Last summer, we noted that there was an interesting "sideshow" in the patent dispute between Oracle and Google -- a question of whether or not Java's APIs are covered by copyright. That "sideshow" has become the main attraction now that the trial has started and many of the patent claims have been kicked out.

Oracle has been quite public with its argument (pdf), which is mostly based on taking snippets from Google emails that suggest a need to license Java. The favorite of the bunch is this one:

They also point to some snippets of code that do appeared to be copied:


If you just see that side of it, you might be convinced, but the details suggest a much less convincing story. First off, there are serious concerns about whether or not an API even can be covered by copyright. In fact, before Sun was acquired by Oracle, Sun's own CTO had said that "internet specifications are not protectable under copyright," which (you might think) gives Google an implied go ahead to make use of the API. Furthermore, many of the email snippets that Oracle presents are taken out of context -- they show little snippets of big emails and pull from very very different time periods -- ranging from 2005 to 2010, when different factors applied. Oracle also scrubbed a blog from former Sun CEO Jonathan Schwartz in which he warmly welcomed Google to the Java family when the company launched Android.

Perhaps more damning: Larry Ellison himself in 2009 at the JavaOne event spoke about Google's Android development and how they were contributing code back to Java. Ellison himself was put on the stand and appeared to contradict his own depositions when it came time to discuss the specifics of the copyright. That can't go over well. Not only that, but he stumbled, and claimed he was "not sure" when asked specific questions:

On cross-examination, Google came out firing and the room got tense quickly. “Do you understand that no one owns the Java programming language?” lead counsel Robert Van Nest asked.

Ellison began a longer answer, but Judge William Alsup interrupted him and said it was a “yes or no” question. Finally Ellison said, “I’m not sure.”

“And anyone can use it without royalty?” Van Nest followed up.

“I’m not sure,” Ellison said again.

Then Van Nest showed a video of Ellison receiving the same question on a deposition video and answering “That’s correct” to both.

Oracle's response, of course, will be that it just meant for developing apps, not for using the API -- but its other statements are a lot less clear on that. Either way, it seems pretty clear that Sun gave an implied open license to these things, so to come back now and insist otherwise is pretty questionable. Furthermore, there still are questions as to whether or not an API can actually be covered by copyright at all.

Separately, Oracle keeps talking about just how much work it is to create APIs, and even points to some Google statements about the difficulty of doing so. That's smoke and mirrors. Difficulty has no bearing on copyright law. It's kind of surprising that Oracle's lawyers would even bring it up, as "sweat of the brow" arguments won't get very far. Hell, even if it biases a jury, it would get rejected on appeal. It seems like Oracle's strategy here is just to confuse the jury and go for guilty by association because they're going to have trouble showing actual guilt.

As for the specific code snippets shown above, those a few lines out of 50,000 or so files. Under copyright there's a defense known as de minimis copying, if you're just found to have copied a very tiny portion of something. It seems like that might apply here as well.

Also, you may have heard stories about the results of this trial potentially being worth billions of dollars or something, but that was before most of the patents got thrown out. The patents left over aren't worth very much at all, and the end result means that if Oracle wins, it'll likely get less than $100 million. That's still a significant sum, but it's a lot less than what Oracle had hoped to get in this lawsuit.

In the end, as it seemed from the beginning, Oracle's case looks pretty weak (and getting weaker).

Battery technologies haven't quite achieved the same kind of Moore's Law progress as other kinds of electronics. Being able to store energy is still incredibly important, so there are plenty of projects trying to figure out better ways to store up electricity efficiently. No one has a complete solution, but here are some interesting attempts to manage energy-use fluctuations.

• Google is saving on its power bills for a datacenter in Taiwan by storing up thermal energy in ice. Using a giant ice maker retro-fitted to the datacenter's AC systems, Google can store up energy at night and cool its operations during the day when electricity is more expensive. [url]
• Beacon Power built a 20-megawatt energy storage system based on flywheels in 2011. Unfortunately, the company went bankrupt that same year, but the firm's assets have been acquired by private equity firm Rockland Capital. [url]
• MIT professor, Donald Sadoway, has invented a huge battery for electrical power grids that can handle the huge loads -- and is designed to be "dirt" cheap. Sadoway quips, "We choose to work on gridlevel storage not because it is easy but because it is hard." [url]
• To discover more stuff on alternative energy, check out what's currently floating around the StumbleUpon universe. [url]  

As always, StumbleUpon can also recommend some good Techdirt articles, too.

Last week, the EU Rapporteur on ACTA, David Martin, announced he would recommend that the European Parliament reject the treaty. He has now made good on that promise in his report, available in draft form (pdf):

The intended benefits of this international agreement are far outweighed by the potential threats to civil liberties. Given the vagueness of certain aspects of the text and the uncertainty over its interpretation, the European Parliament cannot guarantee adequate protection for citizens' rights in the future under ACTA.

Your rapporteur therefore recommends that the European Parliament declines to give consent to ACTA.

It's interesting to note the main areas of ACTA that he found unsatisfactory:

Unintended consequences of the ACTA text is a serious concern. On individual criminalisation, the definition of "commercial-scale", the role of internet service providers and the possible interruption of the transit of generic medicines, your rapporteur maintains doubts that the ACTA text is as precise as is necessary.

However, Martin does not have a problem with the underlying idea of ACTA:

The problems which ACTA seeks to address are real and growing. Counterfeiting and piracy have increased substantially and continue to do so. The consequences of the growth in these illegal activities range from economic losses to health and safety dangers. The European Union has much to lose without efficient and enforced global coordination in copyright protection.

As a result, he concludes as follows:

Following the expected revision of relevant EU directives, your rapporteur hopes the European Commission will therefore come forward with new proposals for protecting IP.

This seems to be a reference to the imminent revision of IPRED ("intellectual property rights enforcement directive"). The European Commission has already published what it calls its "indicative roadmap" (pdf) for IPRED, so it's clear that it is working on a new proposal. Martin's closing comment suggests that it may get an easier ride through the European Parliament than ACTA, which could encourage the Commission to incorporate some of ACTA's ideas in IPRED 2 -- before moving on to ACTA 2.0.

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With the legal dispute over ebook pricing going on, one thing we've heard over and over again from the traditional publishing industry and their supporters is that higher prices for ebooks make sense because of all of the "costs" that the publishers have to cover. This is a fundamental error in how pricing (and economics) works. It reminds me of the MPAA folks who demand to know the business model for making $200 million movies. Years ago, someone who understood these things taught me why cost-based pricing will always get you into trouble. If you start from the overall pricing, including overhead and other fixed costs, then you're not basing the price on what the consumer values -- and, more importantly, you're taking away your own incentives to become more efficient and decrease costs. Instead, you're just "baking them in." But the most important reason not to base pricing on overhead costs is that your competitors won't do that, and they'll under cut your price and then you're in serious trouble.

That moment of reckoning is coming for book publishers, even if they don't realize it yet. David Pakman, who watched all of this happen in the music industry for years, is pointing out that publishers are fooling themselves if they keep trying to rationalize higher ebook pricing:

In all the discussions about why book publishers demand that eBooks should be $15 and not $10, they say it is because they cannot afford to sell books at $10. That is, they cannot cover their legacy cost models on that number. Right. Which is why you must rebuild your cost structure for a digital goods industry with far lower prices. You start by paying your top execs much less than millions of dollars a year. Then you move your offices out of fancy midtown office buildings. Why should eBooks cost $15? Amazon is far more of an expert on optimal book pricing. They have far more data than publishers, since they experiment with pricing hundreds of thousands of times a day across millions of titles. Amazon can tell you the exact price for a title that will produce the most number of copies sold. Amazon is pretty sure that number is closer to $10 than to $15. Yes, they want to sell more Kindles. And they believe that lower eBook prices mean more eBooks sold which means more demand for Kindle. The negative coverage of Amazon is centered on them selling eBooks below cost in order to reach the $10 price point. But that is a function of publishers setting the cost higher than $10. If the profit-maximizing price for an eBook is $10, then publishers must adapt to set a wholesale price lower than that, even if it means your legacy cost structure doesn’t allow it. And that’s the rub.

The public seems much more interested in lower prices, not higher prices. You can understand why the publishers don't like it, but they really ought to learn how pricing elasticity works. They can make a lot more money with more optimal pricing.

We just wrote about the bizarre process in the Netherlands, where the Dutch anti-piracy group BREIN was able to get a court injunction to order the Dutch Pirate Party to stop hosting a proxy service that redirected people to The Pirate Bay, and then tried to get the Party in trouble for merely pointing people to links of other proxies that could take them to The Pirate Bay. All of this went way beyond the initial order barring access to The Pirate Bay and (more importantly) was done without letting the Dutch Pirate Party have its side heard by the court. There was an interesting discussion in our comments, in which one individual insisted that completely changing the nature of the original injunction was no big deal, and there was simply no reason for the Pirate Party to be heard from, since there was no adversarial issue to adjudicate. That, of course, is ridiculous -- because a political party was being censored, way outside the bounds of the original injunction.

Thankfully, a court in The Hague seems to be realizing that BREIN keeps changing the rules after the fact. It has said that BREIN can't demand that the Dutch Pirate Party take down a general proxy -- as opposed to the specific reverse proxy that only went to TPB. The more general proxy has to be allowed. Next week, the court will explore more fully if the specific proxy really should have been taken down as well. It's good to see the court recognizing that just because BREIN wants to (impossibly) block all access to TPB, it doesn't get to play whac-a-mole by continually changing what the ruling actually said.

I've been a big fan of Penn & Teller since I was a kid, so I'm pretty disappointed to learn that Teller (the silent one, whose name, it turns out, is Raymond Teller) is suing another magician for copyright infringement for (a) doing a similar trick that may have been based on a Teller trick and (b) offering to sell "the secret" to that trick for around $3,000. There was a YouTube video of this other magician, Gerard Dogge, who goes by the stage name Gerard Bakardy, showing the trick, which Teller had removed with a DMCA takedown notice. Dogge (who is Dutch, but apparently performs in the Canary Islands at a hotel) and Teller then had a phone conversation, where Teller offered money to Dogge to stop performing the trick and to promise not to reveal the secret -- but they disagreed over price.

This is disappointing in a number of different ways. Years ago, we wrote about an academic paper that looked at how the magic community policed itself without having to resort to the blunt instrument of intellectual property lawsuits. As Tim Lee noted at the time:

Instead, the magic community uses social norms to reward those who discover new magic tricks and punishes those who disclose them to non-magicians. Because magicians rely so much on their professional network of other magicians to learn about new tricks, new equipment, and new performance opportunities, maintaining a good reputation within the magic community is essential to the career of a successful magician. A magician who uses another magician's trick without giving the originator proper credit, or who reveals secrets to non-magicians, is shunned by other magicians. That kind of ostracism can be a much better (not to mention cheaper) way of disciplining wayward members than getting the lawyers involved.

Unfortunately, it looks like Teller has decided to go much further than that. While it is true that he registered a copyright on the trick, illustrated with the following amusing illustration, it's pretty ridiculous for a magician to claim "ownership" of a trick:


I recognize that magicians fear losing "the secret" to their tricks, but that's pretty silly. Magic is entertainment, and people like going to see it not because they're "fooled" but because of the showmanship of the entertainers. And, Penn & Teller's monstrous success has much more to do with the fact that their acts are incredibly entertaining -- rather than the skill of their tricks. Even if someone knew the secrets to all of their tricks, it wouldn't make the show any less enjoyable.

Furthermore, it's not even clear that there's actually infringement here. While certain specifics about the performance may be copyrightable, the basics of just doing a trick shouldn't be subject to copyright. It's much more narrow. If anything this seems like yet another attempt to abuse copyright law to stifle some form of "competition," rather than for any legitimate copyright-related purpose. It's just disappointing that someone like Teller would do such a thing.

It appears that Congress still doesn't get it. Rep. Mike Rogers, the sponsor of the bad CISPA bill that puts your privacy at risk, really doesn't seem particularly concerned about the protests that have been happening online this week. He referred to them as being "like turbulence on the way down to landing" for the bill. He also said that he fully expects the bill to easily pass next week when its brought to the floor.

What really comes through in the article -- which mostly talks about how Rogers has been supposedly working with Google to change some of the language in the bill to make it more acceptable -- is how little concern Rogers has for the public. Instead, most of the article just talks about how he's been working with tech companies to make sure they're okay with the bill. And while that's a start, it's no surprise that lots of tech companies would be okay with CISPA, because it grants them broad immunity if they happen to hand over all sorts of private info to the government.

But to then call the protests mere "turbulence" is pretty damned insulting to the actual people this will impact the most: the public, whose privacy may be violated. While we appreciate Rogers' willingness to amend the bill, it seems clear that there are still major problems with it, and Rogers does not seem to be actually listening to the privacy concerns of the public -- just the various tech companies.

In the meantime, the protests continue, and if Rogers thinks they're mere "turbulence" then it appears that not enough people are speaking out. The folks at Fight for the Future have put together an excellent page to make it easier to speak out, over at CongressTMI.org. At the very least, is it that difficult for Congress to present a real reason why this bill is needed? Bogus stories of planes falling from the sky or evil Chinese hackers really aren't cutting it. Perhaps Congress should talk to some of the experts who note that Congress doesn't understand the tech enough to regulate it properly. As privacy expert Jim Harper notes:

"Congress has no particular capacity or knowledge of how to do cybersecurity," Harper says. "It's not a choice between two different versions in the House and two different versions in the Senate. The question is still open: is Congress capable of doing any good here?"

Unfortunately, in the mad dash to pass these bills (which appear to be much more about who gets to control multi-billion dollar "cybersecurity budgets" than anything else), no one in Congress seems willing to address the basic question of what problem this really solves.

We've talked repeatedly in the past about how even if a company got patents for solely defensive reasons, down the road, those patents can end up in the hands of trolls, who abuse them to hinder real innovation. If you talk to engineers -- especially software engineers -- in Silicon Valley, this is one of the many things they absolutely hate about patents. But, because companies often feel the need to stockpile patents as a defensive means of warding off patent lawsuits, many engineers and companies do so out of a sense of obligation.

However, it appears that Twitter is thinking differently about this, and has announced that it will be using its new Innovator's Patent Agreement to guarantee that any patents obtained by employees at Twitter (past or present) grant lifetime control to the actual inventors, to prevent the patents from being used offensively against others.

One of the great things about Twitter is working with so many talented folks who dream up and build incredible products day in and day out. Like many companies, we apply for patents on a bunch of these inventions. However, we also think a lot about how those patents may be used in the future; we sometimes worry that they may be used to impede the innovation of others. For that reason, we are publishing a draft of the Innovator’s Patent Agreement, which we informally call the “IPA”.

The IPA is a new way to do patent assignment that keeps control in the hands of engineers and designers. It is a commitment from Twitter to our employees that patents can only be used for defensive purposes. We will not use the patents from employees’ inventions in offensive litigation without their permission. What’s more, this control flows with the patents, so if we sold them to others, they could only use them as the inventor intended.

As Twitter notes, this is "a significant departure" from how just about every other company handles patent assignments. Along those lines, it's planning to evangelize this idea to other tech firms as well -- and I wouldn't be surprised to see a bunch of others jump on board. The basic idea makes a lot of sense. Twitter has also posted the full agreement to Github and put it under a Creative Commons license.

The method by which this works is pretty creative. Basically, if the actual patent holder tries to use the patent offensively without first obtaining the permission of the inventor, the agreement allows the inventor to issue a license to the entity being sued:

Company hereby grants a perpetual, worldwide, non-exclusive, royalty-free, no-charge, irrevocable license under the Patents to the Inventors, along with the right to sublicense as further described herein, solely so as to enforce the promises made by Assignee in paragraph 2. The Inventors’ right to sublicense is explicitly limited herein to those rights necessary to enforce the promises made by Assignee in paragraph 2. Accordingly, if Assignee asserts any of the Patent claims against any entity in a manner that breaks the promises of paragraph 2, the Inventors, individually or jointly, may grant a patent sublicense to the entity under the Patents, the scope of the sublicense being limited herein to those rights necessary to enforce the promises made in paragraph 2

Of course, how much do you want to bet that an agreement like this violates someone's patent somewhere?

Either way, kudos to the Twitter team for not just doing what everyone else does, despite the fact that everyone hates it. Companies that actually recognize that "standard operating procedures" are a problem are plentiful. Those that actually do something different because of it, are rare.

For most legal scholars, the Supreme Court's decision to uphold retroactive grants of copyright protection for formerly-public domain works in Golan v. Holder came as little surprise. The Court made it clear that it was doubling down on the framework set out in Eldred v. Ashcroft, largely deferring to Congress on these matters and giving wide latitude to what comports with the "traditional contours of copyright law." What received less attention in the decision was the Court's discussion of how a retroactive grant purportedly "promote[s] the progress of Science" as required by the Copyright Clause. And while it may seem like a largely academic point to some, the Court's handling of the issue may actually be symptomatic of a legal system whose scholarship and case law have yet to catch up with the market realities of the digital age (or worse, may be actively ignoring them for political purposes).

In a short six-paragraph discussion at Section II(C) of the majority opinion in Golan, the Court tackles the contention that copyright legislation only serves its Constitutional aims if it spurs the creation of new works (which a retroactive grant, applying only to works already in existence, obviously does not):

Nothing in the text of the Copyright Clause confines the "Progress of Science" exclusively to "incentives for creation." [Perlmutter, Participation in the International Copyright System as a Means to Promote the Progress of Science and Useful Arts, 36 Loyola (LA) L. Rev. 323 (2002)], at 324, n. 5 (internal quotation marks omitted). Evidence from the founding, moreover, suggests that inducing dissemination—as opposed to creation—was viewed as an appropriate means to promote science.

The reasoning here, which is fairly compelling, is that it's not enough for a work to merely be created -- for it to actually "promote the Progress of Science," it has to be made adequately available for public consumption. Historically, a grant of copyright would incentivize this by providing the opportunity for monopoly profits to offset the cost of wide retail distribution. Problematically for the Court, however, this arrangement is no longer the most effective means to distribute a work; The Internet Archive told the Court as much in its amicus brief for Eldred:

Jack Valenti, President of the Motion Picture Association of America once said: “A public domain work is an orphan. No one is responsible for its life…it becomes soiled and haggard…” Jessica Litman, Digital Copyright 77 (2001). Before digital technology, Valenti may have had an argument – one could argue that it was so expensive to store, reproduce, and distribute physical works that keeping them out of the public domain may have resulted in more availability than letting them in.

With digital technology, however, this argument can no longer stand. Indeed, even Valenti now agrees that digital technology possesses the capacity to makes flawless copies trivial and worldwide distribution instantaneous. This ease of publishing and distributing means that material in the public domain is universally available.

It seems logical that, in an age where cheap hosting/bandwidth and peer-to-peer services have all but eliminated the transactional costs of making work available online, the dissemination of public domain content would be most widely promoted by not allowing monopolist copyright holders to place conditions on their replication and distribution (monetary or otherwise). Yet the Eldred majority ignored this sea-change in distribution methodology, deferring to Congress's belief that increasing copyright protection "provide[s] copyright owners generally with the incentive to restore older works and further disseminate them to the public" -- a belief based on hearings held in 1997, when the Internet had less than 70 million users and Congress had no idea how far public domain distribution methodologies would come.

In fact, surveying the various authorities marshaled by the Supreme Court to link copyright law with promoting greater distribution of works, it is striking how little post-Internet thought has been taken into account. The only actual case cited by Golan for the Court’s proposition (aside from Eldred) is Harper & Row, Publishers, Inc. v. Nation Enterprises (1985), which not only predates the publicly-available Internet, but concerned balancing the monetary incentive for a copyright owner to distribute (right of first publication) with the efficacy of that distribution (fair use quotation) – an economic analysis tacitly admitting that dissemination is bolstered by removing copyright protection. Justice Breyer’s dissent in Eldred reinforces this distinction, explaining that the Copyright Clause “assumes that it is the disappearance of the monopoly grant, not its perpetuation, that will, on balance, promote the dissemination of works already in existence.”

If it seems odd that the Supreme Court put so little critical thought into what promotes the widest distribution of a work in the digital age, the second-to-last paragraph of Section II(C) in Golan may be instructive. There, the court reveals the true engine of its decision:

A well-functioning international copyright system would likely encourage the dissemination of existing and future works. See URAA Joint Hearing 189 (statement of Professor Perlmutter). Full compliance with Berne, Congress had reason to believe, would expand the foreign markets available to U. S. authors and invigorate protection against piracy of U. S. works abroad, S. Rep. No. 103-412, pp. 224, 225 (1994); URAA Joint Hearing 291 (statement of Berman, RIAA); id., at 244, 247 (statement of Smith, IIPA), thereby benefitting copyright intensive industries stateside and inducing greater investment in the creative process.

Here we see the focus of the court is less on the restored works and more on protecting the wider copyright industry; by placating the origin countries of restored works, Congress believes it is protecting future works in those territories from less-than-national treatment. These theories (offered up by current and former counsel to beneficiary trade associations and cited as such by the Court) are not necessarily inaccurate, but reinforce that Congress’s primary goal in plucking works out of the public domain is not to actually promote their widest distribution. Rather than admitting this, however, the Court contorts prior case law and, indeed, logic itself to pretend that a paywall will somehow make restored works more accessible.

To me, this is what is most upsetting about the Golan decision. If the Court wishes to defer to a starry-eyed Congress that believes in attenuated links between copyright restoration, foreign goodwill, and market opportunities, it is entitled to do so. But it should at least be willing to admit that, in isolation, the restoration itself does nothing to “promote the Progress of Science.” To the contrary, it locks up works that have already been created and could be disseminated more widely than ever possible under the restrictions of copyright law. Instead, the Court doesn’t give public domain advocates a leg to stand on, and perpetuates a Luddite understanding of distribution methodology to do so. Hopefully, the Court will someday come to realize that a public domain work is no longer an orphan – the entire Internet is its family.

Via Parker Higgins we learn of a graphical representation of the revolving door between the MPAA and the federal government from geke.us, purveyor of useful visuals to explain economic truths:
Not all of these are current, of course. Dan Glickman left well before Chris Dodd showed up, for example Still, it does give you an idea of why the MPAA always seemed to get its way with the government.

One of the more stunning things about the defeat of SOPA/PIPA and what appears to be the likely defeat of ACTA, is how the traditional copyright maximalists still haven't figured out what has happened or what it means. It seems positively unfathomable to them that the public got fed up with their shenanigans and said "enough is enough." That's why their first reaction was to blame companies and lobbyists -- because that's the only way they function. Now they're trying to figure out how to fight back.

Last week, at the Fordham IP conference, which is a yearly gathering of mostly IP-maximalists, it seems that this attitude was on display in full force. Rebecca Tushnet's recap of some of the sessions is really quite stunning -- including a comment from a Fordham professor who apparently claimed that democracy was a bad thing because the public went against strict IP rights. As Tushnet noted:

Hugh Hansen suggesting that democracy was a really bad thing because citizens think short term and elites give us rights, and that’s why IP can only be protected without democracy, or as he put it, with "filters." (If by “us” you mean white men holding property. I do not believe I am exaggerating: he pointed to revolutionary Virginia as the great model for providing rights and the rest of American history as decline as things were turned over to the greedy proles. I obviously beg to differ, and this November the Commonwealth will indeed let me vote. I understand that Hansen likes to provoke, but the ugliness of his claims should not go unremarked.)

Of course, this kind of elitist attitude seemed to permeate the event. Jamie Love alerted us to the news that European IP professor Mihaly Fiscor compared ACTA protests to Nazi rallies -- thus invoking Godwin's Law and ensuring that any reasoned debate will not be allowed.

One thing became clear: there is not even the slightest concern that perhaps the public has a point. No, sir. It must be that they're too clueless or uninformed to know what's best for them. Back in Tushnet's post above, she describes how Steve Metalitz -- a maximalist lawyer whose fingerprints appear on lots of ridiculous proposals, including ACTA -- said that the problem is that people don't know enough to know that they have to respect copyright for our own economic well-being. Hugh Hansen, the same guy who is apparently anti-democracy, went with the old trope that should automatically disqualify you from being taken seriously in these debates, by saying that "consumers will only be moral if they're taught that copying is wrong. Copying is just like shoplifting." The thing is, that line has been "copied" so many times, I guess we can conclude that Hugh Hansen is one immoral bastard. Of course, reality tells us that copying is nothing like shoplifting. But, I guess, if you want to close off any real conversation, you toss out ridiculous statements that are so laughable that no one takes you seriously.

Even David Kappos, the head of the US Patent Office -- and someone who should know better -- made a condescending comment about how "the adults in the room know" that everyone has to pay up for patent, or they're going to get sued. As Tushnet notes in response, things change once the people realize that the system is broken:

I couldn’t help but think in response to Kappos about what a lawyer might have said pre-NYT v. Sullivan etc.: “the adults in the room know that if you say negative things about public officials you’re going to get sued.” Sounds sort of like wisdom, but this conference isn’t just practice pointers, or at least I hope it isn’t; maybe it’s an adult thing to give up on a better world, but I don’t think so.

Of course, it doesn't stop at just this one event. When I was in London last week, I learned of meeting to figure out how to respond to the "unprecedented attacks on IP rights." In the article about it, they highlight all of the awful things that the darn public has done lately:

Already this year, we have seen the blackout of websitesincluding Wikipedia that led to the shelving of the SOPA and PIPA legislation in the United States, and an organised attack on the Anti-Counterfeiting Trade Agreement in Europe, which has led to a delay in ratification and its possible abandonment.

In India, organisations like UNITAID haveprotested efforts to strengthen patent protection through free trade agreements, arguing they threaten affordable access to medicines in developing nations.

The panelists will discuss why IP owners, governments and others involved in the IP system need to address the more active and organised voices in civil society with communication, case studies and events.

Once again, it's not even considered possible that all of these actions were because of legitimate complaints. There isn't even the suggestion that perhaps some of this push back was due to massive and sustained overreach from the maximalists. Nope. It's all those stupid people in the public who need to be told by "the adults in the room" what's best for them, and any of their voices need to be "countered."

Either way, one thing seems clear: the usual maximalists aren't about to stop pushing for maximalism and actually listen to the concerns of the public. Instead, they're about to go on the offensive, looking to tar and feather those who bring actual facts and evidence to the table.

Just a few weeks ago, we wrote about noted TSA-critic and security expert (among other things) Bruce Schneier debating former TSA boss Kip Hawley over at the Economist. While that debate was interesting, you might be forgiven for reading a WSJ piece written by Hawley and wondering if Hawley wasn't secretly replaced by Schneier. In the article, Hawley admits that the TSA screening process is ridiculously broken, and even makes a few statements that are almost word for word repeats of criticism Schneier has directed in the TSA's direction for years. Here's a snippet:

More than a decade after 9/11, it is a national embarrassment that our airport security system remains so hopelessly bureaucratic and disconnected from the people whom it is meant to protect. Preventing terrorist attacks on air travel demands flexibility and the constant reassessment of threats. It also demands strong public support, which the current system has plainly failed to achieve.

The crux of the problem, as I learned in my years at the helm, is our wrongheaded approach to risk. In attempting to eliminate all risk from flying, we have made air travel an unending nightmare for U.S. passengers and visitors from overseas, while at the same time creating a security system that is brittle where it needs to be supple.

Any effort to rebuild TSA and get airport security right in the U.S. has to start with two basic principles:

First, the TSA's mission is to prevent a catastrophic attack on the transportation system, not to ensure that every single passenger can avoid harm while traveling. Much of the friction in the system today results from rules that are direct responses to how we were attacked on 9/11. But it's simply no longer the case that killing a few people on board a plane could lead to a hijacking. Never again will a terrorist be able to breach the cockpit simply with a box cutter or a knife. The cockpit doors have been reinforced, and passengers, flight crews and air marshals would intervene.

Second, the TSA's job is to manage risk, not to enforce regulations. Terrorists are adaptive, and we need to be adaptive, too. Regulations are always playing catch-up, because terrorists design their plots around the loopholes.

All of that sounds good... but why wasn't that the way the TSA acted under Hawley's 3.5 year tenure at the helm? As he explains it, some of it was merely giant bureaucratic institutional momentum. Some of it was political. Some of it was his own fault. Basically, there were a number of reasons -- not all of which are particular convincing for the public that's sick of the TSA, something that Hawley admits. While he does say that there are some things that make more sense than people realize (for example, he says that there are more reasons for requiring people to take off their shoes than people realize), there are other things that he admits are pretty stupid, such as the liquid restrictions. He notes that there are plans on someone's desk (which existed while he was at the TSA) that would allow people to bring the liquids they wanted -- basically by setting up separate lines for those bringing larger volumes of liquids, which can be scanned with relative ease with a software upgrade.

In the end, he suggests a few key changes to the TSA process to improve not just the airport experience, but also the safety of flying. And he notes all of these could be implemented in a matter of months if the TSA wanted to do it:

1. No more banned items: Aside from obvious weapons capable of fast, multiple killings—such as guns, toxins and explosive devices—it is time to end the TSA's use of well-trained security officers as kindergarten teachers to millions of passengers a day. The list of banned items has created an "Easter-egg hunt" mentality at the TSA. Worse, banning certain items gives terrorists a complete list of what not to use in their next attack. Lighters are banned? The next attack will use an electric trigger.

2. Allow all liquids: Simple checkpoint signage, a small software update and some traffic management are all that stand between you and bringing all your liquids on every U.S. flight. Really.

3. Give TSA officers more flexibility and rewards for initiative, and hold them accountable: No security agency on earth has the experience and pattern-recognition skills of TSA officers. We need to leverage that ability. TSA officers should have more discretion to interact with passengers and to work in looser teams throughout airports. And TSA's leaders must be prepared to support initiative even when officers make mistakes. Currently, independence on the ground is more likely to lead to discipline than reward.

4. Eliminate baggage fees: Much of the pain at TSA checkpoints these days can be attributed to passengers overstuffing their carry-on luggage to avoid baggage fees. The airlines had their reasons for implementing these fees, but the result has been a checkpoint nightmare. Airlines might increase ticket prices slightly to compensate for the lost revenue, but the main impact would be that checkpoint screening for everybody will be faster and safer.

5. Randomize security: Predictability is deadly. Banned-item lists, rigid protocols—if terrorists know what to expect at the airport, they have a greater chance of evading our system.

I think it's reasonable to criticize him for not doing more to get these changes in place while he was still in charge, but at least he's speaking out now. One key point in all of this, which often goes unnoted in the discussions of security theater, is that it often makes us less safe by the incentives it creates for TSA scanners. Above, one of his suggestions is to get rid of banned items, because of the "easter-egg hunt." As he notes elsewhere in the article, one of the problems with today's system is that agents become so focused on finding the specific "banned items" that they miss real threats. He relates the story of a test where agents were so focused on finding cigarette lighters that they missed bomb parts packed in the same bag around the lighter.

Of course, the problem in actually getting Hawley's ideas implemented remains the biggest hurdle. As much as the public hates the TSA screening process, no one is willing to make a change like this, because when an attack inevitably gets through (as it would with or without today's procedures), then the "new" security screening process will inevitably be blamed. As such, whoever agreed to put in place such a security regime would inevitably be sacrificed for "failing" in his or her job. So, you shouldn't necessarily expect any significant changes any time soon. Instead, it'll be yet another showing of traditional security theater... for old time's sake.

Update: Apparently the Guardian made a translation error, and the French 'bugger' is actually borrowed from the English 'bug' (as in computer bug) and just means 'crash'.

Last year, we wrote about a situation developing in Canada, where a strict reading of legacy election laws made it illegal for east-coast voters to discuss exit polls on Facebook or Twitter until polling stations across the country had officially closed. Now, the Guardian reports that a more or less identical situation has cropped up in France, where newspapers and regulators are warning citizens to keep mum about early results in the upcoming presidential election.

French law prohibits the media from publishing polls or exit surveys between midnight on the Friday before election day until all the voting stations have closed on Sunday – 8pm in cities and 6pm in towns.

This is strictly upheld. Because of time differences, French voters in overseas territories and departments, such as Martinique and Guadeloupe, will have gone to the polls the previous day; knowing early results in areas where the outcome is expected to be close could influence last-minute voters.

The French commission for opinion polls has ruled that Twitter and Facebook fall within the legal definition of media and are bound by the law.

The Journal du Dimanche headlined an article about the situation: "Twitter fera-t-il bugger l'élection?" (Will Twitter bugger crash the election?)

As we noted last year with regard to Canada, such laws are holdovers from a time when the national media was controlled by a few key players. In the modern world, where everyone is the media, they are completely impractical. And indeed, as the Canadian election wrapped up, it became clear that citizens were completely ignoring the rule, even going so far as to set up a website dedicated to aggregating such tweets. In fact it seemed that the law actually drove more people to share early results online—and then the whole story sort of fizzled, when Elections Canada admitted that they only investigate and enforce the law in response to specific complaints.

As the Guardian notes, such a law is perhaps more significant in France, where the overseas territories mean the polling window spans two days. But, whatever arguments there may be for protecting the sanctity of elections, the law is still unenforceable. I suspect we'll see the same disregard in France as we did in Canada—and probably the same lack of repercussions, depending on the outcome of the vote. Someday, somewhere in the world, we may see a close election get contested on the grounds that such a law was broken—and that will spark a huge debate about the role of social media and the internet in election polling. But for now, it's unlikely that many people will heed the warnings and alter their behavior.

We recently wrote about a Rob "CmdrTaco" Malda column for the Washington Post, which suggested that getting sued for patent infringement was like frat hazing for tech companies that file to go public. If that's true, then it appears that Facebook is taking its paddle whacks from quite a few upper classmen. In a larger report about the Facebook/Yahoo patent battle, M-CAM mentions as an aside that Facebook has been sued five times for patent infringement in just the two months since it filed for the IPO:

Patent infringement lawsuits can be problematic during a company's quiet period. In the two months since filing for its IPO in February 2012, Facebook has been the target of five such suits: three from non-operating entities, one from Mitel, and one from Yahoo!.

This isn't a coincidence. This is about companies hoping to cash in by filing questionable patent lawsuits at a very inconvenient time for Facebook. These are companies who know the history of similar lawsuits, where many companies feel compelled to "settle" at almost any cost, due to pressure from Wall Street investors who don't understand patent battles, and fear that any prolonged fight is too costly. So companies are sometimes willing to pay through the nose, not because there's any validity to the lawsuits, but because the massive influx of cash from a successful IPO is worth a lot more than fighting the patent lawsuit. In fact, I wouldn't be surprised to see a few more trolls try to jump in before the IPO gets off the ground.

A few years ago, we wrote about the UK's Royal Mail using a dubious copyright claim to bully a website into shutting down because it offered postal code data. In that case, the company chose not to fight the claim—and yet not long afterwards, UK officials decided to free up postal code data. Now, Michael Geist reports that a similar conflict is brewing in Canada—except this time, the company is fighting back:

Canada Post has filed a copyright infringement lawsuit against Geolytica, which operates GeoCoder.ca, a website that provides several geocoding services including free access to a crowdsourced compiled database of Canadian postal codes. Canada Post argues that it is the exclusive copyright holder of all Canadian postal codes and claims that GeoCoder appropriated the database and made unauthorized reproductions.

GeoCoder, which is being represented by CIPPIC, filed its statement of defence yesterday (I am on the CIPPIC Advisory Board but have not been involved in the case other than providing a referral to CIPPIC when contacted by GeoCoder's founder). The defence explains how GeoCoder managed to compile a postal code database by using crowdsource techniques without any reliance on Canada Post's database. The site created street address look-up service in 2004 with users often including a postal code within their query. The site retained the postal code information and gradually developed its own database with the postal codes (a system not unlike many marketers that similarly develop databases by compiling this information).

GeoCoder is putting forth a huge array of defenses. They point out that postal codes, as facts, should not be copyrightable, that Canada Post's copyright claim over the database itself is questionable, that even if such copyright exists their crowdsourced database is not infringing, that free postal code data is in the public interest, and that Canada Post's complaint represents anti-competitive copyright misuse. As such, this will prove to be a test case for a bunch of legal questions that have yet to be fully answered by Canadian courts.

Ultimately, attempting to control postal codes makes no sense. Making it harder for people to utilize them and build services around them just decimates their purpose, and speeds their path to irrelevance in a world with lots of much better and more accessible location data—not to mention a world where physical locations and permanent addresses matter less and less for many purposes. It also seems entirely unfair: since postal codes are required for all sorts of things, including most interactions with the government, how can Canada Post (a state-owned corporation) restrict access to them? All these arguments and more are likely to be raised, and could attract some interesting interveners to the case. This will definitely be a trial to watch.