As sales of its products soar, and its share price continues to climb, Apple has come under increasing scrutiny because of the working conditions in the Chinese factories where its iPhone and iPad are manufactured. This has led Apple's CEO, Tim Cook, to announce recently that the Fair Labor Association will be conducting audits of Apple’s final assembly suppliers, including Foxconn factories in China.

That tension between the undeniably desirable products and the not-so-glamorous conditions under which they are made powers a monologue by Mike Daisey, entitled "The Agony and the Ecstasy of Steve Jobs," which we discussed last month, and described by the New York Times as:

a mind-clouding, eye-opening exploration of the moral choices we unknowingly or unthinkingly make when we purchase nifty little gadgets like the iPhone and the iPad and the PowerBook.

The NYT also has an interview with Daisey in which he makes clear his view that, for all the shiny-toy ecstasy Apple's leader purveyed to the world, Jobs could have done better:

This is someone who had an opportunity to transform the world with these devices and then did. He started as someone whose devices were forged out of piracy, and today it’s the most locked-down computer company in the world. As a capitalist I’m sure that it’s very attractive. But if we’re talking about him as an artist, I’d say that he completely lost track of his ideals.

Given that jaundiced view of "the most locked-down computer company in the world", it perhaps shouldn't be too much of a surprise to discover that Daisey the artist is trying to stay true to his own ideals by opening up his work to everyone, not just to download, but to perform:

after nearly 200 performances, the monologuist Mike Daisey was to release a theatrical transcript of his latest one-man show, “The Agony and the Ecstasy of Steve Jobs,” through his Web site, mikedaisey.blogspot.com. It will be free to download and in a rare twist, if an aspiring performer should want to mount a production of the show, Mr. Daisey will not ask for payment.

Rare indeed. Given Jobs' allergic reaction to letting people 'do what they want' without significant limits or tollbooths, would he have approved?

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Biomimicry for robot design is a fascinating area of research, and all kinds of interesting robots are being developed that almost look like natural creatures. Here are just a few more examples of machines that are adopting biologically-inspired features.

• Robot researchers in Switzerland are copying the physiology of bats, grasshoppers and locusts to create robots that are more efficient at moving around. Swarms of these kinds of robots are going to be pretty scary looking... [url]
• Lockheed Martin is developing an unmanned aircraft called the Samarai and looks like a foot-long maple seed -- with propellers attached. These remote-controlled aircraft can hover in place and come equipped with video cameras for surveillance missions. [url]
• The exoskeleton of an African desert scorpion isn't smooth, but covered with microscopic bumps that protect it from sandblasting winds. This discovery could help helicopters fly in the desert for longer periods of time, since adding some grooves to smooth steel surfaces can reduce erosion by up to 20%. [url]
• To discover more interesting robotics-related content, check out what's currently floating around the StumbleUpon universe. [url]  

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

Few ideas display a sense of entitlement better than that of private copying levies. For they assume, by definition, that artists' representatives have a right to money from the public simply because there is some kind of storage that could be used to hold digital copies of copyright files, and that every time such a file is copied, money must be paid (never mind if you are just making backups or transferring your holdings to bigger storage sizes.)

This is based on the outmoded idea that the public are simply consumers, and ignores the fact that today they are also creators. Take digital photos, for example: since there is no cost involved in taking as many pictures as you wish -- unlike in the world of analog photography, where film and processing expenses act as a brake on creativity -- a typical collection of family snaps can easily run to many gigabytes. Moreover, most digital cameras also allow videos to be shot, and these generate even larger quantities of data. As a result, an increasing proportion of the data stored on devices has nothing to do with commercial works, and yet the full levy must still be paid.

A further problem is that the capacities of hard disks are now so large that even relatively low per-gigabyte rates generate significant additional costs when applied to disks with terabyte capacities, say. A case in point is the amended scale for Portugal's private copying levies, announced last month. According to an article in Exame Informatica (original in Portuguese), a 1 terabyte hard disk currently priced around $90 will cost $120 under the new scheme, while a 2 terabyte hard drive that costs $130 now will go up to $200. But this isn't just about hard drives. USBs, smartphones and even multifunction printers will all be subject to the new levy.

Naturally, the prospect of these surcharges is proving unpopular with the Portuguese public. And so the SPA (Sociedade Portuguesa de Autores -- Portuguese Society of Authors), which represents Portuguese artists in all areas -- music, audiovisual, dance, plastic arts and cinema -- decided to show how the country's creators really backed the move. The Portuguese blogger Miguel Caetano Carlos Martins describes what happened:

SPA has tried to validate their point by presenting a list of one hundred authors and artists that support this PL118 law. There's no denying that some author might think its a good idea... even though it might look suspicious that they could get only a hundred of them among their 25k+ registered members; and even though that roughly 20% of those 100 are the association board members; the really horrendous part is that we now found that some of those names were put there without any consent from the authors!

[Update: there are now apparently 200 names on the list - still rather a poor showing for such a large association.] If even a national organization for all categories of artists can't muster genuine support for such measures, it's clearly time to get rid of the whole antiquated approach. Inflated prices for digital devices will be a real drag on innovation in Portugal at a time when it is trying to modernize itself. Moreover, the manifest lack of enthusiasm for the SPA's attempt to mobilize support for the higher levies suggests that the creators themselves derive little benefit from the scheme.

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With more and more countries in the EU backing away from signing ACTA, and even the EU Parliament's president speaking out against it, it's raising serious questions about the ability to get the EU signed on to ACTA.

Harold Feld, over at Public Knowledge, has published something of an open letter to the USTR suggesting that, just maybe, if it stopped letting Hollywood lobbyists drive the agenda for their international trade agreements, such agreements wouldn't be chock full of crazy -- and might result in an agreement that countries actually want to sign.

So let me give USTR and the non-Hollywood industries involved right now in negotiating trade agreements like the Trans-Pacific Partnership Agreement (TPPA) another spot of free advice. (I won't even try to suggest this to Hollywood, given they are still in denial there was ever anything wrong with SOPA.) Do not let hollywood hijack your trade negotiations to put in even crazier stuff no one in the world likes, wants, or will sign on to. I know Hollywood has probably already been pushing for plenty of crazy stuff and doing crazy things like saying Canada's not moral enough to join you all on the Group W Bench at the TPPA negotiations. But it is never too late to take them aside and talk some sense into them. You can point out that we now have yet-another-study from academics rather than paid industry flunkies showing that peer-2-peer piracy has little impact on U.S. box office revenue and that Hollywood could do a lot to cut down on international piracy by making content available (for a fee) in a time and manner that customers want rather than insisting on an out-dated, complex "release windows" system developed in the old days when folks either went to theaters or waited 'til it showed up on DVD. So perhaps Hollywood should ratchet back the crazy stuff, or risk getting cut out of the negotiations entirely so every one else can get a trade agreement done?

It's such sensible advice that it'll never happen.

The TSA apparently has heard enough of various claims that its agents have been giving... um... "special attention" to attractive women making their way through airport security, and has issued a clear denial that the TSA ever focuses on looks, rather than security. In the specific case they're discussing, in which a woman claimed that she was forced to go through a body scanner three times, the TSA says that it happened so long ago that there aren't any specifics to go on. However, it does note that the machines at that airport are not the infamous "nudie scanners" but rather the newer machines that don't show a person's direct scan (and that these images are viewable by the person being scanned): It does seem likely that the TSA is correct that the claims of this woman being put through a scanner for prurient purposes may have been exaggerated, but that doesn't mean that attractive people aren't necessarily called out for extra attention. The TSA categorically denies this possibility, but how would it know? It's not like TSA agents have a particularly good track record in obeying the law. Could there have been a situation where someone sent a woman through the scanner multiple times not to see the scan, but to keep paying her special attention? That seems much harder to rule out, and nothing in the TSA's post even acknowledges that possibility.

Either way, the blog post also notes that the woman did not file a complaint at the time, and suggests that if you have a problem, you should do so. Perhaps the TSA's Blogger Bob has never traveled like us "normal" people, but the whole process of getting through security is often such a hassle, the last thing you want to do after finally being allowed into the gate area is to continue dealing with the TSA and/or to provoke further scrutiny. As we've seen in the past, the TSA also does not have the best record when it comes to responding to those who complain about its activities.

I'm sure Blogger Bob believes that the TSA doesn't give special attention to attractive passengers, but perhaps it's time to acknowledge that the entire security theater setup is open to such charges because of how poorly designed it is?

UNESCO, the United Nations Educational Scientific and Cultural Organization, is hosting a conference about The Media World after Wikileaks and News of the World. Sounds like it could be an interesting event, but one organization not happy about it... is Wikileaks. Seeing as it was a conference that touched on Wikileaks' interests directly, Wikileaks asked to take part, and was instead denied a chance to speak at the event. When asked about this, UNESCO actually claimed that choosing to not allow Wikileaks attendees was an exercise in "freedom of expression," which seems like a poor choice of words.

Of course, Wikileaks doesn't come out of this looking very good either. In unfortunately typical overstatement from Wikileaks, it tries to paint this as some big censorship issue, but that seems like an exaggeration. UNESCO noted that Julian Assange's legal advisor is taking part, as are numerous news organizations that partnered with Wikileaks. Wikileaks complains that even if Assange's legal counsel will be on one panel, there's no Wikileaks representation on other panels. Now, if I were organizing the event, I might use that as an opportunity to invite direct representatives of the site... if only for the fact that it would draw more interest to many of the discussions. However, beyond the irony of telling Wikileaks it can't speak at an event about Wikileaks, it really seems like the site is trying to make a bigger deal out of this than is justified.

We're still waiting for the supposed "new tone" of the conversation from Hollywood following its failed attempt to expand copyright/anti-piracy laws for the 16th time in the last 3 decades. There were some early claims that the widespread protests had made Hollywood realize that rather than passing bad legislation by working out deals with "friendly" Congress people in backrooms, it wanted to have a "conversation" with those who opposed SOPA/PIPA.

Well, Taylor Hackford, the head of the Directors Guild of America, apparently has a different opinion on all that. He went on the Pat Morrison radio show to go off on a wild rant about how everyone against SOPA/PIPA were duped via lies from companies like Google who want to protect all their profits. What was amazing was the number of blatantly false statements Hackford made in making his argument. Beyond the fact that he ignored tons of very legitimate concerns from engineers, online security experts and First Amendment scholars who clearly were not "duped," he also makes a bunch of statements that don't pass the laugh test.

For example, he repeatedly claimed that the movie industry employs two million people -- and he mocked the tech industry for not employing many people at all (and implying that they mostly employ people outside the country). According to the Congressional Research Service, the movie industry actually employs 374,000 people. Further research showed that jobs in actual film and movie production have been growing. Meanwhile, a recent study showed that just the Facebook apps economy alone created nearly 500,000 jobs. That second number may be exaggerated somewhat, but comparing how many jobs the movie industry has created with how many the internet industry has created isn't going to make Hackford look very good.

Then there was the specific attack on Wikipedia, where he first said that Wikipedia was a "stalking horse" (and he suggests an unidentified "they" convinced Wikipedia to shut down). Then he says that by shutting down:

"They robbed the public of important information in order to make their point"

The "they" is still not identified, but a good way to demonize opponents is to take away any identifying marks, so it's this mysterious "they." But, seriously? Robbed the public? This from an industry which has repeatedly pushed for extensions to copyright term -- something that actually does take away content that the public was supposed to have a legal right to? I recognize that Hollywood has trouble understanding what "robbed" actually means, but Wikipedia blocking access didn't rob anyone of anything. But, if we're going to go with Hackford's claim that withholding content from the public is theft, then, as Derek Kerton suggests, doesn't that mean that the movie release windows that Hackford and his buddies in Hollywood rely on are "robbing the public"? After all, it's withholding information -- and it happens for a lot longer than the one day that Wikipedia went dark (and for which there were easy workarounds).

Of course, even more ironic was that while Morrison's show is nominally a "call-in" show... people who called in were told that Mr. Hackford was not allowing any calls during his segment. Instead, people were left to comment on the radio show's website... where the vast, vast majority of folks were quick to pick apart Hackford's ridiculous claims and ask the station why it didn't have anyone expressing a counterpoint.

Over the years we've seen a few lawsuits against Google because companies are upset that they don't rank high enough in search results. Those companies seem to think there's some sort of legal right to being ranked where they want to be ranked. Pretty much all of those lawsuits have resulted in dismissals. Google's search rankings are an opinion and thus protected under the First Amendment.

Of course, most of those suing over this are kooks... but apparently a much larger potential lawsuit on this issue has been considered. The IFPI and the RIAA supposedly have asked for a confidential legal analysis concerning the legal issues if they sued Google for sometimes showing unauthorized sites above authorized sites in its search results. In other words, in the mind of the RIAA/IFPI if Google shows The Pirate Bay over iTunes... that must be illegal:

“Google continues to fail to prioritize legal music sites over illegal sites in search results, claiming that its algorithm for search results is based on the relevance of sites to consumers,” the document states.

“With a view to addressing this failure, IFPI obtained a highly confidential and preliminary legal opinion in July 2011 on the possibility of bringing a competition law complaint against Google for abuse of its dominant position, given the distortion of the market for legitimate online music that is likely to result from Google’s prioritizing of illegal sites.”

Of course all of this shows a massive misunderstanding of how Google works. The IFPI seems to honestly think that Google employees are making a conscious choice that "let's rank these unauthorized sites higher." They don't seem to understand how algorithmic search results work.

The fact that no lawsuit has appeared since July suggests that (hopefully) the "legal opinion" explained to the IFPI that any such lawsuit would likely be laughed out of court. Hell they just had to look at the dismissal of the myTriggers lawsuit in September if they wanted to understand why such a legal strategy is destined to fail miserably.

One of the positive outcomes of the debate that has raged around SOPA/PIPA is that more people have looked at the facts, rather than listened to the rhetoric, surrounding piracy. In particular, the copyright industries' hitherto unchallenged claim that piracy is destroying their business is finally being challenged – not least by reports like "The Sky is Rising" that consolidate industry figures to show that things are really looking pretty good across the board.

Another indication of that new attitude is the incredible response elicited by an article in Forbes entitled "You Will Never Kill Piracy, and Piracy Will Never Kill You", which has received over 3600 re-tweets on Twitter, and nearly 10,000 shares on Facebook. The basic argument will be familiar enough to Techdirt readers: that the war on piracy can never be "won", and that what is needed is a change of attitude on the part of the media companies. The article concludes:

Treat your customers with respect, and they’ll do the same to you. And that is how you fight piracy.

Pretty obvious, you would have thought, although strangely it isn't to the media companies.

The author of that piece, Paul Tassi, has followed it up with "Lies, Damned Lies and Piracy." Although this has proved far less popular than the first one, I think it's better, because it offers some original insights where the other went over well-trod ground.

I particularly liked his closing thoughts:

If the industry is struggling, I just don’t see it, as their projects are getting bigger and more costly with each passing year. When a movie bombs or a show gets cancelled, no one ever says “oh, well, piracy.” Rather, it’s the quality of the product that accounts for such failures. Even with relatively high piracy rates across all forms of media, we’re still seeing blockbuster films, shows and games released at a higher rate than ever, and profits to match.

I think the media industries would love to kill piracy with a quick piece of legislation that blacks out every torrent site on the internet, but I don’t think they want to fight it so much that they’ll change their entire distribution model on a dime, which would actually go a long way toward truly competing with piracy. The reason things are the way they are is because they’re working. Despite the fact that even though yes, every piece of media is available on the internet for free somewhere, people are still buying.

There are three really key points packed in there. First, that the media industries just aren't struggling, despite their cries of woe. Secondly, what causes real financial harm to the film and music worlds are bad products that lose huge amounts of money and disappoint audiences. And finally – and most importantly – if piracy really were so life-threatening to the copyright industries, and if their bottom lines really were in danger, then they would have tried something other than begging lawmakers to protect them. The fact that they haven't, as Tassi emphasizes, means that there is no real pressure on them to do so: people still buy lots of stuff, piracy isn't really a problem, things are working.

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This is really incredible. Apparently IFPI (the international RIAA, basically) penned a letter to European Parliament members concerning the widespread ACTA protests claiming that these "protests silence the democratic process."

Over the past two weeks, we have seen coordinated attacks on democratic institutions such as the European Parliament and national governments over ACTA. The signatories to this letter and their members stand against such attempts to silence the democratic process. Instead, we call for a calm and reasoned assessment of the facts rather than the misinformation circulating.

That's quite a statement. We'd heard some SOPA/PIPA supporters hint at views like that, but not quite so blatant. Let's be clear: the protests and the public speaking out are the democratic process. They're not silencing the democratic process in any way. To suggest that people speaking out over their own viewpoint somehow silences the process, is to redefine "the democratic process" to be something entirely different than what most people believe.

One of the key principles behind the growth of the internet was belief in protection against secondary liability claims. That is, if you set up a website where users can post stuff, the people who post stuff are liable for the content -- not you as the service provider in the middle. This is the core purpose behind Section 230 of the CDA (and, to a lesser extent) the DMCA's safe harbors. But there are some loopholes where technically there are no official safe harbors (though common sense says you still shouldn't be liable). The website JotForm.com, which allows individuals to create their own forms easily, has had its main domain, jotform.com "suspended" by the US government, due to "an ongoing investigation." Because of this JotForm is forcing all of its users to change their forms to use their .net domain rather than their .com.

Many people on the comments assumed the content was posted by us. This can happen to any site that allows public to post content. SOPA may not have passed, but what happened shows that it is already being practiced. All they have to do is to ask GoDaddy to take a site down. We have 2 millions user generated forms. It is not possible for us to manually review all forms. This can happen to any web site that allows user generated content.

I'm at a loss as to how this possibly makes sense. Even if the forms were being used for some illegal purpose (and it's important to note that Section 230 does not apply to criminal activity -- just civil offenses), I still can't fathom a reason why it should lead to everyone else getting censored and an internet startup facing a massive hardship wherein tons of users have had their service disrupted with millions of useful forms being suddenly disappeared.

And I won't even bother spending any time on the fact that apparently it was GoDaddy who helped the US government "suspend" the domain.

For a government that insists it's trying to help small businesses and startups, to go and disrupt one and all of its users over some possible illegal usage by a small number of users is just crazy. It's this kind of overly broad censorship (and, yes, this is clear censorship) that is what people were afraid of under SOPA. As JotForm notes, it's important to recognize that the US government already believes it has these powers. And the damage here for a small business is massive. JotForm has been filling its Twitter feed with customer service attempts at helping upset customers, and making it clear it has no information on why the .com disappeared. It looks like the US government asked, and GoDaddy just took away the domain. If you've never worked for a startup, perhaps you can't imagine just how insanely disruptive and destructive such a situation can be. Everyone is so busy working and building a company -- but something like this means suddenly all of their time has to switch over to help all of those upset customers (and doing so without being able to use the site that everyone will go look at first!).

Activities like this will chill innovation and entrepreneurship in the US. Why locate here or even setup under a .com if the US government might kill your business with no explanation at any moment?

One of the bolder ideas in the UK's Hargreaves report was the suggestion that a Digital Copyright Exchange should be set up. The idea here is to promote innovative uses of digital content by making it much easier to acquire the necessary licenses from rightsholders. So it's interesting to see the UK Publishers Association (PA) backing the idea:

The Publishers Association (PA) has today called for the development of a new online platform that would act as a “one stop shop” for the exchange of information about how to license copyright works online. Such a Digital Copyright Exchange (DCE) would counteract the need for dangerous changes to copyright law proposed by government in a parallel consultation, the PA argues.

However, as this indicates, the PA's support for the DCE is actually an attempt to get all the other suggestions in the Hargreaves report thrown out:

In supporting the development of the DCE, The PA urges government to suspend progress of the parallel Copyright Consultation launched by the Intellectual Property Office late last year, which recommends drastically weakening copyright. The PA maintains that many of the consultation’s proposals would remove or undermine the ability of rightsholders to develop licensing business models, and go against the grain of the market-based voluntary arrangements proposed in the DCE.

This is, of course, nonsense: there's no suggestion of weakening copyright, just trying to update it for the digital age -- and only in very minor ways. Proposals include things like permitting format shifting and also freeing up orphan works -- hardly radical.

Moreover, it turns out that the PA is only supporting the DCE if it's watered-down to the point of uselessness :

The PA makes the case for a DCE as a fully voluntary, interoperable platform, for use by businesses and the public, which could allow rights to be licensed more efficiently and openly. Its submission makes clear that the DCE would not be a place to set prices or terms, but rather to put potential users in touch with the rightsholders in a work, in all forms of content.

In other words, the PA wants the DCE to be a totally toothless system that would not solve the problems faced by innovative startups seeking to explore new uses of digital copyright material, but would allow publishers to simply carry on as before.

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A few months back we noted that the European Court of Justice had ruled that ISPs couldn't be required to set up a filtering system designed to catch copyright infringement. The case involved Belgian anti-piracy organization/collection agency SABAM, which had demanded that a local ISP proactively filter against infringement. Apparently, SABAM didn't limit this strategy just to ISPs, but also brought similar efforts against online sites and social networks, including local social network Netlog. That case followed a similar trajectory, and now the EU Court of Justice has issued a similar ruling noting that an online site can't be forced to proactively monitor for infringement because that infringes on too many other rights. The court's press release (pdf) is worth reading:

In the main proceedings, the injunction requiring the installation of a filtering system would involve monitoring all or most of the information stored by the hosting service provider concerned, in the interests of the copyright holders. Moreover, that monitoring would have to have no limitation in time, be directed at all future infringements and be intended to protect not only existing works, but also works that have not yet been created at the time when the system is introduced. Accordingly, such an injunction would result in a serious infringement of Netlog’s freedom to conduct its business since it would require Netlog to install a complicated, costly, permanent computer system at its own expense.

Moreover, the effects of that injunction would not be limited to Netlog, as the filtering system may also infringe the fundamental rights of its service users - namely their right to protection of their personal data and their freedom to receive or impart information - which are rights safeguarded by the Charter of Fundamental Rights of the European Union. First, the injunction would involve the identification, systematic analysis and processing of information connected with the profiles created on the social network, that information being protected personal data because, in principle, it allows those users to be identified. Second, that injunction could potentially undermine freedom of information, since that system might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications.

Consequently, the Court’s answer is that, in adopting an injunction requiring the hosting service provider to install such a filtering system, the national court would not be respecting the requirement that a fair balance be struck between the right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information, on the other.

Here's another good court ruling against the massive overreach of the entertainment industry, as they seek to bend and break the internet so that it acts more like how they want it, rather than how everyone else wants it to work.

Following a long list of countries including Poland, Latvia and the Czech Republic, Bulgaria's government has now announced it's halting the ratification of the ACTA-treaty. Bulgaria's Minister of Economics and Energy even went as far as offering his resignation, while commenting:

"Since there are no damages for society, I believe the move is sufficient as a sign of assuming responsibility. I was convinced that this agreement would be beneficial for Bulgaria. Even now experts say its positive effects would outweigh the negative ones."

It's unclear which 'experts' the Minister is referring to. It's also a little hard to believe that someone would offer their resignation when they were convinced they were doing the right thing. Especially when the Prime Minister instructs his party to vote against ACTA in the European Parliament:

"The PM further vowed that the Members of the European Parliament from his ruling, center-right Citizens for European Development of Bulgaria party, GERB, would not endorse the ratification of ACTA."

What is certain is that the nationwide protests last weekend such as in the video below, which saw impressive numbers on the streets of 16 cities in a country of 7.5 million people, have startled the government sufficiently to understand they need to be more wary about the types of treaties they sign, especially when those treaties infringe on civil liberties. While proponents of stronger IP protection get more audacious, an increasing amount of people are taking to the streets to hold their governments accountable for signing these treaties or comparable laws.