As expected, the UK government has published its Draft Communications Bill (pdf) -- better known as the "snooper's charter," since it requires ISPs to record key information about every email sent and Web site visited by UK citizens, and mobile phone companies to log all their calls (landline information is already recorded).

Since this was only released a few hours ago, people are still trawling through it to find out what delights it holds, but an eagle-eyed David Meyer has already spotted something rather extraordinary: the UK government seems to be proposing to log not just every IP packet, but every physical packet -- and letter, and postcard -- too.

That's thanks to Section 25 of the Draft, which states:

Part 1 [the main requirements to log communications data] applies to public postal operators and public postal services as it applies to telecommunications operators and telecommunications services.

And if you were wondering what "communications data" means when applied to letters and postcards, it includes:

postal data comprised in or attached to a communication (whether by the sender or otherwise) for the purposes of a postal service by means of which it is being or may be transmitted

Letters, telephone calls, email and the Web -- this is a level of total surveillance that countries like China, North Korea or Iran can only dream of. What remains unclear is how the UK government will try to gather this incredible flood of information, and whether it can access it in real time. Here's what the site Privacy International thinks will happen:

The government today published a draft version of a bill that, if signed into law in its current form, would force Internet Service Providers (ISPs) and mobile phone network providers in Britain to install 'black boxes' in order to collect and store information on everyone's internet and phone activity, and give the police the ability to self-authorise access to this information.

That article points out that two important questions on the Internet side of things remain unanswered:

However, the Home Office failed to explain whether or not companies like Facebook, Google and Twitter will be brought under the Regulation of Investigatory Powers Act (RIPA), and how they intend to deal with HTTPS encryption.

When an official was pressed on that last point, he gave a rather disturbing reply:

At this morning's Home Office briefing, Director of the Office for Security and Counter-Terrorism Charles Farr was asked about how the black box technology would handle HTTPS encryption. His only response was: "It will."

This is going to get very interesting.

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The Space Shuttle program is retired, but we still have the Soyuz (and maybe a mysterious secret mini-shuttle) to get people into space. On top of that, though, the private space industry is starting to kick in with more and more ambitious plans to offer rides into space -- or at least to the edge of space. Here are just a few more examples of these private efforts.

• Travel agents are already booking seats on Virgin Galactic -- for $200,000 (including a $20,000 upfront deposit). Over 450 passengers have already bought tickets. [url]
• Mars One is aiming for human settlement on our neighboring planet around 2023. It'll be a one-way trip, so plan accordingly. [url]
• The Hermes spacecraft received some Kickstarter funding to build its next test rocket. It's still far from developing a rocket system ready for humans, but it's still cool to see more engineers trying to re-invent space travel. [url]
• Alliant Techsystems (aka ATK), which manufactured the Space Shuttle's booster rockets, is developing a rocket system it calls Liberty. This Liberty rocket system is designed to hold 7 passengers and reach destinations like the International Space Station. [url]
• To discover more links on space exploration, check out what's floating around in StumbleUpon universe. [url]  

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

We've talked about just how ridiculous US policies towards highly skilled immigrants and entrepreneurs are for years. We're driving away the very people who can help create new companies and new jobs within our economy, and handing them, gift-wrapped, to other countries. And those other countries are increasingly aware of the massive opportunity the US is vehemently ignoring, and those other countries are becoming increasingly welcome to foreign high-skilled workers and entrepreneurs. The Economist has a good article highlighting just how backwards US policies on entrepreneur immigration are, especially compared to countries like the UK, Australia, Canada and New Zealand, who are very welcoming towards foreign nationals who want to start companies in their countries. And then there are upstarts like Chile, who go so far as to simply hand large sums of cash to startups that want to set up shop there.

But the US keeps pushing such people away.

The article includes an example -- one of hundreds we've seen -- of entrepreneurs trying to setup a new company and create jobs in the US... only to be forced to do the same thing in another country (in this case, Canada). We're actively pushing away the job creators at a time when our economy needs jobs.

And, of course, while sometimes these individuals go to these other welcoming countries, some also just head back home. As the article notes, China has actually become pretty aggressive in offering some highly skilled workers who come back from trying to work in the US "not only free homes but also cash to buy furniture."

Honestly, it's pretty clear from the Economist piece that whoever wrote it is incredulous that the US would have such policies in place when they clearly harm its own interests. And, of course, the truly amazing thing is that over the years, the various efforts to fix these problems and welcome in skilled immigrants who create jobs always seem to get shot down. As we recently mentioned, the Startup Act 2.0 has been introduced, and even though it offers some pretty simple ways to let in a few more job creators, it's not clear that there's enough momentum to push it through (though, you can help change that by telling your elected officials to pass the bill). There are many different forms of protectionism -- and almost none of them are helpful. But it's perhaps worst of all when you're protecting yourself from job creators.

To hear folks in Hollywood talk about it, the US's indictment and prosecution of Megaupload are a done deal. Without any actual trial, people have decided that the company is clearly 100% evil and guilty. Yet, as we keep noting, the details of the indictment and prosecution keep turning up significant errors on the part of the US, as well as questions about the legality of what the US did. And plenty of people who really understand this stuff deeply are speaking out in agreement. The latest is a former federal judge, Abraham David Sofaer, who found the whole situation so troubling that he's helping the EFF -- for free -- with its efforts to get Megaupload users' data back.

Having looked over the details of the case, he's speaking out against it. According to an interview he did with David Kravets at Wired:

“It’s really quite outrageous, frankly... I was thinking the government hadn’t learned to be discreet in its conduct in the digital world. This is a perfect example on how they are failing to apply traditional standards in the new context.”

When it comes to the government's insistence that users can't get their data back, Sofaer is quite troubled:

“That’s a dangerous road,” Sofaer said.

He suggested that the government hasn’t quite caught up to the digital age. He doubts the government would take the same position with a bank it seized.

“Of course they would help customers get back their deposits,” he said. “But think about this new world. You can see very clearly that the government is acting in a manner that is indiscriminate.”

I can't wait to see our usual critics explain how this former federal judge is just a pirate apologist who doesn't understand the law.

Let's kick this off with an obligatory link to WillUsingThePrefixCyberMakeMeLookLikeAnIdiot.com. As Senator Harry Reid has declared that the Senate absolutely will vote on a cybersecurity bill soon, despite significant questions about the bills under consideration and about whether such a bill is really needed at all, Jim Harper points out the politics behind all of this (while also pointing out the ridiculousness of the overuse of the prefix "cyber" by coining "cyberbellicosity.")

First off, there's the fact that, for all the vague talks of "threats," the only real evidence of "cyberattacks" to date all seem to point to the US. So, if we're worried about attacks directed back at us, perhaps we shouldn't have kicked off the effort by showing the rest of the world how it's done. And, no, Senator Feinstein, the problem isn't the leak, but the action. As Harper points out:

The likelihood of attacks having extraordinary consequences is low. This talk of “cyberwar” and “cyberterror” is the ugly poetry of budget-building in Washington, D.C. But watch out for U.S. cyberbellicosity coming home to roost. The threat environment is developing in response to U.S. aggression.

This parallels the United States’ use of nuclear weapons, which made “the bomb” (Dmitri) an essential tool of world power. Rightly or wrongly, the United States’ use of the bomb spurred the nuclear arms race and triggered nuclear proliferation challenges that continue today. (To repeat: Cyberattacks can have nothing like the consequence of nuclear weapons.)

Of course, the "urgency" that we keep hearing about is almost certainly political. Should some attack actually happen, no politician wants to give his or her opponents the opportunity to point to their failure to pass "do something!" cybersecurity legislation during a campaign. As Harper points out, the real fear from politicians isn't a cyberattack, it's a political attack:

Senator Reid has gone hook, line, and sinker for the “cyber-9/11″ idea, of course. Like all politicians, his primary job is not to set appropriate cybersecurity policies but to re-elect himself and members of his party. The tiniest risk of a cyberattack making headlines to use against his party justifies expending taxpayer dollars, privacy, and digital liberties. This it not to prevent “cyber” attack. It is to prevent political attack.

He then goes on to highlight a bunch of former government officials who sent a letter to Senate leaders urging them to pass cybersecurity legislation "as soon as possible" since it's "critically necessary to protect our national and economic security." Of course, what the signatories of that letter really mean is that they want to protect their own "economic security." Every one of them has moved to the private sector and is in a position to profit greatly from a freakout over cybersecurity...

And yes, in answer to the URL I mentioned at the beginning, using cyber does, in fact, make you look like an idiot in most cases. But for the amount of profit and spying power at stake? It doesn't seem like many in DC care that much.

Following some filings by Megaupload's lawyers in the US, the US Attorneys office has shot back, asking the court to deny all of the company's requests. And, it goes even further than that: seeking to deny Megaupload the ability to use the topnotch lawyers it hired. This part is not new. Back in April, it sought to block Megaupload from hiring Andrew Schapiro from Quinn Emanuel, arguing that there's a "conflict of interest" because the DOJ argues that YouTube is a "victim" of Megaupload and could be a witness -- and Schapiro has represented and continues to represent YouTube in the Viacom case. Quinn Emanuel has also done some work for Hollywood. The thing is, big law firms like Quin Emanuel have a pretty detailed process to check for conflicts of interest, and assuming that Quinn Emanuel and its clients are okay with things, then how is it the government's place to complain other than out of some sort of childish desire to deny Megaupload the best legal representation it can find. The more we view the DOJ's actions in this and related cases, the more it becomes clear that they have a tendency to act like a bunch of little playschool children in these sorts of legal fights.

Separately, the government tries to reject the argument that Megaupload has made -- and which a New Zealand US judge has found compelling -- that for criminal proceeding to take place against a foreign company, that company needs to be served. However, since the law only allows for service on US addresses, Megaupload reasonably argues that it cannot be served (note: this only applies to the company as a defendant -- the individuals who were charged separately are a different issue). But the government argues this is crazy talk, and it's main argument is basically just to claim that such a reading of the law is absurd... and to say that it's fine to serve company officials once they're extradited to the US. In other words: "we're the US, bitch, and as long as we can extradite people here, we can sue their companies too, so shut up." The sense of entitlement in being able to bring criminal charges against foreign entities is astounding.

The US Attorneys also play some games with the filing itself, claiming that Megaupload cannot make such filings until the defendants appear in the court. In fact, they claim that by fighting extradition, Megauploads' execs count as "fugitives" from the law, and thus cannot file motions with the court. Of course, that's ridiculous. The whole point of filing these motions is to help show that the entire case is frivolous and that the extradition requests are excessive and unnecessary. For the US to respond to that by saying that such arguments can only be made after extradition is an argument that makes no sense. It's basically saying that they can only fight extradition after they've been extradited.

All in all, the arguments here are similar to the DOJ's arguments against letting Megaupload users get back their data. Basically, the DOJ was insanely over aggressive in shutting down Megaupload, creating a huge mess... Now, it's lashing out at anyone who seeks to fix a small piece of the mess, basically by saying that the mess has nothing to do with the DOJ's own actions.

Honestly, from the outside looking in, it sure looks like the DOJ is realizing just how weak its case is here, and is simply lashing out at anyone it can.

We had already suggested that Funnyjunk's lawyer, Charles Carreon, should stop digging after finding himself in quite the internet hole for threatening Matthew Inman, creator of The Oatmeal, over a scathing page mocking Funnyjunk. Inman's response was over the top, but was also pretty clearly protected free speech, including either factual statements or opinion. You would think that Carreon, who styles himself as a protector of the First Amendment, would recognize that. Yet, in response, Carreon has said that he was going to seek to shut down Inman's fundraiser for the American Cancer Society and National Wildlife Foundation.

And, now, it appears that Carreon is continuing to act petulantly after the internet suggested he stop digging. Lots of people pointed out that Carreon pulled down the "contact" page on his own website after the original story went viral, but as some have noticed he's replaced it with a "temporarily unavailable" page that accuses Inman of instigating "security attacks":
If you can't read it, it says:

Due to security attacks instigated by Matt Inman, this function has been temporarily disabled.

Really? Security attacks? And "instigated by Matt Inman"? Inman didn't instigate security attacks. He pointed out why he felt that your poorly thought out legal threat letter was, in fact, poorly thought out -- and he turned that into a force for good by setting up a fundraiser for some very popular charities (which, again, you tried to shut down). Considering how freely Carreon tossed around the threat of "defamation" claims against Inman for what he wrote about Funnyjunk, you'd think that he would be more careful before accusing Inman of instigating "security attacks" on his own website. I doubt Inman would fire back with a defamation lawsuit -- and you could argue which side of the defamation line this claim falls on -- but if we were to weigh the two, it sure seems like this statement from Carreon is a lot closer to defamation than anything that Inman said about Funnyjunk.

By the way, it's worth pointing out that the top blog post on Carreon's site is actually all about Chris Dodd's bad reaction to the internet rising up against him in the SOPA/PIPA fight. Carreon might want to read the first sentence of that post and figure out which character he's playing in this drama (or is it farce?):

The kittens kicked ass on Hollywood, and Hollywood, like every frustrated bully, is sounding like a sore loser.

Over the weekend, the NY Times profiled the fact that Sweden hands its official @Sweden twitter account over to a different citizen each week, and lets them control it. It was the brain child of the Swedish Institute and the national tourist agency -- with the idea of showcasing some of Sweden's quirkiness. And, from the sound of the NY Times article, it had been mostly working. Some of the tweets were a bit edgy or weird, but nothing too crazy. Until now. Right after the article came out, Sweden handed the account over to a woman named Sonja Abrahamsson -- who proceeded to surprise a lot of people (including many new @Sweden followers, due to the NY Times coverage) with a series of tweets that one could deem offensive to just about anyone -- including ignorant or offensive statements and questions about Jews, gays, Africans, those with downs syndrome, those with AIDS and a variety of other people/groups as well. An example:
This has, not surprisingly, received a fair bit of media attention, with people questioning what happened.

Of course, the most obvious answer is that Sweden handed its Twitter account over to a troll. The topic choices are so troll-worthy that it's hard to believe that the person behind the account is genuinely saying these things. It seems quite clear that it's standard troll behavior: say stupid stuff to get people to react -- and tons of people are feeding the troll in response. The really stunning part, of course, is that the folks who manage the account didn't realize this ahead of time. As multiple people have pointed out, Sonja's own blog has plenty of evidence of similar trolling activities on a smaller scale.

And, perhaps, the Swedish tourist board actually did this on purpose. A spokesperson defended giving Sonja control of the account:

“It’s very important for us to let everyone take a unique viewpoint,” said Tommy Sollen, Social Media Manager at VisitSweden, in a phone interview. “Every one of our curators is there with a different perspective.” ....

“Some of them have been talking about music, some of them have been talking about food,” he said. “Sonja is more focused on her own brand of humor and asking probing questions.”

So they seem to recognize that trolling is a "brand of humor." And I'm surprised that no one has yet mentioned the fact that the NY Times article was sent from the town of Trollhattan, Sweden. It's like they were born to troll...

Of course, if Sweden is going to let @Sweden be trolled, it was only a matter of time until Stephen Colbert asked for control of the account, and urged the Colbert Nation to convince the Swedish tourism bureau to allow non-Swedes to control the account -- something they've said they might consider "in the future." Oh, and while having a troll be your official representation online for a week may, at first pass, seem like a bad thing, it is worth noting that it looks like the number of people following @Sweden has more than doubled since the NY Times article came out -- with much of the increase happening in just the last day or so after the whole trolling thing started to get more attention.

For years, we've talked about just how preposterous it is that various brands claim filmmakers and other content creators can't show their logos without permission. There are even lawyers who specialize in watching movies to make sure no brands appear without a license. Seriously. And this trademark madness extends to other areas as well. A few years ago, we wrote about a crazy case, involving the University of Alabama suing an artist named Daniel Moore (a huge fan of the school's football team) who regularly did paintings of great moments in the football team's history. The case was slightly complicated by the fact that there had been a licensing relationship between the University and Moore at various times, but eventually that went away and the legal fight was over whether Moore could paint depictions of football games without permission. Among the arguments the University made was one that said the very uniforms the players wore were covered by trademark, and depicting them without a license (or, hell, without a registered trademark symbol) was not to be allowed. After many years of fighting through the courts, a district court in 2009 tried to split the baby by saying that Moore could create and sell paintings... but not merchandise (mugs, calendars, etc.) based on those paintings.

This week, the ruling in the appeal of that case, in the 11th Circuit, was finally handed down -- and it's a good one. The court seems to recognize the basic First Amendment issues at play and takes a pretty broad view of how the use of trademarks in artistic works should be perfectly legal. The court relies heavily on Rogers v. Grimaldi -- which is more focused on publicity rights, but has a Lanham Act component as well. In the end, this ruling basically says the First Amendment issue trumps all, and the "likelihood of confusion" here is minimal as well, but takes a back seat to the First Amendment concerns:

In this case, we readily conclude that Moore’s paintings, prints, and calendars are protected under the Rogers test. The depiction of the University’s uniforms in the content of these items is artistically relevant to the expressive underlying works because the uniforms’ colors and designs are needed for a realistic portrayal of famous scenes from Alabama football history. Also there is no evidence that Moore ever marketed an unlicensed item as “endorsed” or “sponsored” by the University, or otherwise explicitly stated that such items were affiliated with the University. Moore’s paintings, prints, and calendars very clearly are embodiments of artistic expression, and are entitled to full First Amendment protection. The extent of his use of the University’s trademarks is their mere inclusion (their necessary inclusion) in the body of the image which Moore creates to memorialize and enhance a particular play or event in the University’s football history. Even if “some members of the public would draw the incorrect inference that [the University] had some involvement with [Moore’s paintings, prints, and calendars,] . . . that risk of misunderstanding, not engendered by any overt [or in this case even implicit] claim . . . is so outweighed by the interest in artistic expression as to preclude” any violation of the Lanham Act. Rogers, 875 F.2d at 1001.

That part is focused on the paintings. Unfortunately, the ruling on the merchandise side is still a little complex. The court rejects the summary judgment in favor of the University, but basically says it's an issue that needs to go to trial, rather than be resolved by summary judgment. Even more unfortunately, the court notes that Moore has "waived" his First Amendment and fair use claims for this part of the dispute. That seems like a bad decision by Moore, but there appears to be little he can do about it at this point. Moore chose to focus on a different argument, suggesting that the fact that he holds the copyright in the paintings trumps the trademark issue -- an argument the court basically tosses aside. Instead, the remaining issue is if the University effectively gave tacit approval to Moore to sell those items under the theory of "acquiescence." That discussion has little to do with the bigger questions.

Overall, though, the first part of this ruling is quite useful in showing that the First Amendment trumps trademark in artistic works in many cases, and hopefully will be relied on widely to stop ridiculous assertions about things like trademarks showing up in movies and other artwork without getting permission.

For quite some time now, we've been reporting on how the big television players were so upset that Hulu and Netflix were dragging them kicking and screaming into the 21st century (even though they owned Hulu) that they were working on plans to kill off both services -- or at least cripple them. Mostly, what this goes back to is the inevitable fact that the internet is going to subsume television. But, these days, there's so much money in TV, thanks to the ability to be a gatekeeper, that all efforts are on holding back the internet for as long as is humanly possible. Want to know why HBO refuses to offer a standalone internet streaming option? It's because of the monopolistic power of cable.

This has all been pretty obvious for years, but the Justice Department has finally begun investigating Comcast/NBC Universal and Time Warner Cable to see if any of their actions with regards to Netflix and Hulu trip the antitrust wire. In particular, they seem focused on whether or not tiered broadband plans are actually designed to keep people from using competing online services, and preventing people from cord cutting. For Comcast, the risk may be much higher. As part of the merger with NBC Universal, it made certain promises to the government concerning how it treats online services. If it's not living up to those promises, it could mean trouble.

Unlike some other antitrust investigations, this is one where you can make a strong case that these companies are making life worse for consumers, by using their natural monopoly positions to keep prices artificially high. That said, I have little faith that the DOJ will get things right with the investigation. I think it's likely that the natural economic pressure of cord cutting (which, despite denials from Hollywood and the cable industry, is very very real) is going to have much more of an impact on the eventual massive reconfiguration of the television market than any antitrust lawsuit.

This one is a tad old, but it is certainly worth sharing. A while back, Chuck Norris' Enemy (deceased) sent in this great interview with Steve Smith, the creative mind and star of the Red Green Show. This show, for those who are not familiar with it, is the amalgamation of comedy, handyman, and personal counseling all wrapped up in duct tape and presented by the backwoods host Red Green. Just to give you a taste of what this show has to offer, here is one of my favorite skits from the show.



In this interview, Steve describes a few interesting things about what has happened to the show in the five years since it was taken off the air.

Q: It’s been more than five years since the show signed off, so how is the fan base growing?

A: Two things: No. 1 YouTube. I mean fans are putting clips up there, and we are getting response, and we are getting new viewers that have never seen the show, only the clips on YouTube. And then we started putting them up ourselves. We are putting all the episodes up. We have about 120 episodes on YouTube now. Soon we will have all 300 up.

The second one is Facebook. We are almost at 500,000 followers on Facebook, so we have this line of communication. So between those two, I’d say brand awareness is more than ever."

What I find interesting here is that Steve has embraced the full potential of YouTube. Not only does he upload videos, he actually allows and encourages the uploading of clips by users. This line of thought is something that is completely absent from many others in the television and movie industries. They would rather control what is shared and what people are allowed to watch. Unfortunately for them, that attitude only results in a stale online presence. The ability for new fans to find your show and share it is key to surviving in this internet age.

Next we have Steve contemplating the future of the show.

Q: Will you ever bring the character back to television?

A: I really doubt it. For one thing, I’m really preferring the Internet to television these days. I like having direct contact with the fans rather than having to go through some middle man or interpreter. If I was to do anything, I would probably do it on the Internet rather than on TV.

Q: Have you considered a YouTube series or something similar?

A: Yeah. We’ve got some people that we’re talking to now that might want to do something like that, and that would interest me as opposed to the whole mess of a television series where you have to worry about the network folks. We don’t necessarily have overlapping agendas, and the older I get the harder it gets."

Many skeptics of online business models would probably laugh at Steve over these responses. Those skeptics claim that the only way to succeed is to go through old and dying channels of television and theaters. Sadly, these same skeptics also would gloss over the fact that the Red Green Show has had more success in the five years it has been off the air than the entire time it was on air.

Another key point to take from this interview is the importance of connecting with fans. Much like many artists before him, Steve has recognized that and has placed the value of that connection far higher than any deal that a gatekeeper would offer. Why would Steve abandon what he has accomplished in the last five years to go back to being relegated to 10:30 pm Friday night on public television? Wouldn't you rather give your fans 24 hour access to your content and in turn have 24 hour access to your fans?

It continues to amaze me just how much people can't get their heads around the rather basic concept of fair use (or, as some countries prefer, fair dealing). Howard Knopf has a blog post, talking about a Canadian university that, for reasons that make no sense, has included in its "copyright guidelines" the claim that it pays an annual fee to Canadian copyright collection society Access Copyright (currently involved in a bit of a controversy concerning its fees) to cover "fair dealing" copying.

However, as Knopf writes, this makes no sense:

This, of course, reflects a serious misunderstanding. If the copying is “fair dealing”, it is unnecessary to pay Access Copyright or anyone else for copying it.

The whole point of fair use/fair dealing is that it allows you to make use of works without permission or payment.

And yet it's very, very difficult for some people to comprehend this. For example, we were recently sent an email from someone who didn't like that we quoted a story that he had written, first saying that it did not meet his definition of fair use. I wrote back (nicely, I thought) explaining why our use was fair (we only used a small portion of the text, we added significant commentary on top of it, etc.). This person wrote back saying that he was very upset that we failed to "negotiate" with him, and until we came to a mutually agreed upon definition of fair use, we were no longer "permitted" to quote anything he has written.

I'm really not quite sure how to respond to such people, because explaining to them what fair use is seems to only make them more upset. The whole point of fair use is that we don't need permission. We certainly don't need to come to a mutually agreed upon definition of what that person considers fair use (since he outright rejected my definition, despite my offer to send citations showing that my definition is the legal one). Once you're talking about permission or negotiating, you're no longer talking about fair use.

Of course, in this case, there is a fairly simple solution: even though we legally can, I've instructed everyone here to simply never use this site as a source again, since the site's owner apparently would prefer not to have our traffic. That's got nothing to do with "fair use" however...