online bullying -- even if the amount and impact of online bullying is often massively exaggerated. There have even been some attempts to outlaw online bullying or "cyberbullying" that seem to try to make it illegal to be a jerk online. These laws are of dubious legitimacy under the First Amendment.

However, it appears that one family has taken a different path to go after some online bullies. After discovering that some classmates in school set up a fake Facebook profile for a girl, they sued the kids who set up the page and their parents for libel. The student had apparently asked both the school and the police to do something about the fake page -- and in both cases they were (correctly) told that they couldn't do anything. The school couldn't get involved with off-campus speech (correct) and the police noted that no criminal laws appeared to have been broken (also correct). They also asked Facebook to take down the page, which didn't happen. That's the one that surprises me a bit. Considering Facebook's insistence on "real names" and such, you would think the company would respond relatively quickly to accusations of a fake page.

That said, is libel really the most reasonable response? It does appear that some of the statements made on the page were pretty obnoxious, and could potentially meet the bar for libel, but it's difficult to see how such a lawsuit helps anything. It did get Facebook to delete the page, so perhaps that accomplished the goal. But I can't imagine that filing lawsuits against other students helps make one more accepted in school. The fact is that kids can be obnoxious brats -- and it sounds like the kids who set up this fake Facebook page fit that description. But does that really need to be settled in court? Furthermore, suing the parents of the bullies because they paid for the internet access the kids used seems like a particularly ridiculous claim. Bullying sucks, but taking kids and their parents to court over a stupid fake Facebook profile seems like overkill in response.

It's been nearly two years since Google revealed that it had been collecting (but not using) some data from unencrypted WiFi networks as it drove around with Google's StreetView vehicles. While the data collection was associated with its efforts to use WiFi networks to help determine location info, it was stupid and looked bad. However, as we've explained repeatedly, the real issue there was simply people not protecting themselves by using encryption on WiFi. The simple fact here is that anyone on those networks could collect the same info easily. In recent weeks, the news came out that not only did the FCC clear Google of breaking the law with the activity, but so did the DOJ. Add that to the FTC investigation that found nothing wrong with the activity, and that's now three federal agencies that have said collecting such data didn't break any laws. The FCC did fine Google $25,000 for not being particularly cooperative -- which does reflect poorly on Google. But the simple fact of the matter is that what Google did in collecting this data isn't illegal. If you don't just kneejerk into "Google's evil" mode and want to understand why, Mike Elgan recently did a nice explainer.

That said, over the weekend, Google released the full FCC report redacting just names -- and even the name of the key engineer has since been revealed. The FCC had released a report that redacted a lot more info. The report reveals a lot more of the background here, and it's giving new ammo to critics, who are insisting that it shows a much more evil situation than had come out before. Specifically, it shows that Marius Milner -- working on Google's famed "20% time" -- came up with the code, and shared the details with some others, including one who debugged the code, and a supervisor. Milner, among other things, helped create NetStumbler, a tool that plenty of folks have used to monitor WiFi networks.

Some are trying to claim that this shows the effort was planned and not an "accident." Though, in actuality, the details still suggest nothing nefarious at all. It was still just this engineer coding it up, rather than some big plan. And yes, he shared the fact with a few others, but none of them seem to have paid much attention or done anything. In fact, while it was suggested to some that such data might be useful, that idea was dropped when people told the engineer that it wouldn't. There still doesn't appear to be a single shred of evidence that Google ever touched this data or did anything with it. Furthermore, the whole reason that three federal agencies all closed their investigation without charging Google with anything is because -- as many people pointed out from the beginning -- nothing illegal was done. Broadcasting your internet connection over an open WiFi network means that anyone can collect that data. That's not illegal. It may be silly for individuals to do that, but the responsibility is on them.

Also, pretty much every mainstream press report on this whole thing totally ignores that Google could not get access to any encrypted data -- meaning that most email, financial transactions, etc were always protected anyway. Instead, lots of reports talk about "emails and passwords," but that's only true if people used insecure sites in the first place -- and, again, they would be just as vulnerable to anyone who wanted to capture that content.

In the end, it's no surprise that Google haters will try to make more of this than is really there -- they have to grasp at whatever straws they can find. However, about the only thing this really seems to show is that Google had ridiculously poor process and controls concerning putting code into live projects. That allowed this code to get in there, without anyone really thinking through the consequences. Google has more or less admitted that these weak controls were a problem in the past and things are better these days. Of course, you can also understand why Google would have loose controls in the first place, seeking to encourage people to be creative (the reason for the 20% time concept in the first place). The problem, of course, is that if you have someone with nefarious intent -- or just tremendous naivete -- bad stuff can occur. In this case, it seems being naive was the key issue, rather than anything nefarious, and with three federal agencies all coming to the same conclusion that no laws were broken, it's pretty bizarre to see people still freaking out about this. It's fine not to trust Google. But that distrust shouldn't lead to simply making up crimes that don't exist.

Susan Crawford has an intriguing column over at Bloomberg where she notes that the ongoing effort by politicians to fearmonger around the idea of "cybersecurity" and "cyberwar," is a lot more problematic than just a sneaky way to do away with basic privacy protections. Instead, she argues, it's going to create massive damage to one of the key features of the internet that has made it so successful and so useful: its openness:

The dangers of this digital special-ops saber-rattling are breathtaking. Secretary of State Hillary Clinton has been valiantly advocating for Internet freedom, strategic multilateralism, engagement and “smart power” around the world. The White House has said its objective is to work with other nations to “encourage responsible behavior and oppose those who would seek to disrupt networks and systems.”

Purveyors of cyberfear are going in the opposite direction. They are not interested in engaging with other countries to come up with codes of online conduct or to translate the Geneva Conventions for cyberspace -- so as to avoid collateral damage and protect hospitals, electrical grids, and so on. They want to be able to change ones to zeros on servers around the globe, whatever that means for speech and commerce at home and worldwide.

Given the undeniable benefits that the open global Internet has brought to the U.S., building moats around our networks and subjecting them to constant, unaccountable audits and other restraints -- all in the service of an immense online warfighting machine staffed by military contractors -- would be burning the village in order to save it

Plenty of people have argued that SOPA was quite different from CISPA, because SOPA did attack fundamental principles of the internet, while CISPA was just an attack on privacy. So it's interesting to see Crawford's opinion suggesting that CISPA, and other bills like it, also put some aspects of the traditional internet at risk, though in a more indirect manner.

At this point, it's impossible to deny that the people behind both bills have written them with little understanding of the internet, or how it reacts to attempts to take away openness or lock things up. Such moves will have significant unintended consequences. I wouldn't go so far as to say that CISPA itself is an attack on the internet, but it does seem reasonable to say that the theories behind it are a significant departure from the openness that the internet has thrived on in the past.

We've written plenty about the problems with the government's case against Megaupload, but it's still interesting to see law professor Eric Goldman's rather brutal assessment of the government's case, suggesting that it's clearly a case of abuse by the government:

The resulting prosecution is a depressing display of abuse of government authority. It’s hard to comprehensively catalog all of the lawless aspects of the US government’s prosecution of Megaupload, so I’ll just focus on two:

1) Trying to hold Megaupload criminally liable for its users' actions. Criminal copyright infringement requires willful infringement, a very rigorous scienter level. I discuss the implications of this high scienter requirement in more detail in my decade-old article on warez trading. Megaupload’s business choices may not have been ideal, but Megaupload has a number of strong potential defenses for its users' activities, including 512(c), lack of volitional conduct and more. Whether it actually qualified for these is irrelevant; Megaupload’s subjective belief in these defenses should destroy the willfulness requirement. Thus, the government is simply making up the law to try to hold Megaupload accountable for its users' uploading/downloading.

2) Taking Megaupload offline. Megaupload's website is analogous to a printing press that constantly published new content. Under our Constitution, the government can’t simply shut down a printing press, but that's basically what our government did when it turned Megaupload off and seized all of the assets. Not surprisingly, shutting down a printing press suppresses countless legitimate content publications by legitimate users of Megaupload. Surprisingly (shockingly, even), the government apparently doesn't care about this “collateral,” entirely foreseeable and deeply unconstitutional effect. The government's further insistence that all user data, even legitimate data, should be destroyed is even more shocking. Destroying the evidence not only screws over the legitimate users, but it may make it impossible for Megaupload to mount a proper defense. It's depressing our government isn't above such cheap tricks in its zeal to win.

The government has also been shockingly cavalier about the collateral consequences of its prosecution on the marketplace. Legitimate web hosts, and their investors, are quaking in their boots that they will be next. It doesn’t help that the content industry is circulating a “kill chart” of its next desired targets.

The more we hear and see about the government's case against Megaupload, it really appears that the government was relying almost entirely on the fact that Megaupload looked bad. It's hard to deny that there were plenty of things that Kim (in particular) did that makes him appear pretty obnoxious. But being a crass showoff doesn't automatically make you a criminal. Even worse, the government's action in the case to date seem to be doing everything possible to undermine their own case as they try to railroad Megaupload. I'll admit, when I heard about the shutdown, I (perhaps naively) assumed that the government had a pretty solid case. To take down a whole site, they must have the goods. In fact, in talking to another law professor in the hours after the indictment was made public, I was cautioned that there simply must be more to the case, because what was in the indictment just didn't seem complete. Perhaps there's something hidden in the back pocket of the DOJ, but so far it seems like (former anti-piracy exec) US Attorney Neil MacBride ran an effort against Megaupload that was more focused on how it looked to his former colleagues than what the law actually says.

Over the last few years, we've noticed that nearly every victory the FBI celebrates against terrorism is actually about stopping its own terrorist plots that it feeds to hapless individuals, often nudging them and pushing them down the road to "become" terrorists, despite commonly displaying little to no aptitude for actual terrorism.

Add the NY Times to the newspapers who are beginning to question the FBI's penchant for setting up its own plots for the sake of a high profile arrest of some clueless individuals.

The United States has been narrowly saved from lethal terrorist plots in recent years - or so it has seemed. A would-be suicide bomber was intercepted on his way to the Capitol; a scheme to bomb synagogues and shoot Stinger missiles at military aircraft was developed by men in Newburgh, N.Y.; and a fanciful idea to fly explosive-laden model planes into the Pentagon and the Capitol was hatched in Massachusetts.

But all these dramas were facilitated by the F.B.I., whose undercover agents and informers posed as terrorists offering a dummy missile, fake C-4 explosives, a disarmed suicide vest and rudimentary training. Suspects naïvely played their parts until they were arrested.

As the article makes clear, claims of entrapment rarely work in these cases, but it certainly raises questions about whether the FBI is actually protecting us from real plots or spending time creating publicity stunts that leave some people in jail. No doubt, some of these setups bust people who could potentially be interested in taking part in attacks if they had any real opportunity to do so. But, in most cases, it doesn't seem like they would ever have the opportunity (unless the FBI was helping). In one case, the judge -- even as she was sentencing the guy to decades in prison -- admitted that the guy wouldn't be a "terrorist" if it weren't for the FBI:

"Only the government could have made a 'terrorist' out of Mr. Cromitie, whose buffoonery is positively Shakespearean in its scope...."

This is the same guy who laughed at earlier attempts by an FBI informant to get him to get involved in a plot.

There's no doubt that there are real plots being attempted. But wouldn't the FBI be better off focusing on those, rather than play acting all the time?

If you're a Facebook user, by now you've probably run into the "Social Reader App" walls that some websites have put in between you and their content. It's easy to see why the content providers might want you to use these apps, and clearly some people are using them happily, but most of the time they are just frustrating. I've yet to see one that provides a clear and obvious link to bypass the app and view the content—though some do slip it in at the bottom or say something counterintuitive like "press cancel to continue to the website". It's a classic example of trying to get more out of your users without offering them anything in return.

Joseph Kranak points us to a segment of The Oatmeal's awesome State of the Web, Spring 2012 Edition which, as usual, nicely skewers the whole situation (click for big version):

Be sure to check out the rest of the State of the Web, which includes an ode to Kickstarter and some suggestions for a Valve/Apple gaming console.

We recently wrote about Pakistan's attempts to build its own internet censorship regime, capable of blocking 50 million sites that the government doesn't like. However, a petition by civil rights groups has apparently resulted in a court ruling saying that such censorship is unconstitutional under the Pakistani constitution. Of course, from the writeup linked above (from Reporters Without Borders), it appears that there is at least some skepticism that the Pakistani government will obey its own court:

The high court’s ruling, if respected, would make it impossible for the government to introduce any nationwide website filtering system.

While welcoming the ruling, which penalizes the lack of transparency in the PTA’s past website blocking, Reporters Without Borders calls for vigilance because the PTA could try to circumvent it by devising a constitutional procedure based on the anti-blasphemy law and national security provisions.

Still, it's good to see courts around the globe pushing back on this desire to censor the internet.

RIM was the defendant in one of the most well known patent troll lawsuits of all time -- the fight against NTP, a company that claimed to have more or less invented wireless email. In the end, even though the USPTO had problems with the patents, RIM ended up settling for $612 million. What most people don't remember, however, is that one of the reasons that RIM got sued in the first place was that the guy behind NTP read an article in the newspaper about RIM suing tons of competitors over its own patents. The company hasn't seemed quite as aggressive about its patents since then -- but perhaps that's going to change. Reuters is reporting that, as RIM has been struggling to compete in the marketplace, it's hired a law firm to help it consider more options and it appears that getting more money from its patents is one of the options being explored. Considering just how "valuable" patents have become lately due to ridiculous disputes and awards, this isn't surprising. But it's pretty sad to see companies increasingly turning to patent trolling and shaking down actual innovators when they can no longer compete in the market.