In copyright circles, Mark Twain's speech to Congress in 1906 is well known as being the point at which he made clear his desire that copyright should be vastly expanded to make sure his kids kept earning money:

My copyrights produce to me annually a good deal more money than I have any use for. But those children of mine have use for that. I can take care of myself as long as I live. I know half a dozen trades, and I can invent a half a dozen more. I can get along. But I like the fifty years' extension, because that benefits my two daughter, who are not as competent to earn a living as I am, because I have carefully raised them as young ladies, who don't know anything and can't do anything. So I hope Congress will extend to them that charity which they have failed to get from me.

He later argues for infinite copyright:

The English idea of copyright, as I found, was different, when I was before the committee of the House of Lords, composed of seven members I should say. The spokesman was a very able man, Lord Thring, a man of great reputation, but he didn't know anything about copyright and publishing. Naturally be didn't, because he hadn't been brought up to this trade. It is only people who have had intimate personal experience with the triumphs and griefs of an occupation who know how to treat it and get what is justly due.

Now that gentleman had no purpose or desire in the world to rob anybody or anything, but this was the proposition--fifty years extension--and he asked me what I thought the limit of copyright ought to be.

"Well," I said, "perpetuity." I thought it ought to last forever.

Some have argued, somewhat convincingly, that Twain as actually doing a somewhat brilliant satire, which not everyone understood. That would be awesome, if true, and there are some hints that it may very well be. However, it does appear that Twain himself was somewhat more conflicted on this particular issue. Siva Vaidhyanathan has an entire chapter (pdf) of his excellent book, Copyrights and Copyrwrongs, devoted to Twain's fluctuating views on copyright. However, he does suggest that later on in life -- from 1898 onward basically -- Twain appeared to be a strong maximalist.

So it's interesting to then discover, via Joe Betsill, that during that same period, Twain argued that "the substance, the bulk, the actual and valuable material of all human utterances—is plagiarism" and that this wasn't a bad thing. The specifics are that Twain was writing a letter to Helen Keller, who a decade earlier (at 12-years of age) had just gone through a controversy in which she was accused of plagiarizing heavily from another book for her own work, The Frost King. Twain wrote to Keller, with whom he was friendly, after learning about the plagiarism accusations:

Oh, dear me, how unspeakably funny and owlishly idiotic and grotesque was that "plagiarism" farce! As if there was much of anything in any human utterance, oral or written, except plagiarism! The kernel, the soul—let us go further and say the substance, the bulk, the actual and valuable material of all human utterances—is plagiarism. For substantially all ideas are second-hand, consciously and unconsciously drawn from a million outside sources, and daily use by the garnerer with a pride and satisfaction born of the superstition that he originated them; whereas there is not a rag of originality about them anywhere except the little discoloration they get from his mental and moral calibre and his temperament, and which is revealed in characteristics of phrasing. When a great orator makes a great speech you are listening to ten centuries and ten thousand men—but we call it his speech, and really some exceedingly small portion of it is his. But not enough to signify. It is merely a Waterloo. It is Wellington's battle, in some degree, and we call it his; but there are others that contributed. It takes a thousand men to invent a telegraph, or a steam engine, or a phonograph, or a telephone or any other important thing—and the last man gets the credit and we forget the others. He added his little mite—that is all he did. These object lessons should teach us that ninety-nine parts of all things that proceed from the intellect are plagiarisms, pure and simple; and the lesson ought to make us modest. But nothing can do that.

Then why don't we unwittingly reproduce the phrasing of a story, as well as the story itself? It can hardly happen—to the extent of fifty words except in the case of a child; its memory-tablet is not lumbered with impressions, and the actual language can have graving-room there, and preserve the language a year or two, but a grown person's memory-tablet is a palimpsest, with hardly a bare space upon which to engrave a phrase. It must be a very rare thing that a whole page gets so sharply printed on a man's mind, by a single reading, that it will stay long enough to turn up some time or other to be mistaken by him for his own. No doubt we are constantly littering our literature with disconnected sentences borrowed from books at some unremembered time and now imagined to be our own, but that is about the most we can do. In 1866 I read Dr. Holmes's poems, in the Sandwich Islands. A year and a half later I stole his dedication, without knowing it, and used it to dedicate my "Innocents Abroad" with. Then years afterward I was talking with Dr. Holmes about it. He was not an ignorant ass—no, not he; he was not a collection of decayed human turnips, like your "Plagiarism Court;" and so when I said, "I know now where I stole it, but whom did you steal it from," he said, "I don't remember; I only know I stole it from somebody, because I have never originated anything altogether myself, nor met anyone who had."

To think of those solemn donkeys breaking a little child's heart with their ignorant rubbish about plagiarism! I couldn't sleep for blaspheming about it last night. Why, their whole lives, their whole histories, all their learning, all their thoughts, all their opinions were one solid rock of plagiarism, and they didn't know it and never suspected it. A gang of dull and hoary pirates piously setting themselves the task of disciplining and purifying a kitten that they think they've caught filching a chop! Oh, dam—

That was sent in 1903. Yet just three years later, he was arguing to Congress that ideas were property and should remain in the possession of those that created them forever:

So if I could have convinced that gentleman that a book which does consist solely of ideas, from the base to the summit, then that would have been the best argument in the world that it is property, like any other property, and should not be put under the ban of any restriction, but that it should be the property of that man and his heirs forever and ever, just as a butcher shop would be, or--I don't care--anything, I don't care what it is. It all has the same basis. The law should recognize the right of perpetuity in this and every other kind of property.

Now, plagiarism and copyright are not exact equivalents -- though there can (and often is) significant overlap. But it's difficult to see how the same person can reasonably argue both points. Perhaps that lends some credence to the claims that the Congressional hearing was, in fact, satire. Either way, I think I like the 1903 Mark Twain waxing poetically on how all ideas are plagiarism much more than the 1906 Mark Twain whining about how his children are too useless to do anything and need to keep making money from his books long after he's dead.

When Authors Guild boss Scott Turow said that brick-and-mortar stores are the future of book sales, it was hard not to laugh. Tim Cushing & I joined forces to supply him with an ad for his quixotic campaign, and as expected, defenders of the joy of printed books and brick-and-mortar bookstores appeared in the comments to sing their praises in a non-satirical fashion.

But the thing is, if people love bookstores, then bookstores will survive. But the market will inevitably scale according to demand—and there can be no doubt that demand is declining. I count myself among those who get a warm feeling from shopping in a nice independent bookstore full of mismatched shelves and handwritten signs, and I think that's what most people are pining for when they talk about bookstores, not big box retailers with display tables of pop-psychology books and extraneous Twilight supplements. The latter originally thrived on convenience, selection and price—and in those areas they have been rendered completely obsolete by online retailers. But the former subsist on community, personality and charm—things that can be accomplished online, but in a much different way that will never wholly replace a physical space, and that are not really a part of Amazon's arsenal. That doesn't change the fact that independent bookstores are struggling, or that many have shut down and many still will, but the impassioned defenses of the neighbouhood bookstore that pop up in every discussion of this topic show that there is absolutely still a market to be served, even if the size of that market is still uncertain.

There's an additional fear that even if stores offer a superior experience that keeps customers coming in the door, many of those customers will simply browse and then order the books online at a lower price, thus reaping the benefits of the small store without paying for them. I'm not sure how justified that is. People still like to leave a store with something in their hands—and if you build an engrossing retail space with a sense of community, where people interact with the books and each other, they won't be thinking about their smartphones or Amazon's superior prices. A bookstore can also go a step further: Jim O points us to the story of the Harvard Bookstore, where the new owner set up an on-demand printer/binder to see if he could leverage the opposite trend. People don't just shop physically then buy digitally—they also shop digitally and buy physically:

Maybe access to the vast universe of digital content could also save the bookstore. Maybe the bookstore, while limited in inventory, could evolve in the digital world and become a destination where people had access to every digitized book ever published.

To truly compete, he would also have to solve consumer’s expectations for instant gratification and delivery. Jeff needed a complete production, distribution, and fulfillment model. He has likely shocked a lot of people by building one in his own backyard.

Essentially, Jeff installed a printing press to close the inventory gap with Amazon. The Espresso Book Machine sits in the middle of Harvard Bookstore like a hi-tech visitor to an earlier era. A compact digital press, it can print nearly five million titles including Google Books that are in the public domain, as well as out of print titles. We’re talking beautiful, perfect bound paperbacks indistinguishable from books produced by major publishing houses. The Espresso Book Machine can be also used for custom publishing, a growing source of revenue, and customers can order books in the store and on-line.

You can walk into the store, request an out-of-print, or hard-to-find title, and a bookseller can print that book for you in approximately four minutes. Ben Franklin would be impressed.

I've been excited about the prospects of the Espresso Book Machine for a while. Though print is obsolete in many ways, a lot of people still like printed books and express distaste for e-readers. Personally I don't see myself ever giving up printed books entirely (or selling my small collection of antiques), but I also don't mind reading electronically—and unlike many print defenders, I don't condemn those who do truly make the switch. Print still has value to the end consumer, and as such it is not entirely obsolete as a product—but the incredibly wasteful system of printing off huge runs of books and shipping them thousands of miles is. On-demand printers could solve that paradox.

So how is it working out for the Harvard Bookstore? There are no firm numbers, but the owner reports double-digit sales growth monthly over the past year. Can every town and city support a store like this? Certainly not—nothing changes the fact that demand for bookstores has gone down, and it's naive for those who still love them to expect the market not to shrink accordingly. But the reverse is also true: as long as some demand exists, smart entrepreneurs can find ways to stay relevant and succeed.

We've talked a lot about Louis CK's massively successful experiment in selling a comedy special direct to fans at a low price with no DRM and (most importantly) being totally open and human about the experience. In response, a few other comedians, like Jim Gaffigan and Aziz Ansari, have basically done the same thing.

However, it looks like Louis CK (like lots of smart, creative artists we write about) is hardly resting on his laurels. He's realized that there's nothing that says he has to only sell this one video and then wait a year or more until another one is ready. He's got the platform, so he might as well sell stuff. A few publications have noticed that he put up another live album (audio only) for the same price using the same system. But in looking at Louis' site, it looks like he's actually put up two additional albums -- the audio version of his HBO special Shameless (previously only available as video) and a Carnegie Hall tour show that's never been released.
Both of these were released with basically no fanfare or no announcement other than a brief tweet.

It will be interesting to see what happens here. First of all, some may feel that audio only offerings don't have quite as much value as video -- though it still seems like a decent price. Others may not be as interested in "old" material, even if it hasn't been released in this format. Also, I wonder what impact there will be for the low-key release. Part of the reason that the original got so much attention was the way he put himself out there: announcing this "big" new thing, doing an AMA on Reddit, etc. Whereas this is just him putting it up. Of course, similarly, there may be some concern of "oversaturation," where people feel they just gave Louis money for that other thing, so is it worth paying up again?

However, I also like the idea that he's combing the archives and finding other stuff that people might be interested in and giving them choices for more things they may want to buy to support him. I think that it's helpful to break out of the somewhat traditional mindset of "I release this album/show and then I'm done for a while." Louis seems to still be thinking about what else he can do, and I'm sure that will lead to some interesting ideas.

I'm not sure how all these factors and variables play together -- and I have no idea if Louis will ever share the results so that the rest of the world can learn with him (though I hope he is willing to do so). I do still love the fact that he's continuing to try things though.

A lot of vegetarians were likely inspired by The Jungle (the novel about the meat packing industry), but a lot has changed in the field of meat since the early 1900s. However, transparency about how animals are treated before they're served onto dinner plates could perhaps use a little more work. Here are just a few recent stories that are starting to gross out some meat-eating Americans.

• Gerald Zimstein coined the term "pink slime" and the substance has been in the news because of its "yuck" factor. But pink slime isn't particularly unhealthy -- or at least it hasn't been proven so (yet?). [url]
• Tuna scrape is almost like hamburger meat, and its use in sushi could become another kind of pink slime issue. So be careful with those spicy tuna rolls... [url]
• The use of antibiotics in food production might be getting out of hand, but fortunately, we can reduce antibiotics in the meat industry by using vaccines and other techniques. The concern is that we're slowly creating a world of antibiotic-resistant bacteria. [url]
• The enzyme transglutaminase is also known as "meat glue" -- and creating frankenstein steaks from cheap cuts of meat. While transglutaminase is generally safe and naturally occurring, the danger of using it comes from gluing together pieces of meat that may have bacteria contamination -- and when the glued-together meat is merely seared on the outside, the rare inside isn't properly cooked (and not sterile like the inner part of a single piece of meat). [url]
• To discover more food-related links, check out what's floating around in StumbleUpon. [url]  

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

We've written tons of stuff on the ridiculousness of statutory damages for copyright infringement -- which can put damages for a single infringement at up to $150,000 (for willful infringement). When you're talking about a $0.99 song, that seems completely out of line. The reason for statutory damages (supposedly) is that figuring out actual damages is simply too difficult, so a statutory range lets you ignore any discussion of having to prove real damages. In most copyright lawsuits, plaintiffs automatically take the statutory damages rates. It's pretty rare for anyone to opt-out. However, opting out is exactly what Oracle has done in its ongoing lawsuit against Google. And it did this despite the judge ridiculing the company for the decision. From Rachel King at ZDNet:

When Alsup heard Jacobs say this, he warned that if Oracle goes down this path, they might not win anything at all, adding that it is the “height of ridiculousness” to think that Oracle could claim “hundreds of millions” of dollars for nine lines of code.

“The law can’t operate that way,” Alsup said. “In my mind, you’re making a mistake.”

In a later discussion on Friday morning, David Boies, also representing Oracle, tried to defend this strategy, arguing that the burden of proof is on Google here — not Oracle.

“What we are saying is once you proved infringement, we think under the law we have claim for infringer’s profit case,” Boies asserted.

The only thing I can figure here is that Oracle is doing this just to be a pest. Even if it does eventually win on the copyright issue (still an open question given the judge needing to rule on the copyrightability of APIs), it's not going to get that much money either way. The $150,000 statutory damages numbers are pocket change for either company, but as the judge made clear, in all likelihood it would get less (or nothing) if it tries to get "infringer's profits," because the contribution of the code in question is so minimal. However, it is possible that the fight over what those "profits" might be will simply prolong the case... and the expense of the case. So perhaps this is just a strategy by Oracle to drag things out? Maybe its lawyers are hoping that will make Google want to settle? Other than that, I'm with the judge in being a bit perplexed by the reasoning here.

We've been covering the attempts by Dutch anti-piracy operator BREIN to play a legal game of whac-a-mole to block The Pirate Bay by forcing ISPs to block access, then blocking proxies that provide access, and now blocking anyone from even talking about ways to get to The Pirate Bay. Bizarrely, a court in The Hague has agreed, and has come out in favor of blocking the Dutch Pirate Party from even discussing some of this stuff:

The Court specifically ruled that the Party’s reverse proxy has to remain offline. It was further ordered that Pirate Bay domains and IP-addresses have to be filtered from the Pirate Party’s generic proxy. In addition the Pirate Party can’t link to other websites that allow the public to bypass the blockade. These orders are only valid when paired with an encouragement to circumvent.

Basically, telling people how to get around a block, even if it's linking to a general proxy (not a specific one) is now barred in the Netherlands. The fact that the court now is telling proxies how they can work is a huge overreach. That seems like a pretty blatant restriction on free speech. The thing is, do the folks at BREIN actually think this charade is effective? All it seems to be doing is enraging tons of people in the Netherlands, and doing absolutely nothing to stop them from going to The Pirate Bay.

The internet sometimes has a short memory. While Verizon is often (quite accurately) seen as a big company that does some ridiculous things, one issue that the company has been good about for many years is fighting against overly aggressive attempts by copyright holders to identify IP address holders. A decade ago, Verizon was the key player in pushing back on the RIAA's attempts to identify people it accused of file sharing without filing a lawsuit. If you don't recall, the RIAA used a rather unique (i.e. totally bogus) interpretation of the DMCA to mean that it could issue subpoenas to ISPs to identify users based on an IP address without first filing a lawsuit. Verizon fought this claim (pretty strongly) and argued for its users' privacy rights, and eventually the court sided with Verizon. In fact, this fight was a large part of the reason that the RIAA started actually suing users, because it meant that it had to sue first in order to identify.

Thus, it's not entirely surprising -- but still nice -- to find out that Verizon is, once again, fighting to protect its users' privacy. Last fall, we wrote about the unfortunate decision by publisher John Wiley & Sons to follow the trail led by copyright trolls, and start suing groups of people accused of sharing Wiley's infamous "For Dummies" books via BitTorrent. Similar to copyright trolls, Wiley lumped together a bunch of IP addresses into a single lawsuit -- though, it didn't go quite as far as some trolling operations.

Even so, Verizon is going to court to fight back against the subpoenas for user information. It has a few procedural objections, and also noted (as many courts have found) that lumping together many people in the same lawsuit is improper joinder. But the key issues are privacy ones. Verizon objected that the identifying information isn't really designed to get "relevant" information for a lawsuit, but rather to send a settlement letter (like most copyright trolling operations). Furthermore, Verizon takes it up a notch by claiming that disclosing such information may violate "rights of privacy and protections guaranteed by the First Amendment."

Apparently, there will be a discussion with the court concerning these objections soon, but in the mean time, it's good to see Verizon, once again, defending some privacy rights for its users.

We've noted how frequently the entertainment industry -- especially the big record labels with the help of the RIAA -- seem to sue innovative upstarts. They usually do this as part of a two-part plan: they either want to kill off the innovation, or they use the lawsuit as the opening gambit in trying to get a big chunk of the equity of the startup (which they then stifle and kill). News broke recently that online music storage locker MP3Tunes, one of the first of its kind, filed for bankruptcy in large part due to the years-long legal attacks from EMI. The thing is, MP3Tunes basically won its case, showing that the basic service was completely legal. In fact, what MP3Tunes provides is basically the same service that Amazon and Google now offer with their music lockers. MP3Tunes was one of the pioneers in the space... and for its troubles, it gets sued into bankruptcy, despite being legal.

We keep hearing people insist that the record labels are adapting. And it's true that they've been pulled, kicking and screaming, into parts of the 21st century. But the second that anyone comes along doing anything remotely interesting and which provides real value, they freak out and sue. And it goes beyond that. As Robertson describes in his blog post about this, EMI apparently went to great lengths to destroy MP3Tunes, even if it was legitimate:

At every opportunity EMI dragged out the legal process making it costly and burdensome. One example is the interrogation of company employees in all-day inquisitions called depositions where attorneys try to trick people into making admissions. In our case, they deposed not just management but nearly everyone in the company all the way down to clerical help and customer support personnel. They even paid $25,000 to get an ex-employee to agree to a deposition. For management they deposed everyone - some multiple times with me getting deposed 3 separate times.

The legal pressure was not just confined within MP3tunes. EMI sent legal demands to existing partners and potential partners were told they could not work with MP3tunes or risk losing their license to sell EMI music. More than one digital company told us they wanted to work with us, but were prohibited from doing so by EMI. They used their government-granted copyright monopoly to get MP3tunes blackballed in the industry.

EMI spent an estimated $10 million dollars with multiple law firms to arm their attack against MP3tunes in an attempt to thwart unlicensed personal lockers. They know it's difficult if not impossible for startups to fight long costly legal battles. Their hope is that the startup cannot fund a protracted legal battle and they win by default. This happened with the music search engine Seeqpod, Muxtape, Favtape and many others that have quietly faded away. They know that even if the digital upstart prevails in court, they will be terminally weakened. Veoh won multiple rounds of their copyright battle outright only to be forced into bankruptcy after spending $7 million on legal bills.

As Robertson notes, fighting the legal battle was one thing, but blocking the company from partnering and building out its business was the really deadly part. Robertson, of course, has been outspoken in his criticism of the RIAA over the years, and has been through previous legal battles with them as well. In part, some of EMI's infatuation with this case appeared to be personally vindictive (they sued Robertson directly as well as the company). Whether or not MP3Tunes could have succeeded may be an open question. But it seems clear that the company had no chance at all given the barriers that EMI put in its place. Of course, during this same period we've witnessed the collapse and sale of EMI (in pieces) as well. Perhaps, instead of suing the innovations that would help move it into a modern digital era, it should have been looking for ways to embrace them.

As we mentioned earlier this week, we're experimenting with doing a live discussion for the Techdirt book club. For April, the book was Copyfraud by Jason Mazzone who will be joining us today to talk about it at noon PT (3pm ET).
And don't forget that the book club book for May is Reclaiming Fair Use by Patricia Aufderheide and Peter Jaszi. We'll be publishing more excerpts in the coming weeks...

Over the last few months, Techdirt has been reporting on the amazing rise of the German Pirate Party, with win after win after win. Politicians in the other parties have looked on aghast, powerless to halt the rise of something they clearly can't fathom. Inevitably, the fightback has finally begun, but packaged as an artists' revolt, not simply that of the copyright industries worried about their profit margins.

Perhaps the most dramatic manifestation of that was a major section in the Handlesblatt newspaper (German original) a few weeks ago. It was entitled "A hundred creatives provoke the Pirates", and included 160 statements on the subject of "My head belongs to me." That paints this as huge numbers of artists having their ideas taken away by the Pirates, but the reality was a little different.

Of those 160 statements, only 30 came from artists; the rest were from politicians, media companies, lawyers, academics and business groups (German original.) Unsurprisingly, most of those 130 statements were attempts to defend their own positions as gatekeepers of culture – often well-paid ones.

The artists' comments were little better. Here's a small selection:

The Pirate Party would never think to demand in the name of freedom that German bakers should in the future give away their bread, and have their baking sponsored by the state. (Gisa Klönne.)

Free content is intellectual theft. (Thomas Weymar)

The Pirate Credo, that ideas can't belong to only one person, is good news for people who don't have any ideas of their own. (Frauke Scheunemann.)

Without protection for intellectual property there would be intellectual chaos. (Pater Anselm Grün.)

It's also true in the age of YouTube: without copyright, there can be no quality films or TV. (Franka Potente.)

Germany can't afford to turn the majority of its creators into hobbyists. (Carolin Otto.)

The comments mainly consist of willful, or perhaps real, incomprehension of the digital world, combined with a sense of entitlement demonstrated by many artists. But there's also something new here, which the German magazine Der Spiegel analyzed as follows:

Artists can always be counted on when it comes to standing up for democracy and justice. Ever since [the Nobel Prize-winning writer] Günter Grass drummed up support for [former German Chancellor] Willy Brandt and the [left-wing party] SPD 40 years ago, Germany's intellectuals have congregated on the progressive side. When in doubt, they lean to the left, and participating in the cutting edge is considered a central duty.

But their love affair with the Pirate Party is cooling off before it even had much of a chance to begin. In recent days, artists have spoken up one after another, expressing their unease at the movement's calls to deregulate all digital content.

The rise of the Pirate Party has suddenly revealed many of these "progressive", "cutting-edge" intellectuals to be just as keen on preserving their privileged position, and just as frightened of change, as they've mockingly accused the bourgeoisie and the conservatives of being in the past. Indeed, many of the artists' comments in the Handelsblatt section are little more than unoriginal variations on the old "get off my lawn" theme.

That will come as a shocking realization for many artists who until now have believed themselves to be in the vanguard of society, and the champions of every kind of progress. The rise of the Pirate Party has called that into question -- hence the vitriol that it has encountered recently.

And it's not over yet. The Netzpolitik blog notes that another 100 artists have just signed a declaration in the leading newspaper Die Zeit, under the rubric, "A call against the theft of intellectual property". Just to hammer home the point, the term "theft" is used twice more in the text (German original), which points the finger at "global Internet companies" whose business models are based on the "appropriation" of artists' work, and demands that copyright protection be strengthened, rather than moderated.

Although it's disturbing to see this kind of poorly-informed mud-slinging, it does demonstrate one thing: that the Pirate Party is not just shaking the German political system to its foundations, but also challenging a whole range of cozy assumptions about copyright and creativity, and their role in modern society. Expect even more -- and dirtier -- attacks in the future.

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It's long been known that law enforcement relies heavily on mobile phone providers to give them data on where people are, based on the location info on their mobile devices. Back in 2009, a Freedom of Information Act request revealed, for example, that Sprint had provided law enforcement officials with GPS data a staggering 8 million times in the previous year. Now, it's important to note that many of those times were apparently multiple "pings" on the same person/device. But, still. You can bet those numbers have only gone up. Last year, Senator Wyden proposed legislation requiring that law enforcement get a warrant. He has also hinted strongly at the idea that part of the government's secret interpretation of the PATRIOT Act involves access to location info on just about anyone with a mobile device.

It appears that others are taking some interest in the possibility of widespread government tracking without a warrant as well. Senator Al Franken has sent a letter to Attorney General Holder asking some pretty pointed questions about how frequently the government gets location data from mobile service providers, and what legal standards it uses. He points to the Jones ruling, which suggested there could be a 4th Amendment violation for placing a GPS device on a car, as one of the reasons for his concern.

I was very concerned to read recent reports suggesting that state and local law enforcement agencies may be working around the protections of Jones by requesting the location records of individuals directly from their wireless carriers instead of tracking the individuals through stand-alone GPS devices installed on their vehicles. I was further concerned to learn that in many cases, these agencies appear to be obtaining precise records of individuals' past and current movements from carriers without first obtaining a warrant for this information. I think that these actions may violate the spirit if not the letter of the Jones decision.

I am writing to ask you about the Department of Justice's own practices in requesting location information from wireless carriers. I am eager to learn about how frequently the Department requests location information and what legal standard the Department believes it must meet to obtain it. I would also like to know how the Department may have changed these practices since the Jones decision.

While I certainly appreciate this effort and line of inquiry -- I'm not sure that Jones really makes that much of a difference. As we said when it came out, the Justices really danced around the larger issues, with an extremely narrow ruling, which left open the question of how it applied to GPS devices that weren't put on the cars by law enforcement. That is, the ruling focused almost entirely on whether or not the placing of the device constituted a search -- not about the use of such a device. Still, the government's actions need much greater scrutiny here, as there's an awful lot of evidence suggesting that law enforcement is using the power to get people's locations from their mobile phone providers at an incredible rate, and with little to no oversight. I doubt that AG Holder will provide useful answers to this request, but it's still good that Senator Franken is asking.

Well this would be funny if it weren't so sad and didn't involve mass censorship. Iran has been getting a lot of attention lately for its plans to increase its internet filtering -- and potentially even set up its own "safe" (read: heavily monitored) local internet. For now, as the filters have been going up, apparently lots of sophisticated internet users in Iran have been figuring out how to get around them. No problem. Iran's "supreme leader" Ayatollah Ali Khamenei simply issued a "fatwa" against using anti-filtering tools -- and that was published to the web.... where it was promptly filtered. Yes, you read that right. His attack on anti-filtering technology was itself a victim of the filter -- such that you couldn't read it unless you were using anti-filtering technology (the same technology the fatwa was condemning).

Apparently this happened because (of course) Iran's internet filter is so ridiculously unsophisticated that it works based on keywords -- and the mere mentioning of anti-filtering software likely set off the filters. Of course, while you might hope this would lead to a realization that such filters are not a good idea, somehow I doubt there will be any such epiphany.

We've been warning for a while about the TPP negotiations, and how the big interests who pushed SOPA were making a concerted effort to use the (very questionable and extremely secretive) nature of international trade negotiations to sneak through many of the things they wanted in SOPA, without any scrutiny. Make no mistake: while the public has no access to, or information about, what the federal government is negotiating, the big special interests are well informed. As pressure has been mounting against TPP, it appears that the US Chamber of Commerce has "brought the band back together," putting outa letter to the Obama administration explaining why draconian IP rules must be included in the TPP. The letter is signed by a who's who of SOPA supporters, including (of course) the Chamber of Commerce, the MPAA, the RIAA, A2IM, PhRMA, AAP, BSA, ESA and more. Basically, it's a bunch of also ran industry trade groups whining to the feds that they can't innovate anymore and they need economically damaging mercantilist-style protectionism.

For the TPP to achieve that vision, it is essential that the final TPP agreement incorporate comprehensive and high-standards for the protection and enforcement of intellectual property (IP) rights – including patents, trademarks, copyrights and trade secrets. And that outcome can only be achieved through continued and heightened U.S. leadership. By contrast, any attempts to weaken IP rights or to exclude any sector from protection must be strongly rejected and would be inconsistent with overall U.S. Government policy and U.S. economic and trade interests.

Almost nothing in that paragraph is accurate (or honest). The TPP can be a perfectly good trade agreement without touching on IP issues. It's just that, in the past few years, industry lobbyists have realized that sneaking IP law expansion through international obligations is a good way (they thought) to keep them under the radar, and to get ridiculous rules pushed through without having to go through the standard legislative efforts. In fact, deals like these often require changes to the laws after-the-fact, which is exactly what the industry wants. Because then, rather than arguing for a law because they know it will hurt innovative upstarts, they can just stand around pouty-faced, talking about how we have to "respect our international obligations."

Furthermore, there is tremendous evidence at this point that IP laws are way too broad and too draconian, and that's causing significant hindrance to innovation. Claiming that no weakening of IP laws can be allowed is a ridiculous and unsupportable maximalist agenda, designed not to help the US, but to lock in entrenched players at the expense of disruptive innovators.

We commend your Administration for recognizing the key role played by innovative and creative industries in driving economic growth, jobs and competitiveness. As recently highlighted in the March 2012 U.S. government report – Intellectual Property and the U.S. Economy: Industries in Focus – U.S. IP intensive industries support more than one in every four jobs, over one-third of GDP, and approximately 60 percent of exports. The protection and effective enforcement of IP rights are therefore of critical importance to the economic growth and prosperity not only of the United States but also of its eight TPP-negotiating partners.

This is a load of hogwash. The "report" used the US Chamber of Commerce's own totally discredited methodology to inflate numbers to ridiculous levels. Furthermore, the US CoC's interpretation that this report shows that enforcement is "critical" is, once again, complete hogwash. It assumes -- without any proof whatsoever -- that these IP intensive industries exist because of strong IP laws.

What the letter conveniently ignores is that some of the largest players -- and the fastest growing ones -- included in the list of "IP intensive" industries were the tech companies who fought against SOPA and who have complained about enforcement and protection levels being way, way too high. To use those industry's own growth as proof of the need for greater enforcement isn't just disingenuous, it's downright obnoxious.

As you and your Administration have repeatedly recognized, strong IP protections have been an essential element in fostering the explosive growth in new and more efficient technologies, increased productivity, life-saving medicines and other health technologies, as well as a wide variety of creative and educational works. As a result, high-standard IP protections are a key driver of economic growth in the United States and overseas and are linked to the creation and retention of jobs in industries as diverse as consumer and industrial products, educational products and entertainment, scientific products and equipment and information and communications technology.

Ah, flattery. And yet, there is no evidence to support the statement above. In fact, research has shown that IP laws do not, in fact, lead to explosive growth in technologies. Rather, the laws tend to lag growth -- showing that massive growth often happens in the absence of such laws or with weaker laws. The laws are then put in place to protect the leaders against new upstarts. This is exactly what the signatories of the letter are trying to do.

While the benefits of strong IP protections and enforcement are widely supported throughout the United States and safeguarded in our Constitution and laws, such protections are at serious risk in the ongoing TPP negotiations. Some seek to enshrine low standards of protection, with limited enforcement, in the final TPP agreement, arguing that U.S. proposals would be harmful and could undermine other interests.

Actually, some seek to push back on the ridiculous excesses of those who signed this letter, in order to look out for what actually benefits the public the most. Shocker, I know, but these laws are supposed to (we're told) benefit the public. Of course, the letter attacks such claims as well:

The strong IP protections proposed by the U.S. government in the TPP negotiations do not represent, as some suggest, a threat to public health, the development and expansion of the Internet or rights of freedom of speech, but rather a much-needed response to increasingly sophisticated threats to IP protection throughout the world. More, not less, rigorous IP rules are needed to thwart the explosion in IP infringement, including of pirated, counterfeit and unlawful copycat products throughout all sectors of the economy, and trade-secret theft.

Notice how these groups don't even hide the fact that they know what IP protections are being proposed by the US government in the TPP negotiations. That's because they're heavily involved in the process. You know who's not? The public. When special interests -- especially ones with a history of trampling all over the public interest -- get to help write the laws and the rules, while the public is kept in the dark, it's a pretty safe bet to expect that the public will get trampled again. Sorry, special interests, but saying you won't trample the public interest, while not letting the public into the debate, isn't that convincing.

Furthermore, we're already seeing such laws harm public health, hurt internet development, and be used to attack free speech. We can provide tons of examples. So claiming that it won't do more of that is a laughably ridiculous assertion.

What's also true is that never has expanding IP laws and enforcement been successful in "thwarting" infringement. It may work briefly, but within months, people find other ways to infringe. The only thing that works is encouraging real innovation in the field -- enabling startups to enter the market and do cool new things. Let them compete with "piracy" and innovative companies can and do succeed (though the industry then wants to shut them down or squeeze more money out of them). Yet the TPP isn't about enabling disruptive innovators. It's about giving slow, lumbering legacy companies who don't want to adapt the ability to kill innovation.

In their essence, the arguments against strong IP protections are largely based on the misguided assumption that strong IP protections advance only the interests of IP exporting countries and disadvantage countries with less well developed IP-dependent industries. In fact, the adoption of strong IP protections by all countries in the TPP and more widely promotes strong benefits for all, whether or not the country has developed its own major IP-based industries

Citation needed. Seriously. Because tons upon tons of studies have shown exactly the opposite.

Developed and developing countries that have adopted stronger IP protections have proven better able to develop their own technological, science, creative and other innovative and IP-dependent industries, advancing their own economic growth, productivity, exports, innovation and the interests of their workers and consumers alike.

This is lying by use of correlation, rather than causation. The real relationship is the opposite of what they're saying. The innovation almost always precedes the increase in IP protections, which then grant the leaders the ability to stifle upstarts and innovation they don't control. While it's true that developed nations have stronger IP laws, that's more about crony capitalism happening after the fact, rather than stricter laws being the cause of the innovation and growth.

The letter, in typical fashion, is a complete joke. The claims don't stand up to any sort of scrutiny. The authors must know this, but in a political world, they can get away with being extremely disingenuous.

The big antitrust case in the US against Microsoft about a decade ago focused on Microsoft's efforts in the browser war to lock out Netscape. While Microsoft lost that case, regime change at the DOJ meant that Microsoft got a slap on the wrist, rather than being broken up (as was originally proposed). In the long run, this may have been the best solution anyway. The market itself realized soon after that there was a pretty big opening for an innovative and effective web browser, and new competitors sprung up and took market share away from Microsoft: first Mozilla's Firefox, then Apple's Safari and finally Google's Chrome (and, yes, there have been a few smaller players as well, but they're all pretty small). Either way, given that Microsoft technically lost the antitrust case filed against it, and the key reason was its efforts to block the use of Netscape, you would think that the company would be a bit more sensitive about blocking competing browsers.

However, a war of words is brewing between Microsoft and Mozilla over the fact that Microsoft is effectively banning native third party browsers on Windows RT -- which will effectively become the "mobile device" version of Windows. On top of that, the company apparently is blocking the use of certain APIs that would be useful -- and which Microsoft's own browser will be able to use.

It's easy to assume nefarious intent on the part of Microsoft, but reading through the details, it feels more like a case where Microsoft is growing jealous of Apple's control over the iPhone platform, and is effectively looking to do some of the same with its next generation mobile offering. I think that's pretty short-sighted. Denying third party browsers may have worked for now, for Apple, but that's driven (in large part) by the larger than life infatuation with Apple products. I'm not sure any other company can pull it off -- especially Microsoft.

The way to compete with Apple is to attack where it's weakest -- and that's by being more open. Instead, it looks like (in typical Microsoft fashion) Microsoft has decided to try to attack Apple by copying where Apple is strongest -- in its walled garden. And, in the process, the company may end up setting off some antitrust alarm bells. Oh, and also, along the way, it will severely hurt its own platform by limiting the types of useful innovations that others might provide. That doesn't seem like a very smart business plan.

Much like the North, Game of Thrones cannot be held—it's too big and too wild. Matthew Inman warned HBO that they should make their content more accessible or risk driving people to piracy, but that isn't really HBO's style. Now jilocasin points us to the news that Game of Thrones is well on track to be the most torrented show of 2012, and nobody can deny that HBO's foolish subscriber-only distribution is a primary reason for that. Approximately 25-million times have people decided to pay the iron price for the show, and as the comments on Reddit attest, it's often because the gold price wasn't even an option. Others pay for the show but still pirate for the sake of occasional convenience:

Sometimes I just want to fire up an episode and watch it on my laptop immediately and with mobility as I'm wandering around the house, and not worry about streaming/quality issues or finding a disk, setting up the DVD player etc. I am truly lazy.

Meanwhile, Game of Thrones continues to have great ratings. And the torrent piracy count doesn't include streams, which are also hugely popular, so it only represents a fraction of the pirate world. Why not create new ways to legitimize some of those viewers, especially considering so many of them have said they want to be legitimized? I still contend that HBO-style shows owe a lot to piracy for their cultural dominance, because, if they were actually as exclusive as HBO wants to pretend they are, they would have had a much harder time gathering fans. But HBO co-president Eric Kessler thinks cord-cutting is a fad, so like most characters in the show, he's fighting silly battles while ignoring what's really going on.

Okay, this one's just for fun, but seeing that Canadian national newspaper the Globe & Mail has announced that it's following on the pointless trend of putting metered paywalls up for online publications, and announcing it like it's a big deal, we figured it might be nice to remind people that some (actually, er, most) online publications are still doing just fine publishing for free. But, if they can get news out of making life worse for their readers and community, why can't we make some news out of the fact that we like to treat our community right, and let them read our stuff for free, and freely share it and talk about it? I don't see how making life more difficult for readers, limiting them, demanding that they pay and letting them do less in terms of sharing the content will do much to make people more interested in the site. As for the claims that the Globe & Mail is struggling, as Globe alum Mathew Ingram points out, perhaps they shouldn't be building new office space...