We've discussed the fight in the US over open access to government-funded research in the past. Currently, the NIH requires any NIH-funded paper to be publicly & freely available one-year after it's been published. That gives journals one-year of exclusivity to profit off of the work before it's more widely available. There have been some efforts to block government agencies from requiring such open access, as well as proposals to expand it to other agencies beyond the NIH. We also recently wrote about a proposal in New York to do something similar, but with six-month of exclusivity, rather than a year.

Of course, some people take offense to any such exclusivity, seeing as we're still talking about taxpayer-funded research. Over in the UK, it appears that they're going to go completely in favor of open access, with a plan requiring immediate free access to any taxpayer-funded research. That's big news. Under the scheme, research papers that describe work paid for by the British taxpayer will be free online for universities, companies and individuals to use for any purpose, wherever they are in the world. The plan will be rolled out over the next two years, but by 2014, it sounds like all such research in the UK will be widely available for free.

Unfortunately, not all of the details sounds as good. The proposal tries to make the journals okay with this by forcing researchers to pay an "article processing charge" for each paper they publish, and it sounds like some of those funds go back to the publishers. But, of course, that's putting more of the cost on the universities that fund the research, and there's reasonable fear that this will lead those universities to ration out how many publications are "allowed." Many open access advocates preferred a different plan, that still involved academics doing deals with journals, but which also allowed them to publish the works online. The publishers, of course, weren't happy with that plan.

More open access is definitely a good thing, but I worry about any sort of plan that involves an explicit attempt to prop up a legacy industry that doesn't want to adapt. That seems very likely to create economic waste and to be abused at the cost of the public.

Via Jeff Roberts at Gigaom, we learn of yet another patent trolling operation: Parallel Iron, which has sued a bunch of tech companies and banks because of the file systems they use. It filed a few lawsuits in April, most of which were refiled in June, and then it just filed a bunch of new ones as well. Some of the filings are more specific about the file system -- such as in the Facebook and Amazon cases, where it specifically calls out the popular Hadoop Distributed File System (HDFS). In the Oracle suit, it's parallel Network File System (pNFS). For what it's worth, EMC appears to be the only company sued who tried to first sue for declaratory judgment in a different venue, but it was still sued with all the others in Delaware on the same day that EMC filed its own suit in Massachusetts.

While most patent infringement lawsuit filings tend to be pretty matter of fact, this one goes immediately for the hyperbole stick, suggesting that the four inventors on these patents made some amazing breakthrough, and everyone else copied it:

In this technological age, we take for granted the ability to access tremendous amounts of data through our computers and the Internet, a process that seems effortless and unremarkable. But this apparent effortlessness is an illusion, made possible only by technological wizardry. The amount of information that is used by many companies has outstripped the storage capacity of individual memory devices. The information must be stored across hundreds or thousands of individual memory devices and machines. The ability to keep track of information as it is distributed across numerous devices and machines, while still allowing users to retrieve it seamlessly upon request, is a feat that was impossible until recently. It was made possible by the innovations of technological pioneers like Melvin James Bullen, Steven Louis Dodd, William Thomas Lynch, and David James Herbison.

Bullen, Dodd, Lynch and Herbison were, among others, members of a company dedicated to solving the difficult problems that limited the capacity of computer technology and the Internet, particularly problems concerning data storage. These engineers found innovative solutions for these problems and patented several technologies for data storage, including the ones at issue in this case. Many of the data-access feats we take for granted today are possible because of the data-storage inventions of Bullen, Dodd, Lynch and Herbison.

Considering the claims that these four individuals were brilliant "technological pioneers," you would think that searches on their names would turn up story upon story about their accolades, presentations at tech events, celebrations in their honor, etc. But, of course, that's not the case. All you seem to find are stories about these lawsuits, or information about their patenting activities. Maybe my search skills aren't up to par, or maybe these four guys were not "technological pioneers," but merely got some broad patents on the same basic solution that lots of folks skilled in the art were figuring out at the same time. The idea that such things wouldn't exist but for Bullen, Dodd, Lynch and Herbison is pretty ridiculous.

In case you're wondering, the patents in question are 7,197,662, 7,543,177 and 7,958,388, all of which are for "methods and systems for a storage system." The core of these patents goes back to a 2002 original filing date on the '662 patent. Hadoop and pNFS both show up on the scene around 2003, so it's about the same time. It certainly sounds like a bunch of folks who work with large amounts of data were all coming up with some obvious (to them) solutions. Two of them actually brought stuff to market. The others... well, they're suing.

Commercial space flights for tourists could be a routine program someday soon. With that in mind, there is some renewed excitement surrounding manned spaceflight, and for people with a few million bucks burning a hole in their pockets, an opportunity to go up into low earth orbit is not a ridiculous vacation idea. But before you pack your bags, you should check out some next generation spacesuit designs that claim to be more comfortable than ever before.

• A skintight spacesuit took some MIT researchers several years to develop -- and its BioSuit still hasn't been worn in space. The result is still a very fashionable and functional outfit that looks like it could have been designed for a Star Trek episode. [url]
• Bill Elkins, a designer of some Apollo-era space suits, talks about some of the old space suit designs and his experience testing them out. Elkins also holds a record for remaining conscious while sustaining 16.5 Gs of force in a big centrifuge. [url]
• Final Frontier Design has recently completed a Kickstarter project that raised over $20,000 for creating a soft spacesuit. One backer spent $10,000 and will get a custom prototype suit -- which might become the most expensive Halloween costume ever. [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post.

We've talked about how the Olympics are so focused on hiding any non-sponsor brand that they had officials in Beijing during the last Olympics tape over bathroom fixtures from non-sponsoring companies. And it was clear that this same sort of activity was set to continue this time around in London, including a specific law against "ambush marketing."

You may have heard the reports in London about the terrible security for the London Olympics that has left things in "absolute chaos," due to a failure to hire enough security personnel. In fact, there's talk of soldiers having to be called in to help. Given all that, it's interesting to find out that the Olympics do have a fully-staffed "brand police" force, which is heading around the city to carefully block any non-sponsor brands, and try to track down and kill off any kind of unpaid-for marketing.

Almost 300 enforcement officers will be seen across the country checking firms to ensure they are not staging "ambush marketing" or illegally associating themselves with the Games at the expense of official sponsors such as Adidas, McDonald's, Coca-Cola and BP....

Wearing purple caps and tops, the experts in trading and advertising working for the Olympic Delivery Authority (ODA) are heading the biggest brand protection operation staged in the UK. Under legislation specially introduced for the London Games, they have the right to enter shops and offices and bring court action with fines of up to £20,000.

So, if a terrorist attack happens to hit London over the next few weeks, at least we'll know that it wasn't sponsored by some non-paying brand.

We've covered how Lord Finesse and his lawyers appear to be using copyright to stifle criticism of Finesse's lawsuit against Mac Miller, and how Dan Bull was speaking out against that kind of censorship. It's been quite clear that Finesse's main reason for issuing the takedown was to stifle the criticism, since tons of videos using the same beat remain online -- including Mac Miller's.

But, of course, as we've learned over the years, when you try to stifle free speech online, a funny thing happens. It seems that plenty of people aren't at all happy about Lord Finesse's attempt to silence Dan Bull, and they're re-uploading copies of the video by the dozen. At the time I'm writing this, there are well over 100 other copies of the video uploaded. Here's just a sampling of what the search results look like:
Might have been wiser to have just kept quiet about the damn thing. By taking it down, Finesse has now called a hell of a lot more attention to Dan Bull's rather important criticism of his actions.

We've written a few times now about a horrifying patent dispute that literally threatens to silence a little girl. It involves an iPad app, called Speak for Yourself (SfY) that another company claims infringes on the patent it licensed. Prentke Romich Company (who makes come competing products, but not iPad software) and Semantic Compaction Systems (who licensed the patent to PRC) have been arguing that SfY infringes, and have even convinced Apple to remove the app from the App Store, despite no ruling in the case.

SfY had made a filing with the court, arguing that keeping its app out of the App Store was causing irreparable harm, while PRC/SCS has argued that there is no irreparable harm. But now, three children who are actual SfY users are apparently trying to intervene in the case to argue that having the app shut down represents irreparable harm to them, and thus the app should be put back for now.

If Speak for Yourself ceases to function when the iPad’s operating system is updated this fall, and Maya and Robert are suddenly left unable to communicate . . . that will be irreparable harm.

The panic, confusion, frustration, and sadness of these children as they tap their touchscreens, trying to open their “talkers,” and are met with blank screens . . . that will be irreparable harm.

It is definitely odd to see the users of a technology seek to intervene in a patent case like this, and if I had to guess, I'd say it's not actually going to work (and could possibly even backfire). But, at the very least, it should make the judge aware that there are more issues at stake here than just two organizations fighting over patents.

This is a little strange. We recently wrote about Peter Sunde's request for a pardon in which he lays out a fairly compelling argument for how the Swedish judicial system was railroaded into convicting him. Soon after that, a petition appeared on the site Avaaz in support of Sunde's request, with the idea being that if it obtained enough signatures, it would be delivered to the Swedish government. Avaaz was actually a very big player in the fight against SOPA, helping to stir up international interest against the bill late last year. But in a somewhat surprising move, as pointed out by TorrentFreak, the site has emailed users asking them if they find the Sunde petition "offensive, inflammatory or otherwise objectionable," in which case they may pull it down.

As TorrentFreak notes, this is odd for a variety of reasons. Beyond it being strange that anyone would think that a plea for a pardon is "offensive, inflammatory or otherwise objectionable," the petition site on Avaaz appears to have plenty of things that would be much more likely to cause offense to some people. TorrentFreak reasonably wonders why, of all the petitions on Avaaz, did it happen to pick out the Sunde one?

But I'd argue it goes even further than that. Why should Avaaz even be asking if petitions are "offensive, inflammatory or otherwise objectionable"? If someone posts such a petition, wouldn't it take care of itself by the fact that people won't sign it? Trying to pre-determine if a petition is acceptable seems to go against the very setup of an open petition site like Avaaz's.

After losing again for significant ethical lapses in sending subpoenas to identify individuals he was trying to shake down for payments -- at the same time the court had ordered him to wait for a fair hearing on whether those individuals could protect their anonymity -- Evan Stone apparently still does not realize the seriousness of what he did. In an interview with Ars Technica, he appeared both dismissive and defiant of the ruling against him, for which he owes tens of thousands of dollars:

“They just punted, and said you waived your arguments, so we have to affirm,” he told Ars Friday morning. “I'm ready for someone to take this up, this issue of copyright subpoenas in the Fifth Circuit. That's really the bigger issue. I'm just going to move on from this whole sanction thing. I think it's bullshit and I think it shouldn't have happened. I’d rather move on with my life than be right. That's what I’m going to do. We're going to do some more copyright subpoenas, and we're going to bring them before the district and see if they are accepted or denied and then bring them before the Fifth Circuit.”

This is an interesting revisionist history. First off, that's not quite what the court said. It did note that, through Stone's own incompetence as a lawyer, he waived any significant arguments against the sanctions, but that did not minimize the court's serious concerns about Stone blatantly defying its clearly-stated requirement of first holding a hearing to see if the anonymity of the users could or should be protected. Remember, the appeals court didn't just "punt," it also stated:

We conclude, however, that no miscarriage of justice will result from the sanctions imposed as a result of Stone’s flagrant violation of the Federal Rules of Civil Procedure and the district court’s orders. Stone committed those violations as an attempt to repeat his strategy of suing anonymous internet users for allegedly downloading pornography illegally, using the powers of the court to find their identity, then shaming or intimidating them into settling for thousands of dollars--a tactic that he has employed all across the state and that has been replicated by others across the country.

To pretend this is merely punting because of Stone's own failings as a lawyer underplays both how he screwed up in handling his own appeal, as well as the court's concerns with Stone's ethical lapses that resulted in the sanctions in the first place.

That he's going back to sending out subpoenas and pretending that what just happened to him is no big deal is somewhat stunning. Of course, what's even more stunning is that anyone would hire Stone to do more copyright trolling. Whatever you think of the practice, Stone has clearly demonstrated -- and been told by a court -- that he's not doing it right. Why would anyone hire that guy to do the same thing again?

Stone also apparently tried to pin the blame on Verizon for the mess that he's in. Again, in his discussion with Cyrus Farivar at Ars:

But beyond his questionable legal tactics, Stone lamented the fact that larger ISPs, like Verizon, (against whom he filed a subpoena in late May 2012 over a pirated work of anime in an ongoing case) fight him “tooth and nail,” while smaller ISPs simply “cough up the user information.”

And, he argues, Verizon isn’t protecting their users out of principle or out of an interest in legal fairness, but rather to protect their highest-paying customers, which, according to Stone, are pirates.

That's a pretty obnoxious statement and there's not much support for it in real life. Verizon protecting its users' privacy against lawyers trying to identify them for a trolling operation isn't about protecting revenue, it's about protecting individuals' basic rights against bogus legal threats and people who abuse the court system as a business model.

Right after the EU Parliament somewhat emphatically rejected ACTA, there was a report saying that ACTA was pretty much dead in Mexico as well -- especially since the Congress there had been against ACTA since before it was "cool" to be against ACTA. However, the very next day, the Mexican government surprised an awful lot of people by signing ACTA anyway.

Of course, the agreement still needs ratification, and that seems like an uphill battle. However, the Mexican IP Office -- major backer of ACTA -- is now claiming that it believes that the Mexican legislature can be convinced to sign on. Of course, it would help if the Mexican IP Office was even the slightest bit intellectually honest. For example, in explaining its reasons for signing on, it points out that the EU signed on -- which is kind of funny coming so soon after the EU Parliament's wholesale rejection of ACTA. Seems like that would be a point worth mentioning, rather than implying that ACTA was going to be implemented in the EU. This move still has the US's fingerprints all over it. The US needed some sort of "win" for ACTA these days, and coming so soon after the US allowed Mexico to enter TPP negotiations, it's hard not to think that there was some horse trading going on here.

Chuck Close is an interesting artist. One of the most famous, most successful artists alive today, he paints giant portraits of people based on photographs. He does so by enlarging photographs, dividing up the images, and copying smaller areas square by square. The effect is quite striking. A couple years ago, there was an astoundingly fascinating interview of both Close and famed neuroscientist Oliver Sachs (who the movie Awakenings was based on) talking about how both have face blindness, in that they simply cannot recognize faces. Given that, it's interesting to see that Close's entire career is based on painting faces.

Scott Blake is a long-time devoted Chuck Close fan -- and also a skilled computer artist. In 2001 he had the idea to create a "Chuck Close Filter," which would take images and turn them into something that looks like a Chuck Close image. While it took a lot of work, and was showcased at an exhibit in 2002, he said that computers weren't fast enough to make use of the filter in realitime at the time. In 2008, computers were fast enough that they could take an uploaded photo and automatically generate a "Chuck Close filtered version," so he set up a site called FreeChuckCloseArt.com. Two years later than that, Close threatened to take legal action against him. Blake has now detailed the whole thing in a long blog post. Here's the exchange between the two, though, reading the entire story (and seeing the images) is absolutely worthwhile:

I never intended to rip off Chuck Close, so when he emailed me in November 2010 threatening legal action, I did exactly what he said and took my filter offline immediately. Still, I feel obligated to point out that Close is the 14th richest living artist, worth a staggering $25 million. I really don’t think any work I make is going to “jeopardize” his career or his livelihood.

Here is what he wrote (in all caps):

YOU DO NOT HAVE PERMISSION TO USE MY WORK WHICH IS COPYRIGHTED. NOR DO  WISH TO BE ASSOCIATED WITH YOUR PROJECT. YOU MUST SHUT DOWN YOUR WEBSITE IMMEDIATELY OR I WILL BE FORCED TO TAKE LEGAL ACTION.

I replied:

I have attempted to get in touch with you. I think your art is great. I drove 10 hours to see your exhibit at the Seattle Art Museum in 1998 and was blown away. I wish we had met under better circumstances. I understand you do not want me to continue my Free Chuck Close Filter, but I would like the opportunity to talk with you before you take any legal action. I believe my website is not copying your art, but rather is a logical extension of the creative process. Please consider talking with me before you make legal decision, from one artist to another.

Close wrote back:

Even if your motives are not bad, I still do not want my work trivialized. I must fight you because if I know of your project, and do nothing to exercise my legal rights, that will put me in a position where I can’t fight the next, even more egregious usage of my copyrighted image and use of my name. It may be an amusing project and many people might like it, but it is MY art that is trivialized, MY career you are jeopardizing, MY legacy, which I have to think about for my children, and MY livelihood. I must fight to protect it. I hope you will realize the harm you are doing me and my work that you claim you admire and voluntarily shut down the site so as to avoid a law-suit.

I responded:

I respect your decision, and I have shut my free online filter down. I feel obligated to help stop this from happening again. I believe it is better to respond to the situation than delete the project without any explanation. Please review http://www.freechuckcloseart.com.

He wrote:

Thank you so much for your decision. I must say I didn’t expect it. It means a lot to me that you were able to understand my point of view. Thank you. Im in Germany till the end of December, but after I’m back and if you are in New York City, come by and say hello.

The last thing I said to him was:

Thank you for accepting my sincere apology, and especially for inviting me to your New York City studio. I live in Omaha, Nebraska, but I might make a special trip just to see you.

I have trouble believing there's a realistic copyright claim here. If anything, I'd think he would have a stronger publicity rights claim (or possibly trademark name if he's trademarked his name, though a quick USPTO search fails to find a trademark on Chuck Close), but publicity rights claims are a bit messy (and vary state to state) so even that's not entirely clear. But the larger point is how shameful it is for Close to legally threaten another creative individual for doing something that, if anything, would inspire greater interest in Chuck Close's work. The idea that the filter "jeopardizes" Close's career makes no sense at all. Who is really going to see a filtered image and suddenly think they no longer need to see Close's real work? If anything it's likely to inspire the exact opposite.

Separately, Close is grossly misinformed in saying that he has to take legal action or he loses the ability to do so with others. While something sort of like that (but not quite) is true with trademark law, it's entirely permissible to ignore infringement under copyright (or even to issue free licenses to those you like).

But the weirdest claim is that this hurts his "legacy." I would argue that being an absolute jerk to someone who created a filter as an homage to you hurts your legacy a hell of a lot more than the filter itself.

Blake notes that while he has shut down the site, he has a plan. Recognizing that eventually Close's works will go into the public domain, he's made plans for the filter to be re-released in 100 years after Close's death, on the assumption (perhaps not a good one due to extensions) that the works will be public domain by then:

I asked my lawyer friend if I could release my Chuck Close Filter 100 years after Close dies and his copyright runs out; my lawyer assured me that I could do so without fear of reprisal. I have not made Close aware of my plans, but if he finds out, I would be surprised if he wasn’t insulted. Don’t get me wrong, I know we will both be dead in 100 years, but the point is that our art will live on, and that is what matters to me most. We all have a legacy to think about; Chuck Close isn’t the only one.

Blake also challenges some of Close's claims of originality, including his argument that his paintings came along before computer generated art. Blake shows that's not true, and even shows some compelling evidence that there's at least a greater-than-zero chance that Close, in fact, was inspired by computer generated art that pre-dated his own. Either way, Blake has decided that the best plan at this point -- if he can't actually offer a Chuck Close filter -- is to make sure the world knows that Chuck Close acts this way towards fans and those who create tools that celebrate him.

I believe my art is fair use, but I don’t have a war chest to back up that assertion in a courtroom, so the wealthy bully wins by default. My only recourse is to publicize my defeat in order to shine a light on these types of situations. My hope is that Chuck Close develops a sense of shame and regret, realizes his mistake and offers up an apology. I want this article to serve as a point of reference for current and future artists. The worst part about this whole mess is that it makes established visual artists like Close seem petty. By not embracing new and interesting ways of making art, he is contributing to the widening of the generation gap. His irrational fear of computers has made him wildly out of touch with my generation and generations to come. I feel he singled me out because I choose to work in a medium that he finds inferior.

I think Close is confusing enterprise with creativity; they are not the same and in some cases can work against one another. In the end, I believe Close’s misguided and hypocritical actions will do more harm to his legacy than any so-called “derivative art” could ever do. His behavior has left me no choice but to carry out my 100-year plan.

It's always disappointing to see artists harm the works of others with excessive copyright claims. There's simply no reason that Close needed to act this way, and count me among those who has shifted from being a fan of Close's work to someone who just isn't interested in supporting him in any way after actions like this.

We've discussed how the government often seems much more focused on silencing leaks of information, rather than recognizing that those leaks are often highlighting serious misconduct. The latest example involves the Food and Drug Administration (FDA), who apparently started trying to find the source of a leak, but in the end started collecting thousands of emails to try to stifle all sorts of criticism of the FDA, as revealed by the NY Times over the weekend.

What began as a narrow investigation into the possible leaking of confidential agency information by five scientists quickly grew in mid-2010 into a much broader campaign to counter outside critics of the agency’s medical review process, according to the cache of more than 80,000 pages of computer documents generated by the surveillance effort.

Moving to quell what one memorandum called the “collaboration” of the F.D.A.’s opponents, the surveillance operation identified 21 agency employees, Congressional officials, outside medical researchers and journalists thought to be working together to put out negative and “defamatory” information about the agency.

The details show that the FDA installed key logger software on the computers of their own scientists, tracked the personal emails they wrote to others, and tracked documents they copied to key drives. Now, you can make a reasonable argument that since these were work laptops, the FDA has every right to track the usage, but it seems pretty clear that the FDA went really far here, and it wasn't just about stopping leaks, but about trying to stifle criticism and whistleblowing.

In fact, much of the evidence suggests that this absolutely was an attempt to blow the whistle on faulty review procedures by the FDA, that resulted in the approval of medical imaging devices that weren't actually safe. And, apparently, the complaints by the whistleblowers were convincing enough that there's now a Congressional investigation into "a substantial and specific danger to public safety" from this activity.

If the FDA were functioning as it was supposed to, it would have seen these complaints as a reason to investigate its own activities. Instead, in the supposed attempt to "stop leaks," the FDA used this info to try to squelch the attempt to have its own practices investigated.

On Friday, we wrote about the ridiculous situation in which Lord Finesse issued a takedown for Dan Bull's video that was critical of Finesse's lawsuit against Mac Miller. Over the weekend, Dan decided to do a "documentary" style video about the situation, entitled CENSORED BY COPYRIGHT. It's eight minutes, and worth watching in its entirety:
It does a good job laying out both the legal (fair use, fair dealing) and moral (culture, the nature of hip-hop building on itself) reasons for why Dan believes he's in the right. But it also highlights the chilling effects at play. Dan can put in a counterclaim, but if he does so he risks (1) a lawsuit from Finesse and (2) losing his entire YouTube channel, with which he's spent years building a massive following... and (1) is not a particularly far-fetched threat, given that Finesse did, in fact, just sue Mac Miller for $10 million. Clearly, he's got lawyers and he's not afraid to use them.

In the meantime, Lord Finesse posted something on his own Facebook account, implying that Dan Bull has no fair use claim, because he has ads on his YouTube channel. Of course, that's not quite how fair use works. While the fact that Dan might make some money could play into whether or not it's fair use, the fact that you monetize your work does not automatically mean you lose fair use protections. As Dan notes in his own comment, news organizations -- magazines, newspaper, TV news and radio -- are all for-profit ventures, and are probably the biggest users of fair use. What Dan was doing here was providing commentary on the news in the same way that a news program or magazine might.

So while Finesse claims that "there's a difference" between presenting an opinion and making money on ads, that's hard to square with reality, where lots of people make money while also presenting their opinions.

Perhaps one of the most famous patent lawsuits -- which really highlighted the whole patent troll problem -- was the case of NTP vs. RIM, which ended with RIM paying over $600 million to settle the case, even as the USPTO was rejecting NTP's patents. Since then, RIM has been involved in a number of other patent lawsuits as well, including one that it lost last week against "Mformation Technologies." RIM has been told to pay up another $147.2 million in this case.

Of course, what some people forget is that RIM brought much of this on itself. Before NTP even came on the scene, it was RIM who started suing a bunch of other companies for patent infringement, based on its broad portfolio of patents around wireless email and mobile devices. On top of all that, RIM's business is collapsing. The company is fighting for relevancy as its latest operating system has been delayed -- and there's growing evidence that even once it comes out, no one's going to care about it.

RIM can try to put a nice spin on things, but it seems clear that the company is in serious trouble. Perhaps, next time, it will focus on improving its products more than getting caught up in the patent game. Yes, many of these more recent lawsuits came from it getting sued, but there's no doubt that RIM drew a lot of attention to itself early on with its own patent lawsuits against others.