Eben Moglen has been battling to defend key digital rights for the last two decades. A lawyer by training, he helped Phil Zimmerman fight off the US government's attack on the use of the Pretty Good Privacy encryption program in the early 1990s, in what became known as the Crypto Wars. That brought him to the attention of Richard Stallman, founder of the GNU project, and together they produced version 3 of the GNU GPL, finally released after 12 years' work in 2006.

Today, he's Professor of Law at Columbia Law School, Founding Director of the Software Freedom Law Center and the motive force behind the FreedomBox project to produce a distributed communication system, including social networking that is fully under the user's control.

He's also a great orator, as he demonstrated once again at the F2C: Freedom to Connect conference last week. Introducing the discussion that followed Moglen's talk, Doc Searls said: "that was not just one of the best speeches I've heard, it's one of the most important," and said that it felt like an "I have a dream" moment.

Moglen's keynote was entitled "Innovation under austerity", and tackled a range of big themes: the effects of disintermediation brought about by the Internet; the global financial crisis; the imposition of austerity; the increasing levels of youth unemployment in parts of the Eurozone; and the desperate need for innovative ideas to get us out of this mess. He tied all these together by observing that the multi-trillion dollar economy created by e-commerce had been made possible by innovation born of the passion and curiosity of mostly young people hacking on open systems. As Moglen said, transcribed here by Stephen Bloch:

That curiosity of young people could be harnessed because all of the computing devices in ordinary day-to-day use were hackable, and so young people could actually hack on what everybody used. That made it possible for innovation to occur where it can occur without friction, which is at the bottom of the pyramid of capital. Hundreds of thousands of young people around the world hacking on laptops, hacking on servers, hacking on general purpose hardware available to allow them to scratch their individual itches -- technical, career, and just plain ludic itches ("I wanna do this; it would be neat") -- which is the primary source of the innovation which drove all of the world's great economic expansion in the past ten years. The way innovation really happens is that you provide young people with opportunities to create on an infrastructure which allows them to hack the real world and share the results.

From this central observation, Moglen noted that such open innovation offered a possible way out of the current economic crisis, since, uniquely, it thrived in conditions of austerity (think of Linus Torvalds writing the Linux kernel in his Helsinki bedroom on a PC bought partly thanks to a student loan from the Finnish government.)

Where the banking institutions of our day have failed spectacularly, and shown themselves to be forces for wealth destruction, open innovation as practised by free software and Wikipedia and all the other collaborative endeavors around the world, has been quietly creating real value on an unprecedented scale and in an extremely short time. Moglen suggested that open innovation was fuelled by the energy of the young -- precisely the part of society that is paying the price for the older generation's mistakes. To help pull ourselves out of the current crisis, he urged the world to tap into that youthful potential by making knowledge as widely available as possible -- through open content -- and by providing young people with open tools to explore and invent with.

He concluded by warning that the rise of the digital behemoths like Apple and Facebook were exactly the wrong solution, offering closed hardware and something just as bad on the software side. As Moglen put it:

The browser made the Web very easy to read. We did not make the Web easy to write. So a little thug in a hooded sweatshirt made the Web easy to write, and created a man-in-the-middle attack on human civilization.

The whole speech is pretty much at that level of sharp analysis combined with sharp-tongued wit. Watch it below -- it lasts around 45 mniutes -- and decide for yourself whether this will go down in history as one of the key moments of the early digital age.

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To promote his new pop-Luddite book Digital Vertigo—named, I assume, for the slight feeling of dizziness that signals the onset of old age—Andrew Keen has written an opinion column for CNN about the disastrous consequences of social media for the human condition. Having spent a day to process his words, I'm left with one inescapable conclusion: Keen needs to take a broader view of history. I call this "inescapable" because it holds true whether or not you agree with him. If you reject his premise that them kids aint right, then you probably think he needs to look at all the many technological and societal revolutions throughout the millennia and the shortsighted people who have railed against them, only to be proven wrong. But what if you agree with that premise, and like Keen, you fear that Facebook will "Zuck up" the species, or at least take it sweetly in the hayloft then sell the videos to Zynga?

Then I think you would still have to conclude that he lacks perspective, because he simply doesn't go far enough. His main concern, which he backs up with the quacking noises words of Techdirt's good friend Sherry Turkle, is that social media is causing people to build their identities based on what people think of them rather than magically conjuring up an identity from within—and that this is a tragedy for humanity:

But this shift to a Facebook world of incessant "friending," Professor Turkle correctly warns us, is a "seductive fantasy" which is weakening us both as individuals and as a society. The problem, she explains, is that a "capacity for solitude is what nurtures great relationships." But in today's always-on social media world, our solitude has been replaced by incessant online updates, which both weaken our sense of self and our ability to create genuine friendships.

...

What it means, of course, is that we are creating a world in which our sense of identity, of who we actually are, is defined by what others think of us. Social media's ubiquity means that we are losing that most precious of human things -- our sense of self . Our devices are always on; our "Timeline" (Facebook's product which greedily attempts to capture our entire life narrative) is there for everyone to see; we are living in public on a radically transparent global network that, by 2020, will be fed by 50 billion intelligent devices carried by the majority of people on the planet.

This is disappointingly short-sighted. How could Keen reach this conclusion without noticing that the telephone also created more intercommunication and immediacy within communities, and thus should be rejected as well? Or that earlier still, international postage did us a great disservice by inundating our identities with annoying perspectives from around the world? If I am to follow someone backwards into this brave old world of isolation, I want a true leader who knows how to go big or go home (and "home" should be like, a cave, or something). In fact, I can't think of a single instant in the history of human civilization where members of a community have not largely defined their identity and value based on the standards and demands of that community. I'm beginning to suspect that farming may be to blame—or maybe cave painting? Frankly I'm not sure why we spend so much time coming up with words to express our thoughts and get feedback from others, violating the sanctity of our identities by tempering them with a variety of viewpoints, when all we really need are hunting commands. So why isn't Keen championing that cause?

Or maybe it's not history Keen is lacking—maybe it's philosophy. After all, there's a simple solution to his problem: solipsism. Wasn't it Descartes' first principle that the self is the only thing one can be sure exists? And someone who hates progress so much should never need more than one principle. If we just accept that nobody else is real, then it won't bother us when they tweet photos of their breakfast anymore. Ah, but I guess then we wouldn't get the other benefits Keen mentions:

But remember, the less we publicly announce about ourselves, the more mysterious and thus the more interesting our private selves become.

Wait, now I'm confused. I thought the whole idea was to be less narcissistic, and not base our identities on the opinions of others. That sure sounds like a high-school-level attempt to cultivate a public identity to me, but since I've now decided that neither Keen nor anyone reading this actually exists, I'll let it pass and focus on building my self-esteem by beating myself at Words With Friends, which is way more fun when you renounce your friends. Still, I expect more from figments of my imagination, and I hope Keen will realize that he's only scratched the surface of the vile threat to our humanity that "community" represents.

Here's the final excerpt from our Techdirt Book Club selection for May, Reclaiming Fair Use by Patricia Aufderheide and Peter Jaszi. If you want to see the first excerpt, the second excerpt and the third excerpt go check them out.

Also, Patricia will be joining us for a live Q&A discussion session about the book on Friday, June 8th at 1pm PT/4pm ET. If you have some initial questions, you can post them below or on the Step 2 discussion page, and we'll try to incorporate them into the Q&A.

Myths and Realities about Fair Use

MYTH: Fair Use is only valid when it is non-commercial.

REALITY: Fair use is designed to expand the range of cultural production, not just the range of non-commercial cultural production. Almost all the occasional litigation on fair use, which has determined this legal trend of interpretation, has been over commercial uses. (Generally lawsuits aren't begun if there is no money to be gained.) Fair uses can be made of copyrighted material in any commercial context, so long as the “four factors” of consideration tilt toward the value of new contributions to culture against the cost to current owners. Currently the simplest calculation, the one preferred by the courts, is to find transformation (reuse for a different purpose), and to make sure that only as much of the original has been used as is necessary for the transformation; this is best done with a justification for the habits and practices of a particular creative or user community.

MYTH: Any non-commercial use is fair.

REALITY: Who's it hurting, right? That's a common argument, especially among vidders, remixers, and other creators in the online video environment, but the law doesn't in fact exempt non-commercial uses. The law does privilege such uses in some cases, but you will unfortunately today be in a grey zone if you lean exclusively on the fact that you're not selling your work. That's especially true in online situations, where you may not be making money off your work but somebody else is—usually an advertiser placing ads on a site, or a data miner. (There is no legal definition of “non-commercial.”) Besides, giving work away that contains valuable pieces of other people’s work can indeed hurt someone else’s pocketbook. If you have a legitimate fair use claim, that pocketbook problem can be overridden (depending on how severe it is). Simply not making money does not give you a fair use pass.

MYTH: Fair use is always valid if you're using it in an educational context, and especially within a classroom.

REALITY: Being a good guy is not necessarily enough. Educational uses have their own special exemptions, but fair use in any educational context will have to abide by the same logic as in other contexts. But because fair use analysis is always done, implicitly or explicitly, within the context of a community of practice, you can refer to the mission and needs of your field. Educational contexts provide some very easy justifications for transformation (such as that students are analyzing the content). Educators need to pay particular attention to their claims to fair use if they are using commercial materials explicitly designed for their educational environment. In that case, an educator's use might not be transformative. Sometimes codes of best practices apply; for instance, media literacy teachers can consult the Code of Best Practices in Fair Use for Media Literacy Education (centerforsocialmedia.org/fair-use/best-practices/media-literacy).

MYTH: Fair use is only about criticism and commentary, like parody for example.

REALITY: Criticism, commentary, satire and parody are all great examples of ways in which copyrighted material is reused for a different purpose than for its original market, in the process of creating more culture. (How does satire differ from parody? They are closely related. Parody holds up to usually-funny commentary a particular work. Satire pokes usually ironic fun at anything including behavior.) But they are not the only kinds of activities that qualify as transformative fair use. Pastiche without a specific point to make—a collage or mashup--can also be a fair use. So might quotation for discussion--and much more.

MYTH: Fair use is “the right to hire a lawyer.”

REALITY: In fact, fair use is no vaguer or unclear than other rights of free expression. Like with questions of libel, indecency or obscenity, there are clear areas of comfort and safety, marginal or risky areas, and troublesome areas. Most people most of the time know where they are. Your greatest comfort is in knowing that your peers in a community of practice have already agreed upon standards of interpretation. Many people have taken the comment of legal scholar Lawrence Lessig, made at the beginning of the 21st century, that “fair use is only the right to hire a lawyer” at face value and repeated it many times since. But Lessig made that remark before the beginning of the current fair use movement, which has greatly clarified safe interpretations of fair use for many communities. Indeed, he made that before he himself founded the Fair Use Project at Stanford, which encourages wider interpretation of fair use.

MYTH: Fair use needs a really good “test case” in the courts, to set precedent.

REALITY: There are several reasons why we shouldn’t wait for litigation to improve our access to fair use. First, fair use is only occasionally litigated; this is particularly true now, since fair use is regarded with such favor by judges. Copyright holders with good lawyers understand that any greater record of the useability of fair use is not good for their side. Second, any particular lawsuit may be an outlier in any direction to a trend. Third, when you initiate a lawsuit, much can happen that confuses or changes the story, muddying the judgment you wanted to get. For instance, the artist Shepard Fairey seemed to have a very clear fair use right to use a photograph of Barack Obama for a poster. But during preparations for the trial, he admitted lying about the photograph he used, creating great distrust and prejudicing his case. Far better than waiting for a definitive “test case” is establishing clear standards of interpretation. Such standards can be highly useful in any ensuing litigation.

MYTH: Fair use is too dangerous; even if you win a lawsuit, your life and finances could be ruined.

REALITY This is a conclusion that is drawn from two common but unfortunate practices: looking only at lawsuits, not at practice; and lumping together all kinds of intellectual property conflicts. If you only look at lawsuits, you will only see danger. If you look at lawsuits in context, you will see them as the very occasional and circumscribed circumstance in a wide sea of perfectly legal and uncontested practice. In reality, people are employing fair use casually and comfortably every single day across the nation, often without thinking about it, and get no trouble at all. They are in the safe-harbor areas of fair use. You can understand what those are as well. In the rare event of a copyright lawsuit, defendants have a solid phalanx of pro-bono lawyers who are eager to litigate on fair use, including Stanford Fair Use Project, the ACLU, EFF, and some intellectual property clinics. Courts strongly encourage settlement and discourage trials. Anyone who proceeds with litigation has rejected plenty of opportunities to settle. If defendants decide they do not want to proceed, they will get plenty of opportunities to settle for relatively small costs. But the most important thing to remember is that lawsuits are extremely rare, the exception to the rule.

People frequently confuse one kind of danger with another. For instance, the RIAA has sued a clutch of average-citizen downloaders. The RIAA originally attempted to create enormous publicity and public awareness about the illegality of downloading copyrighted material available for sale by a few strategic lawsuits. These lawsuits proved entirely useless in discouraging downloading, while racking up enormous legal bills for the RIAA and others. But the RIAA's case against downloaders bore no relation to any fair uses. Downloaders were simply accessing material they could buy for free, typically to use in exactly the way it was being marketed. The music industry may be backward- looking, but its legal case was technically sound. It was not grounded in fair use arguments. Fair users do not need to be frightened of RIAA lawsuits.

MYTH: Fair use is just a defense, not a right.

REALITY: Fair use is in fact a right that comes into play once someone accuses you of infringement. At that point, you would respond by saying that you had a right to use that material. Until then, everyone is simply going along minding their own business, creating culture. The right of defense occurs in other contexts as well. For instance, if you are physically attacked, you have the right of self-defense. This right never comes into play until you are both attacked and someone accuses you of hurting them. Then you will invoke your right of self-defense. The fact that fair use is a defense does not make it any less of a right.

MYTH: Fair use is just an interpretation, not part of the law.

REALITY: Fair use is neither new nor a mere interpretation. A 150-year-old feature of the law (and widely exercised before that, without being explicitly invoked), it is a key element of a policy dedicated to promoting culture. Fair use is an essential tool for us to be able to exercise our First Amendment rights.

MYTH: I can't use fair use, because the copyright holders would never agree to it.

REALITY: Fair use is a right that you employ simply by accessing material, copying it and incorporating it into your project within an appropriate context. You do not need to get anyone's permission to do that, and you do not even need to let them know that you did it. Some legitimate and uncontested claims of fair use are even made after one or more attempts to license; the attempt to license may even increase one’s case for fair use, if the material is vital to what you are trying to say. Some people like to alert the people whose work they took, as a gesture of respect or homage, and this act of politeness is very often deeply appreciated. Sometimes they may want to alert a vendor or archives holder of their fair use, because they have an ongoing business relationship that involves licensing, they may want to eliminate ambiguity about the use, and they may want to stay on the best terms possible.

The USA has no monopoly on hamburger innovations. Sure, Americans probably eat more burgers than any other country, and we came up with the drive-thru and drive-in processes for burger orders. But the possibilities for burgers have no limits, and here are just a few global developments in the world of burger technology.

• In Germany, McDonald's crowdsourced a few new menu suggestions which were released as actual products for sale over the month of May. The "Pretzelnator" was the first item -- offering folks a ham & cheese sandwich on a pretzel-like bun. [url]
• In Japan, the phrase "have it your way" translates to "put as much bacon as humanly possible on my Whopper, please." Japanese Burger Kings will put 15 slices of bacon on your burger for about 100 yen, and for about 7,000 yen, that's 1,050 slices of bacon on your order. [url]
• Pizza Hut in Dubai has added cute little cheeseburgers to pizza crust. They've also added mini chicken fillets on pizza crusts and cream cheese, too. [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.

When the Association of Universities and Colleges of Canada (AUCC) drafted a terrible deal with the collection society Access Copyright, and then withdrew from their fight before the Copyright Board, the onus fell on the schools themselves to stand up for their rights and reject the ridiculous fees and terms of the agreement. Though they were rushed into expressing their "intent to sign", a number of schools have since walked away and announced plans to manage their own copyright clearance, much as major American universities do, while others have capitulated to the deal. Professor Ariel Katz at the University of Toronto (one of the schools that infamously signed a bad deal with Access Copyright before the AUCC agreement, partially on the advice of a lawyer with close ties to pro-stronger-copyright groups and even Access Copyright itself) has been maintaining the Fair Dealing Hall Of F/Sh/ame to keep track of which schools are fighting and which ones are bowing down.

Several major schools have made the Hall of Fame so far: the universities of B.C., Athabasca, Windsor, Winnipeg, York and New Brunswick all turned down the deal in May. Meanwhile, the universities of Manitoba and Victoria have joined U of T and Western, who signed all the way back in January. McMaster University is also listed as signing, but apparently that remains unconfirmed.

Unfortunately, the real losers here are the smaller colleges across Canada, which don't have the resources to set up copyright clearance offices or to assert their fair dealing rights in the tariff fight at the Copyright Board. In theory, that's why we have both the AUCC and Access Copyright: to streamline the process by negotiating a good model agreement that schools can sign, with a set rate that eliminates the hard work of copyright clearance. But that only works if the AUCC does its job and stands up for the schools, making sure that the deal is fair. That didn't happen. For whatever reason, the AUCC failed to strongly assert the fair dealing rights of schools—rights that were strengthened in a series of recent Supreme Court rulings, and which are about to be even further expanded by the soon-to-pass copyright reform bill, all of which should have resulted in lower fees and looser restrictions for schools. Instead, they agreed to significant rate increases, and bizarre restrictions and fees based on rights that don't even exist under copyright law, such as linking and maintaining a personal research archive.

Hopefully, the schools that have chosen (and are able) to cut their own path continue to do so—and maybe, as they demonstrate that it's possible and work out the kinks of their copyright clearance systems, we will begin to see a shift in attitudes surrounding copyright and education that eventually benefits all of Canada's schools. But for the time being, many are going to have to face the consequences of the AUCC's lackluster performance at the negotiating table and before the Copyright Board.

With a lot of new attention being paid to the Flame malware that was datamining computers around the Middle East, there have been plenty of comparisons to Stuxnet, the famous bit of malware that was targeted at mucking up Iran's nuclear power program. So it's very interesting timing to see the NY Times reveal many of the details behind Stuxnet, including confirming that it was a program driven by the US, with a lot of help from the Israelis. Many, many, many people suspected that already, but it certainly appears that the NYTimes has numerous detailed sources that support this claim.

Perhaps even more interesting, however, is the fact that Stuxnet (which apparently originally infected Iranian nuclear plants via workers using USB keys when they shouldn't) was never supposed to get out into the wild. It was supposed to just sit in the computers at the power plant, confusing the hell out of the Iranians. But, obviously, that didn't happen. Having that info get out into the wild probably killed off the effort much earlier than expected, since it basically explained to the Iranians what was happening.

It's also noteworthy that a source in the article claims that Stuxnet was the first example of using a computer attack to destroy physical items (it made centrifuges work irregularly in ways that could cause them to break). Some have therefore used Stuxnet as "proof" of the cybersecurity threats out there and the misnamed "cyberwar." I'm not sure that's true. Stuxnet still appears to be a rather unique case in terms of a very, very specific target that had some significant vulnerabilities. We hear lots of worries about cybersecurity impacting physical infrastructure -- and I'm sure that those who wish to do harm would love to bring down power grids and airplanes through some form of a cyber attack. But I'm not convinced that the success of Stuxnet is so easily replicable in other such areas. And I don't see how that automatically justifies effectively tossing out all privacy protections.

We've written a bunch about the amazing success of the Amanda Palmer Kickstarter campaign, powered by Amanda's amazing ability to build an army of fans, by connecting with them day after day after day.

The campaign completed last night, with a grand total of $1,192,793 raised from 24,883 fans -- an average of nearly $50 per person. Not bad at all.

Once again, as we saw with Louis CK, this seems to put to rest two key "myths" that we often hear from supporters of the legacy industry business models.

Myth 1: People today just want stuff for free and won't pay. Yet, here, they not only paid, but the average amount paid was a hell of a lot more than a typical album. If you're open, human and awesome and you give people a real reason to buy, they will.

Myth 2: People download illegally and don't pay because they think artists are all rich. While it's true that you'll sometimes hear someone defend file sharing with a claim about "rich" artists, those arguments are few and far between -- and are usually much more directed at a very, very small number of top pop stars, rather than as a defense for more widespread downloading. And, if anything, most of those complaints frequently are more directed at gatekeepers keeping a disproportionate share of any revenue. But here, where Amanda made well over a million dollars -- even if much of it will be spent in getting this album out and related projects/tour going -- her fans were absolutely thrilled at the amount she raised and have been celebrating each and every milestone along the way.

Last night, after the Kickstarter campaign closed, Amanda threw a giant blockparty in NYC (also streamed online), where tons of her fans showed up and they seemed to have quite a fun time:
And I grabbed a quick sampling of tweets about all of this and you see comment after comment after comment from fans celebrating the amount:


In many ways, that first tweet -- which says "she/we did it!" is quite revealing. This was never just about Amanda. This (and many, many other projects by creators who connect with their audience) are about involving the fans and making them a part of the experiment. People weren't upset about how much Amanda raised -- they were so completely invested in both her and the Kickstarter campaign that the success of the campaign was a success for the fans as well. It's exciting to be a part of something special, and that's part of what makes Kickstarter so compelling.

It's not about an "us vs. them" model -- which is how the legacy industry players too frequently frame things. It's about an inclusive model, where it's about more than money. It's about an emotional investment in the artist and the outcome. People don't begrudge the success, because it's not just Amanda's success. It's the success of everyone who supported her.

We recently posted about Hollywood super agent Ari Emanuel's ridiculous demands that Google somehow find the magic "stop piracy" button. That story is turning into something much more interesting. The next day, at the same conference, a Google exec, Susan Wojcicki, pointed out the obvious: that Emanuel doesn't know what he's talking about (she used a more diplomatic phrase, noting that he was "misinformed").

Emanuel has since shot back that he's not at all misinformed about the need for the geeks in Northern California to solve his problems:

I am misinformed about a lot — just ask my wife — but I’m not misinformed about this: One of our last remaining dominant American exports is our creativity, no matter how you define it, either as a story or as an algorithm. There is equal genius behind companies like Apple, Facebook, Amazon and Google as there is behind artists who create stories that resonate around the world. We need to protect America’s intellectual property and Hollywood can’t do it on its own. I understand that the onus is not entirely Google’s, but let’s stop talking at each other and get in a room with all parties to figure this out. To be clear, I don’t want to rehash SOPA as we can all agree that was a reflection of Southern California’s arrogance, and let’s also not pretend that we’re working together on this issue because we have Youtube channels together. This is a larger conversation. It’s time for Hollywood, our government and Silicon Valley to step up and collectively resolve this problem. Let me know where and when and I’ll be there.

Ari

The problem, of course, is that his very premise is wrong. He's taking the position that we need to "protect" first, rather than just fix our business models. This is a very mercantilist viewpoint: where protectionism beats innovation. But we've got centuries of economic proof that that's not how you evolve and it's not how you innovate and compete. What you do is you figure out ways to add value and to embrace new business models. Any effort that starts from the default position that what we need is more "protection" rather than greater innovation is doomed to fail -- because that innovation is an unstoppable train, and the "protection" aspect doesn't work. So if you don't focus on the innovation, then someone else will, and you'll have wasted all your time, effort and money on a "solution" that simply drives your business somewhere else. To the place that has focused on innovation.

But, even worse, is his arrogance in thinking that this is a problem that requires "Hollywood, our government and Silicon Valley to step up and collectively resolve this problem." This is the same thing we've been hearing for months out of Chris Dodd and the Hollywood crew: it's time to get back into the backroom and craft "a deal." That's how they think, but it completely misses the point. This isn't about crafting a backroom deal, it's about recognizing the power of the internet, and the importance of the internet to people.

Every time a Chris Dodd or an Ari Emaneuel suggests a backroom deal between Hollywood, Silicon Valley and the government, he leaves out the people who actually matter: all of us, out here, on the internet.

And, to that point, if he wants to know "where" this larger conversation is happening: it's right here. On the internet. It's on news sites and social media sites. It's on Reddit and Twitter and Facebook. It's here on Techdirt and lots of other blogs. We live on the internet and this conversation has been happening for a decade. Ari and his buddies have always been welcome to join, so it's a bit disingenuous for him to suggest that he'll "be there" when we tell him where "the meeting" is. It's here. It's going on all around you and you've always been welcome to join. But you don't. And, no, I won't even get into the irony of him demanding a "meeting" when Hollywood did absolutely everything to keep the rest of the world out of the backroom meetings that led to SOPA.

Joshua Topolsky, the editor in chief of The Verge -- who challenged Emanuel, and was rudely told to "go sit down" and had Emanuel ask "where do you work?" -- has written his own response, in which he tells Emanuel he works on the internet:

What Ari seems to forget, and what maybe politicians and the film and TV industry seem to forget is the last time piracy was a flashpoint between the entertainment and tech industries, the problem was not solved by sledgehammer legislation. Or takedowns. Or yelling. It was solved by the music industry accepting that their old model was broken, and technologists figuring out a new way to do business. And that gets to the core of this problem for Ari. We didn't go back to the way things were after the RIAA sued college students — the industry changed.

He doesn't want to change his business model, and he will do anything he can to protect it — including altering the basic functionality of the internet. Pirating and Apple's resulting rise in the music business changed that business forever... and diminished its financial footprint. Entrenched companies that owned every part of the food chain suddenly discovered they were just another cog in a big wheel.

Ari doesn't want that anymore than the music industry wanted it, or traditional media wanted it. Ned Ludd and his machine wreckers didn't like change either.

But there is one simple truth that I really believe in, in life or in business: adapt or die.

You want to know where I work Ari? I work on the internet. Welcome aboard.

I'd argue it goes even further than that. We don't just work on the internet. We live and breathe the internet. It is our identity. Emanuel looks at the internet, and he doesn't get it. To him, it's just a version of television that doesn't pay as well, so that's not interesting. In his talk, he repeatedly demanded a business model that pays as well as TV. That's not how this works. Disruptive innovation doesn't wait until you go back and provide the legacy players with a business model that pays just as well as the old business model. That's not disruption. Disruption works because the legacy players are too shortsighted to see the trend lines, and so infatuated with their fat profits that they don't recognize the potential of the new mediums, and only seek to regulate against them becoming too pesky. The train companies pushed for legislation requiring all automobiles be preceded by a person walking on the road waving red flags.

Emanuel is asking for everyone to come up with the next version of red flag laws for the internet. That's not how this works.

If he wanted a real conversation, it wouldn't be focused on the parameters of how do we set up protectionist, mercantilist barriers. It would be on how do we create more value and then monetize that value. And those conversations are happening all the time, all over the internet. He's welcome to join. He's always been welcome to join. But it requires doing a little actual working and living on the internet.

Back in February, we wrote up a warning to "the internet as we know it" as the UN's International Telecommunications Union (ITU) was looking to take over control of the internet, mainly at the behest of countries like Russia and China who were seeking a "more controlled" internet, rather than the very open internet we have today. The major concern was that almost no one in the US seemed to care about this or be paying much attention to it. The February call to action may not have done much, but the situation has certainly changed in the last couple of weeks.

Last week, the father of the internet, Vint Cerf, once again raised the alarm in both a NY Times op-ed and in a keynote speech at the Freedom to Connect (F2C) conference: His concerns echo the ones we've been hearing for months. This move is about giving some countries much greater control over the internet:

Last June, then-Prime Minister Vladimir Putin stated the goal of Russia and its allies as “establishing international control over the Internet” through the I.T.U. And in September 2011, China, Russia, Tajikistan and Uzbekistan submitted a proposal for an “International Code of Conduct for Information Security” to the U.N. General Assembly, with the goal of establishing government-led “international norms and rules standardizing the behavior of countries concerning information and cyberspace.”

Word of a few other proposals from inside the I.T.U. have surfaced. Several authoritarian regimes reportedly would ban anonymity from the Web, which would make it easier to find and arrest dissidents. Others have suggested moving the privately run system that manages domain names and Internet addresses to the United Nations.

Such proposals raise the prospect of policies that enable government controls but greatly diminish the “permissionless innovation” that underlies extraordinary Internet-based economic growth to say nothing of trampling human rights.

Since then, the story has been getting much more attention in a variety of arenas, with plenty of other mainstream publications warning people about how bad this could be. Congress got into the act too (in a good way), holding hearings on the matter this week, with a near unanimous position that a UN/ITU takeover of the internet would be a very, very bad thing.

It would guarantee moving the internet towards a model of top-down control, rather than bottom up innovation. It would give governments much more say in controlling the internet, unlike the hands-off system we have now, where no government truly has full regulatory control over the internet. It would almost certainly lead to more global restriction on the internet, including serious potential impact on aspects of free expression and anonymous speech. It might also make the internet much more expensive, as the whole ITU setup is about protecting old national telco monopolies, and many would see this as an opportunity to try to put tollbooths on internet data.

The ITU is holding a meeting in December in Dubai about all of this, and it appears that US officials are finally waking up to why this is a true threat to the open internet.

But it needs to go beyond that. The positioning of this discussion from ITU supporters is that the US government has "too much control" over the internet today. And one could argue that's true at the margins, though it's an exaggeration. For the most part the US government does not have much ability to control the internet directly. Now, I think plenty of people agree that the setup of ICANN and IETF are hardly ideal. In fact, they've got significant problems. But moving from that setup to one where the ITU is in charge would be a massive step backwards.

And, certainly, there is significant irony in the fact that Congress is suddenly acting so concerned about fundamental attacks on an open internet -- when many of the same officials were more than happy to toss out key principles of an open and free internet in the past few months with SOPA/PIPA/CISPA/etc. But, in this case, worrying about political consistency is a lot less important than stopping the ITU proposal from going forward.

When the US government started seizing domains, there was significant criticism of ICANN and calls for a more decentralized solution that no one could control. The move towards ITU oversight is a move in the opposite direction. It would make things significantly worse and not better.

For those in the US, we need to speak up and keep the pressure on our elected officials to fight this move in the ITU. While they're saying the right things now, we need to be vigilant and ensure it continues. Trust me, the "irony" of their own attacks on internet freedom and openness have not gone unnoticed by supporters of this ITU takeover plan. Expect them to offer "deals" to the US, by which the ITU gets control over the internet, in exchange for allowing the US to use that process to move forward with efforts to censor the internet for copyright reasons, as well as to get better backdoors to data for snooping.

For those outside of the US, it's also time to speak up. Don't fall for the easy story that this is just about wresting the control from US interests. If you believe in the value of a free and open internet, the ITU is not the answer. You, too, will inevitably be significantly worse off with what results.

The folks over at Access have put together a petition to tell the UN that the internet belongs to us, the people, not to the UN or the governments of the world. While the UN is not as subject to public opinion, if the world speaks out loudly enough against this effort to capture and control the internet, it won't be able to move forward. But people have to speak out to make this happen.

With the release of Google's copyright transparency report recently, which helped highlight some astoundingly stupid DMCA takedown notices -- including a few from the RIAA -- you just knew the RIAA would have to lash out in response. But the question was what angle would it take. Now we know: it's simply making things up.

The RIAA put up a blog post in which it listed out "five facts" to attack Google's transparency report claims. Except, this is RIAA math. If you actually read the "facts" you realize they're basically two points repeated over and over again: (1) Google limits how many searches they can do to find infringing material. (2) Google limits how many infringing domains it can report via its Webmaster tools.

There's a big problem with both of those claims (beyond the fact that "two" does not equal "five"). It's that neither "fact" appears to be really accurate. Google does have some tools that limit crawlers from automated searches, and perhaps the RIAA has been using such tools to try to find infringement. That would certainly explain its decision to DMCA reviews from media sites of musicians, or official release videos from artists' own accounts. Of course, that would also subject the RIAA to claims of falsifying DMCA notices, since they have to swear that they have a good faith belief that there really is infringing material on those sites, and they can't do that if they don't actually look at them.

As for the limits on submissions, well, as Ars Technica points out the only "limit" appears to be how many URLs can be submitted in a single submission. That seems to be 1,000 per shot:
But there's no indication that you can't just go back and then list out the next 1,000. There may be a few other safeguards within a separate program that Google has with "trusted" partners, but even then it appears to just be how many URLs can be submitted in a single batch, rather than a total limit. In fact, as Google told SearchEngineLand, the RIAA is simply wrong, and there are no actual restrictions besides how many URLs can be submitted at once:

We have never imposed any limit on the number of DMCA notices that a copyright owner or reporting organization may send us, although we do have some technical safeguards in our trusted partner program (where submitters may be using automated mechanisms to send large volumes) as a safeguard against accidental flooding of the system.

And if you need any more proof that the RIAA is completely full of it, you just need to look at Google's own transparency report, where it shows that Microsoft filed more than five times as many DMCA takedowns as the RIAA and NBC Universal filed twice as many:


It seems that even if there was "a limit", which there does not appear to be, then the RIAA is not coming anywhere close to that limit anyway.

In other words, we can sum up the RIAA's complaint about Google's copyright transparency report as being "the transparency report is wrong, because we're clueless about how to work your tools." Given the RIAA's general (lack of) understanding about technology, perhaps that's not too surprising. But it is amusing to see them so stringently and publicly display their ignorance.

In a country where the mainstream media is tightly controlled, Chinese microblogs have provided an invaluable way for millions of people to find and share unofficial information. That's obviously problematic for the Chinese authorities, who have been gradually clamping down on what they term "rumors".

Things came to a head recently when posts about an alleged political coup in the country appeared on leading microblog services Sina Weibo and Tencent Weibo, resulting in both of them being punished for failing to pull the rumors fast enough. Now Sina, whose microblog service passed the 300-million user mark recently, has instituted strict rules for users, presumably in an attempt to placate the Chinese government and head off future punishments.

Interestingly, it is bringing in a variant of the "three-strikes" system that has been so controversial in the West, as China Media Project explains:

According to the regulations, users logging more than 5 posts of "sensitive information" would be prevented from posting for 48 hours and have the relevant content deleted. Further, those users posting "sensitive content" with "malicious intent" would be prevented from posting for more than 48 hours and face the possibility of having their account terminated.

As The Next Web reports, "sensitive information" covers a wide range of subjects:

Users have the right to publish information, but may not publish any information that:

1. Opposes the basic principles established by the constitution
2. Harms the unity, sovereignty, or territorial integrity of the nation
3. Reveals national secrets, endangers national security, or threatens the the honor or interests of the nation
4. Incites ethnic hatred or ethnic discrimination, undermines ethnic unity, or harms ethnic traditions and customs
5. Promotes evil teachings and superstitions
6. Spreads rumors, disrupts social order, and destroys societal stability
7. Promotes illicit activity, gambling, violence, or calls for the committing of crimes
8. Calls for disruption of social order through illegal gatherings, formation of organizations, protests, demonstrations, mass gatherings and assemblies
9. Has other content which is forbidden by laws, administrative regulations and national regulations.

Users of China's microblogging services have proved surprisingly adept at avoiding previous attempts to censor their messages. For example, the blind Chinese human rights activist Chen Guangcheng was variously referred to as "blind man", "embassy", and "going into the light" as Chinese authorities noticed and then blocked each coded reference in turn. The new regulations specifically forbid this kind of approach:

It is not permitted to use oblique expression or other methods to get around the aforementioned restrictions

However, this probably just means that microblog users will become even more "oblique" in their techniques to route around the new forms of censorship. Short of shutting down such services completely -- a move that would probably be dangerously unpopular now that so many people use them -- it's hard to see how the Chinese authorities can ever completely stamp out this kind of inventiveness.

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I've pointed out a few times in the past that I don't think it really helps either company when Microsoft and Google to trade antitrust allegations against each other. Both companies are facing (or have faced) significant antitrust questions themselves, and raising them against each other just seems like sour grapes. A few months ago, Microsoft filed an EU complaint against Google, arguing that its plans for licensing the Motorola patents it acquired amounted to an antitrust violation. Now, Google has hit back, filing a similar accusation back at Microsoft (and Nokia), arguing that their deal, transferring some 2,000 patents and patent applications to Canadian patent troll Mosaid, represents an antitrust violation:

Nokia and Microsoft are colluding to raise the costs of mobile devices for consumers, creating patent trolls that side- step promises both companies have made.

I'm still pretty damn skeptical of either claim. The fact that both were filed in the EU is telling, as the EU generally has a much more aggressive interpretation of antitrust law, meaning that both of these filings really look like two giants slapping each other around for sport, rather than competing in the marketplace.

The only thing that I do find kind of interesting about both filings is the fact that they're focused on the use of patents as a lever for antitrust activity. Patents are, by their very nature, a government-granted monopoly. And there have been arguments made that, as such, their usage deserves extra scrutiny when it comes to antitrust analysis. Though, on the flip side, people might point out that, as government-granted monopolies, patents are immune from antitrust analysis, since by their very nature, they're a government-granted allowance for antitrust behavior. It is, after all, the government granting a monopoly. Should it really be any surprise that companies then do monopolistic things with them?

Either way, I don't see either filing ending well for either company involved. If anything, we can just hope that it helps demonstrate how patents themselves are tools of monopolistic antitrust behavior.

Wired has put together a very cool Milennium Falcon infographic illustrated by Michael Cerwonka, to show the breakdown of revenues generated by the Star Wars franchise over its entire history (thanks to Jacob for sending this in). By combining data and estimates, they clock the total in at a cool $33-billion (click for big version):

They also found out which character is (unsurprisingly) the most successful overall:

What we all want to know, of course, is which character is worth the most? On that, the privately held Lucasfilm is coy. “Darth Vader is one of the most popular Star Wars characters across most product categories,” a Lucasfilm spokes-Wookiee says. “Your instincts are correct.”

This is amusing, because as you may recall, last year we discussed the fact that the actor who portrayed Darth Vader has never been paid residuals for Return of the Jedi because Lucasfilm claims the movie still hasn't turned a profit. One has to assume that, somewhere in that $33-billion figure, there are enough Return revenues to cover the $32.5-million it cost to make, even adjusting for inflation. But of course, that's not how Hollywood accounting works.

I know some will say too bad and blame the actor for signing the contract, but it's still impossible to accept the notion that the 15th highest-grossing film ever has never become profitable. That can only happen with crafty accounting, where the studios use various techniques to keep revenues just below costs on paper while still pulling in millions of dollars for themselves. Maybe it's up to actors and other creative workers to demand better contract terms—or maybe it's just another good reason for them to escape the Hollywood system.

About a month ago, we wrote about how Google was trying to convince the judge in the Google book scanning case that the Authors Guild did not have standing to sue on behalf of authors. This was, in part, because different authors would have very different issues (especially on the fair use analysis), but also because lots and lots of authors didn't seem to have a problem with what Google was doing (especially considering studies that have shown being in Google Books helps sell more books).

However, the judge in the case has ruled, mostly on a procedural basis, that the Authors Guild does, in fact, have standing to sue. It argues that associations have long been allowed to sue on behalf of their members, and the fair use analysis questions aren't really a big deal. At worst, the court says it could split up the "classes" into different groups, so that those with specific issues could be judged separately. Of course, you could just as easily make the argument that this reasoning should have resulted in the opposite conclusion. If the court is going to lump different groups of authors into different camps, then shouldn't each of those groups create their own class action suits, rather than putting them all under the Authors Guild's umbrella? No one is arguing that there can't be a class action lawsuit if the relevant class is assembled. There's just a big question over whether or not the Authors Guild really represents the interests of the people included in the classes. And the judge doesn't really address that question, other than to say those who don't have a problem with Google Books can more or less opt-out of the class.

On one point, however, the judge's reasoning does make sense: why did Google wait so long to challenge the Authors Guild's standing. Elements of this case have been going on for many, many years. It does seem a little off to file this particular point so late.

I doubt many people are that surprised by the ruling, but it does mean that Google will have to continue the Google book scanning fight against the Authors Guild. In the long run, I still think any result only ends up harming the Authors Guild. They are showing themselves to be anti-innovation luddites who disregard the interests of the majority of their members, while grandstanding against any new technology that upends the old publisher-gatekeeper model. That may be useful for some big name authors they represent -- since it's all about keeping out competition from new authors, but it's no path to the future.

One purpose for which micropayment solution Flattr (which we use here on Techdirt) has certainly caught on is providing a way for people to support podcasts. Apparently, simple integration allowing people to designate some money for podcasters has just "felt right" for lots of users who do exactly that. And some podcasting/podcatching apps have tried to accommodate this. Instacast, a popular app for downloading and listening to podcasts on the iOS platform, integrated Flattr back in February, but in early May the arbitrary gatekeepers at Apple rejected the app because the Flattr integration went against Apple's demands that all in-app payments go through its own system. Vemedio (the makers of Instacast) along with the folks at Flattr appealed to Apple that this was ridiculous... but Apple issued a final decision rejecting the app. In response, Vemedio is very reluctantly removing Flattr from its app, meaning podcasters just lost a good way of making money, all because Apple can't control it. More evidence of Apple becoming a rather evil gatekeeper, rather than an enabler of new and interesting ideas.

One of the most dishonest aspects of ACTA was its attempt to equate genuinely dangerous products like fake medicines with totally harmless ones like unauthorized digital copies. Fortunately, that's such an absurd equivalence that more and more people have voiced their concerns over it -- including the Liberals and Democrats in the European Parliament, who cited it as one reason why they would be voting against ACTA:

ACTA wrongly bundles together too many different types of IPR enforcement under the same umbrella, treating physical goods and digital services in the same way. We believe they should be approached in separate sectoral agreements, and following a comprehensive and democratically debated mandate and impact assessment.

EDRI points out that the European Commission has just suffered a major defeat at the hands of the European Parliament thanks to this lazy kind of coupling in its proposed "Internal Security Strategy" (ISS) for Europe:

In a piece of what the Commission appears to have believed to be a piece of masterful political syllogism, it explained in its Internal Security Strategy (adopted at the end of 2010) that dangerous counterfeit goods are a threat for human health. These counterfeiting offences are infringements of intellectual property rights (IPR). "Piracy" is also an infringement of intellectual proprety rights. Consequently, the fight against "counterfeiting and piracy" must be included in the EU's Internal Security Strategy.

This is part of the wider strategy, as seen in ACTA, to treat all IPR as if it were the same, with dangerous medicines being considered as important as unauthorised downloading and vice versa. The obvious problem, as has become obvious in the ACTA, is that treating serious and trivial infringements as if they were of equal importance will inevitably result in either the serious infringement being treated as if it were trivial or vice versa.

But something that might have been simply waved through before ACTA has now been met with skepticism:

The European Parliament, however, far more sensitive now to the questionable approach of the European Commission to intellectual property rights as a result of the ACTA discussions, recognised this crude attempt to push its so far unsuccessful approach to an even higher level of hysteria. Whatever else one can say about downloading a song without authorisation, the number of deaths that it is likely to cause is, we believe, comparatively low.

As a result, and by a huge majority, the members of the European Parliament adopted a resolution on the ISS that includes the following major slap-down for the European Commission:

...it does not appear fully justified or appropriate to take action in the field of the enforcement of intellectual property rights – a matter which is part of a specific in-depth debate – within the framework of the ISS;

That is a noteworthy refusal, and suggests that ACTA's attempt to lump online sharing with counterfeit medicines, and to make them subject to the same severe civil and even criminal sanctions, has backfired badly. It might be too much to take this ISS snub as an indication of what will happen when the European Parliament votes on ACTA later this summer, but it certainly suggests a new-found wariness in this area.

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