HTC has, quite rightly, decried the insanity of the patent thicket in the smartphone arena. In fact, some clueless analyst had written a note suggesting that HTC was at risk because it didn't have enough patents. The idea that quantity of patents matters is a really scary thought, but with the way the patent system works today, companies who have no desire to own patents are increasingly being pressured into doing so. Thus, HTC has been in the process of getting its hands on as many patents as possible, both by ramping up its own patent application filings, and by buying others patents (such as via the purchase of S3).

As someone who has used a bunch of HTC phones over the years, all of this is pretty depressing. I'd much rather the company focus on doing what it does best: building cool smartphones and devices. While our broken system may be forcing it to invest in patents (and patent litigation), wouldn't we all be better served by letting it (and others) focus on building cool products to compete in the marketplace? Or is that just too old fashioned an idea?

People will file lawsuits over almost anything these days. Perminder Tung has apparently sued Apple because his Time Capsule device broke and no one at the Genius Bar could fix it. I can certainly understand the frustration here, but it's difficult to see how there's any sort of legit claim. Technology fails all the time. There's nothing that promised this device would work forever. Claiming, as Tung does, that the failure of Time Capsule represents "a fundamental and total breach of contract," seems like a huge stretch. Man. If I could have legitimately sued every time a technology -- especially a backup storage system -- failed without being repairable, I'd have a hell of a lot more money. But we don't do that, because we know that there is no implicit promise when you buy technology that it works forever.

The Segway was originally billed as a revolutionary new way to travel, but after it was revealed, it didn't seem anywhere near as cool as a flying car (or hoverboard). While everyone is more concerned about gas mileage nowadays, there are still some dreamers out there working on personal flying vehicles. Here are just a few examples of some ways to get yourself off the ground.

• Personal planes that can take off and land in water are almost ready to ship to their first 35 customers. Prototypes of these electric planes have been flown in successful test runs, and FlyNano expects to start production in the next year. [url]
• A personal helicopter is becoming a bit cheaper and more practical -- just imagine 4 or 5 toy quadcopters linked together with a chair in the middle. The volocopter VC1 is the first all-electric manned helicopter, and all those redundant rotors allow for a few to fail without causing too much trouble. [url]
• Adam Savage (of Mythbusters fame) tells everyone how to build their own hovercraft using a leaf blower, some duct tape and a 4 foot diameter circle of plywood. Warning: make sure you have enough gas in the leaf blower so you don't sink in the middle of a lake.... [url]

If you have some more free time, check out this unrelated (but not entirely random!) Techdirt post.

We've talked plenty about the shameful position of the USTR on transparency when it comes to negotiating agreements like ACTA and TPP. While USTR Ron Kirk keeps insisting that the feds are being more transparent with TPP than any previous trade agreement, that just shows a complete misunderstanding of what transparency means. He may be hearing from lots of people (and even that's a little questionable), but transparency really means revealing what you're working on -- something Kirk has refused to do. With ACTA there were regular leaks (mainly from folks in the EU who weren't happy with the document). We've heard that there are fewer leaks involving TPP because copies of the documents are being watermarked or otherwise marked, such that any leaked version can be traced back to the originator.

Still, you can't keep things secret forever, and it appears that more TPP proposals have been leaked. It's important to note that TPP covers a lot more than just intellectual property. We've mainly been focused on the IP chapter, but this leak covers other parts of the agreement. That doesn't make it any less troubling. As is being reported, the proposals appears to completely contradict President Obama's campaign promises, while also giving tremendous power to international companies.

It's been clear from the beginning that Kirk is in bed with corporate special interests. The fact that copyright maximalist companies have had regular access to information on the IP chapter of TPP has already been quite troubling, but this leak -- while not focusing on the intellectual property issues that we're most interested in -- seems to confirm that the USTR believes its main purpose is to make life easier for companies it already likes, while making things worse for everyone else.

Brian Kahin, over at Project DisCo has a good post that goes over the basics of disruptive innovation, covering the innovator's dilemma -- and why it's rarely big companies who are able to truly innovate. But the bigger issue is how much people judge innovation by the incremental look at how things have been done before, not how the new thing totally shakes up and disrupts the market.

Disruption makes big demands now – in terms of learning and immediate costs – while offering only speculative benefits in the long term. Large companies with successful business models and dominant positions are especially wary of cannibalizing existing revenue streams – the cash cows that insulate them from the extremes of market competition. At a behavioral level, this inertia is compounded by the “endowment effect,” the demonstrated human tendency to overvalue what you already own.

All too often we hear companies, industry reps or politicians insist that it's crazy to think that Legacy Industry X must change and adapt to new market conditions until someone shows them how to make as much money as they were making in the past. There's just one problem: if you wait until that answer is clear, you're too late. The disruption has already won. Disruptive innovation is disruptive because it takes the legacy industries by surprise. It's disruptive because it happens in a way where the path isn't clear to the legacy players.

And it happens both more slowly and more quickly than most observers acknowledge.

It happens "more slowly," because there are always ways to paint that initial innovation as being "worse" than what exists today, and thus something not worth paying attention to. This is a key point in Clayton Christensen's Innovator's Dilemma. The disruptive innovation is dismissed because based on the old objective measures, it almost always appears demonstrably "worse" than existing offerings. And it does take some time to "catch up." So when these things first appear, they're dismissed as being too little/slow/ineffective/etc. for the market at hand.

But what people miss is how the rate of change happens much more quickly -- and the advancement comes at a surprising pace and/or in surprising ways. Usually the rate of advance is on metrics that the legacy industry never thought were that important, and thus they totally miss it when customers start shifting in droves, because it just doesn't make sense.

Unfortunately, however, one of the true killers of disruptive innovation is the political process. If it were just true that legacy companies totally missed the boat and disruptive innovators did their disruption and killed off those dinosaurs, that would be one thing. But that ignores the political process:

Large companies have the resources and accumulated expertise to influence policymakers and regulators against disruption of their business models. They have many arguments in their arsenal: preserving jobs, justifying past investments, incentivizing investments that they might make in the future, subsidies to politically important constituencies, supply chains dependent on the status quo, etc. By contrast, disruptive innovation doesn’t have much of a presence in Washington. Existing innovators are too busy. Future innovators don’t exist yet.

Yet even if policymakers are sensitized to the fact that disruptive innovation has few friends and many opponents, that information is difficult to operationalize. Future innovation is hard to predict, and advocates within government probably won’t be around long enough to take credit for it. Instead, innovation policy is framed in terms of past success. Thus, a linear or “pipeline” model of innovation in particular still dominates despite much criticism, academic and otherwise. The linear model explains innovation in an intuitively simple way and serves well-established interests along the way. Research goes in the front end, investments in commercialization are secured by patent, and new products emerge from the pipe. It suggests a simple policy agenda: ”More of the same.”

But that's not the way disruption actually works. Nor has it ever worked that way. But nearly all of the policy that comes out of the government acts as if this is the case.

Disruptive innovation is not an orderly process. It sneaks up on companies, and if they wait too long, it will bite them. But, at the same time, bad policies can lead to massive unintended consequences that don't necessarily stop the innovation from happening, but pervert it so that it is less useful or efficient or (most likely) that it simply happens somewhere else, leaving our own economy behind.

We've written a few times about the works of James Joyce, and how his estate -- mainly at the behest of his grandson, Steven -- was particularly aggressive (even to egregious levels) in stopping anyone from quoting Joyce's works. As we stated a year ago, for Europe and much of other parts of the world, starting this year, Joyce's published works have moved into the public domain (70 years after Joyce's death), leading to great excitement about how people can build on them.

In the US, the story is a bit more complex, however, as the Joyce Estate claims that Ulysses is still under copyright, having not been officially published as a book until 1934. Others, however, argue that the book is in the public domain, for a variety of reasons. I was a bit surprised, then, to read this PBS article, which seems to imply the work is officially public domain in the US. At best, that's a point of contention.

Either way, in Ireland, it's clear that Ulysses is in the public domain, and since this past weekend was Bloomsday, the popular celebration of all things Joyce (based on the date on which the book Ulysses takes place) there was, indeed, renewed excitement around the event (thanks to Joe for sending this and other links).

Unfortunately, it's not all good news. That link above talks a bit about how there are still efforts to control Joyce's "unpublished" works -- such as letters and correspondence -- by twisting the law. The law does cover published and unpublished works differently, but on the assumption that "unpublished works" were works that were intended to be published. When we're talking about letters and other issues of historical note, which scholars would love to make use of, it's ridiculous to stifle such things in the name of copyright.

Even worse, as Becky Hogge warns in The Atlantic, regulators who love to extend copyright law brought Joyce's works back in from the public domain in the past and could do so again:

2012 is not the first year Joyce entered the public domain in Ireland; that happened twenty years ago, only for the European Union to retroactively extend so-called authorial copyright from 50 years after the author’s death to 70. The extension handed control of Ulysses back to the estate, causing untold legal trouble for scholars already beginning to take advantage of its public domain status to release new editions.

I’ve witnessed at close quarters a similar extension granted to copyrights held by performers and record labels in the EU. What I learned then was that politicians extend copyright like most of us write thank-you notes: it’s the least they can do to show their gratitude for the attentions of an industry they’d have preferred to join had their looks and talent permitted. In the context of the subsidies granted to farmers or fishermen, extending copyright for the benefit of ageing rock stars is something EU lawmakers do in their lunch break

Hopefully, with a world more aware, thanks to SOPA and ACTA and the like, pushing through such things won't be quite so simple. But it is something that people need to be vigilant about.

We've had tons of stories about police arresting people for filming them. And we've seen plenty of other stories about mobile phone cameras being used to document and share evidence of police overreacting (especially at various protest scenes). However, the folks at On The Media had a great story recently about how the police in Minnesota are filming themselves when they deal with protests and then releasing the raw video footage in response to footage from others.


In the case above, it involved Occupy protestors using video footage of police arresting journalists. However, the police's own footage put the situation in a bit more context, including showing the police clearly reading out warnings to the crowd that if they don't help police remove obstructions in the plaza, that they will need to take enforcement action. Does this absolve the actions of the police? Perhaps not, though it may depend on where you sit. However, it is a really interesting strategy, and one that I think actually reflects a very positive development. Rather than hiding from cameras, the police can (and should) use cameras to their own advantage as well.

Amusingly, however, in the story, the police chief notes that the film in question was done by crime scene videographers, who are a little too focused on closeup shots, not knowing quite how to take wide shots that might show the scene in a bit more detail to provide additional context.

Of course, the police chief, Janee Harteau, isn't fully enlightened. While she does say that officers should always assume they're being filmed (and mentions permanent cameras in the city, as well as squad car cameras), she still complains that people with mobile phone cameras sometimes "interfere with an officer's ability to do their job." She doesn't really elaborate, beyond saying that police have a job to do in protecting the public. She does say that "the officer's word doesn't mean as much as it used to" if there isn't a video. I'm not sure why that's a bad thing. If there isn't more evidence, isn't it only proper to give the testimony less weight? Either way, I do think the overall idea of police filming themselves (and releasing that video) is a definite step in the right direction, and one that I hope other police departments start using.

Earlier this morning we wrote about Charles Carreon suing Matthew Inman, IndieGoGo, the National Wildlife Federation and the American Cancer Society. At that time, all anyone had was the summary of the lawsuit as written by Courthouse News Service. Now, Carreon has posted the filing to his own website (with portions redacted) and the full version is now available via PACER. I've attached the officially filed version below. Rather than reveal new theories that we had missed in our original analysis, it would appear that our initial thoughts were dead on. This case is just begging to be anti-SLAPPed out of existence, in which case Carreon may find himself on the hook for significant legal fees.

When I was writing about the original case, I went looking through California's regulations on charities, and couldn't find anything that would impact Inman or IndieGoGo and all I came across was this law from this page on the California Attorney's General website. But I couldn't see how that specifically applied to Inman or IndieGoGo, since it seemed to be focused (a) on charities themselves or (b) on professional fundraisers (i.e., people hired to fundraise on a charity's behalf). It did not seem to apply to people who just tried to raise money which they promised to donate to a charity. However, that is the law that Carreon is relying on. Carreon seems to try to twist the definition of a "commercial fundraiser" to make it apply to Inman and IndieGoGo, but it's a pretty massive stretch. Inman isn't doing this "for compensation," so the law doesn't seem to apply to him. IndieGoGo is just the platform, but isn't doing the soliciting or directly touching the funds. The law is designed for an entirely different purpose.

And even if, somehow, a court actually believes that this law applies here, you might wonder how it's possible that Carreon has any standing to sue whatsoever. The fundraiser has nothing to do with him (it was about Funnyjunk, but remember that Carreon is suing on his own behalf, not Funnyjunk's.). Carreon appears to just be suing because he's pissed off. Except, that Carreon thinks he found a loophole. He donated to the campaign himself in order to create standing:

Plaintiff is a contributor to the Bear Love campaign, and made his contribution with the intent to benefit the purposes of the NWF and the ACS. Plaintiff is acting on his own behalf and to protect the rights of all other contributors to the Bear Love campaign to have their reasonable expectation that 100% of the money they contributed would go to a charitable purpose. Plaintiff opposes the payment of any funds collected from the Bear Love campaign to Indiegogo, on the grounds that the contract between Indiegogo and Inman is an illegal contract that violates the Act, and its enforcement may be enjoined. Plaintiff opposes the payment of any funds to Inman because he is not a registered commercial fundraiser, because he failed to enter into a written contract with the Charitable Organization defendants, because the Bear Love campaign utilized false and deceptive statements and insinuations of bestiality on the part of Plaintiff and his client’s “mother,” all of which tends to bring the Charitable Defendants and the institution of public giving into disrepute.

Yeah. Once again, Carreon contributed to Inman's campaign for what appears to be the sole reason of using that as a way to get standing to sue. I'm somewhat stunned.

Also, how can he possibly blame the charities? Well, Carreon's lawsuit fails in that it never actually states a claim against the charities. Seriously. At one point in the explanation of the lawsuit, he does state the following, but never actually includes the charities in any of the actual claims:

Although the Charitable Organization defendants have notified by Plaintiff in writing about the fact that the “Bear Love” campaign alleged infra is being conducted by Inman and Indiegogo in violation of the Act, and that the campaign is being conducted in a manner that could cause public disparagement of the Charitable Organization defendants’s good name and good will, neither the ACS or the NWF have acted to disavow their association with the Bear Love campaign, thus lending their tacit approval to the use of their names to the Bear Love campaign.

Again, just for emphasis, I'll point out that even with this paragraph, Carreon fails to name either charity with any of the actual claims in the lawsuit. He does include them in part of the claim, by stating that they "have failed to perform their statutory duty to exercise authority over the Bear Love campaign," but still fails to directly assert the claim against them. Even if he somehow figured out a way to work them into one of the claims, this particular legal theory of not disavowing "their association" with Inman's campaign leading to "tacit approval" is pretty ridiculous as well, and not something I could see standing up in court.

Meanwhile, Carreon's theory that Inman "disparages the image of charitable fundraising" again seems to stretch all kinds of definitions and understanding of the internet. Basically, he relies on the fact that Inman likes to mock people he doesn't like. But that's entirely unrelated to the issues at hand. Furthermore, despite Inman and Inman's lawyer explaining (in great detail) to Carreon, earlier, that Inman has an ASCII pterodactyl on all pages of The Oatmeal's source code, Carreon spends an inordinate amount of space talking about how awful this is.

Inman has announced his vindictive response to his real and imagined enemies by posting, within the source code of all of the webpages on his main website, www.theoatmeal.com, the following image and text, depicting himself as a pterodactyl that will “ptero-you a new asshole.” A screencapture of the core of the source-code appears as follows: Following the link to http://pterodactyl.me leads the Internet user to a page on TheOatmeal.com where a video created by Inman and Sarah Donner depicts Inman, in his character as a carnivorous, prehistoric flying reptile that first rips the intestines out of a man's anus, then flogs him with his entrails, then steals a pineapple from a boy, tears his head off, flings it a girl and knocks here head off, then grinds up the girl’s head up in a wood-chipper, blends it with the pineapple, and drinks the grisly cocktail

The filing then shows screenshots from the video in question, which we'll just embed here for your viewing pleasure: Carreon tries to claim that these images actually incite Inman's followers into action:

Inman’s followers are by and large with technologically savvy young people eager to follow the latest trend, who embrace Inman’s brutal ideology of “tearing you a new asshole.”

Seriously? Carreon is literally arguing that fans of a silly comic with cartoonishly ridiculous violence leads them to "embrace" this "brutal ideology?" Carreon really ought to spend more time online. Carreon repeatedly makes incredibly weak connections between Inman's cartoons, his online persona and the later hatred directed his way, but without any actual evidence.

Later in the lawsuit, Carreon again claims that Inman's statement that Funnyjunk "stole" images is "false and misleading." Whether or not that's true, it's irrelevant here. Funnyjunk is not a plaintiff in the lawsuit. He also goes off on Inman for "fighting words, and incitements to commit cybervandalism, none of which are entitled to constitutional protection." Neither of those make sense. It's nearly impossible to see how Inman's cartoons, as sophomoric as they might be, qualify under the standard legal definition of "fighting words" or any kind of incitement to violence. In fact, Inman has made no references inciting his audience to do anything other than give money to charities (which most people would consider a good thing).

Moving on... we've got the trademark and publicity rights claim. As expected, Carreon is asserting that various actions violate the trademark on his name and his publicity rights. The key is that someone set up a fake Twitter account in his name and tweeted various statements that might make Carreon look silly. Of course, reading some of the tweets, it seems rather obvious that the account is fake. For example, one of them talks about "backtracing" Inman's IP -- a rather obvious reference to the famous ya dun goofed internet meme. Also, as he had suggested in an interview on Friday, Carreon makes interesting leaps of logic in suggesting that Inman himself may have set up the fake account.

Then, finally, we have the "inciting and committing cybervandalism in the nature of trespass to chattels, false personation and identity theft." Here, he claims that the fact that his email address was made public was part of that incitement, claiming that he never made it public:

As noted above, Doe1 or Inman proliferated Plaintiff’s email address via a fake tweet made by “@Charles_Carreon.com.” Plaintiff had not posted the chas@charlescarreon.com email address anywhere on the Internet except where required by law and Internet regulations. (The email address appears on legal papers in PACER filings in cases where required by the rules of this and other U.S. District Courts; however, these filings are viewable only by PACER users. The email address was also used in the Whois registration database for various websites Plaintiff has registered for his benefit, and as by the authorized registrant/agent of various legal clients.) Inman or persons incited by Inman also proliferated the email address and Plaintiff’s home address on social networking websites, again for the malicious purpose of enabling cybervandalism.

Except... court filings are not only viewable to those with a PACER account. Filings with the court, if not under seal, are considered public documents and are often available from a variety of sources, including the Internet Archive and other places as well. Separately, if he didn't use an anonymizer, the whois info that includes his email address is public info. Furthermore, his address is available elsewhere online as well, including (um...) both the websites for the State Bar of California and the State Bar of Oregon. Oh, and the email address is also clearly stated in the version of the legal filing that Carreon posted to his own website. While he redacted his email address in the header, he did not within the text of the complaint. In other words, that address was widely available to the public already.

His second claim of cybervandalism was that someone tried to reset the password on his webhosting account:

On June 13, 2012, at 9:28 p.m., either Inman or one of the persons named as Does 1 – 100 engaged in the act of trespass to chattels, cracking the password on Plaintiff’s website at http://www.charlescarreon.com and requesting to reset the password. Fortunately, the intrusion discovered instantly by Plaintiff who was sitting looking at his computer screen when he received an email from the website software system, and was able to retain control of the website by immediately changing the password using the hyperlink in the email.

First of all, merely requesting a reset password is not "cracking the password." It's requesting a new password, which the user would not be able to act upon unless they had access to Carreon's email (and there is no indication that that happened). In fact, it appears that the password reset system worked as designed, in that Carreon was warned that someone wanted to reset the password. And, actually, the fact that Carreon admits to "using the hyperlink in the email" suggests that that could have been the real hack attempt. You should never change your password using a hyperlink sent to you in an email. You should always go directly to the site yourself and login and make the change. Normally, if you receive one of those reset emails and haven't tried to reset your password, you're supposed to ignore it so that the password doesn't get reset. Clicking on the link and changing a password that way makes one susceptible to phishing attacks.

Finally, Carreon notes that some idiots online have signed his email account up for various spam emails/newsletters. If true, that's pretty stupid on whoever signed him up for those kinds of things, and people really shouldn't do that. But claiming that's "cybervandalism" or anything that can or should be pinned on Inman (again, whose target was Funnyjunk, not Carreon) seems ridiculous in the extreme.

Louis Vuitton is probably the biggest of the trademark bullies out there. We have a bunch of posts detailing some of Louis Vuitton's overreach. Unfortunately, just a couple months ago, it actually won in one of its more bizarre claims -- that a clearly fake basketball in a commercial damaged its trademark. LV used that win to support another ridiculous claim: that Warner Bros. using a counterfeit LV bag in its movie Hangover II itself represented trademark infringement.

Thankfully, as a number of folks have sent in, district court Judge Andrew Carter is not convinced and has dumped the case, noting (correctly) that "The likelihood of confusion is at best minimal." The judge pointed out that the bag was on-screen for less than 30 seconds and no one was likely to notice it was fake. The fact that the character in the movie (played by Zach Galifianakis) made a joke in which he pronounced Louis Vuitton as "Lewis Vuitton" is meaningless here, even though LV seemed particularly hurt by being the butt of a joke, saying it was "an oft-repeated and hallmark quote from the movie."

Now, if only we can get that ruling on the basketball overturned...

Even as key committees and a bunch of elected officials in the EU Parliament have come out against ACTA, all that really matters is the final vote. And the pro-ACTA forces are making a very big push to get it approved. Some are making arguments on its importance (and pretending that the concerns are overblown). Others are suggesting delays in the vote, in hopes of having more time to build support. Finally, some others have suggested "amendments" to ACTA that would remove some of the more controversial bits. Of course, that's a much more difficult move than you might think, since we're talking about an agreement that has already been in this "final" form for well over a year, and was the result of years of negotiation with a bunch of other countries, many of whom have already signed off on the document. Re-opening the negotiations at this stage would open up a huge can of worms (and would piss off the US negotiators). I just don't see it happening.

However, much more concerning is a rumor, passed along by MEP Marietje Schaake, that there will be a request for a secret ballot. In other words, elected officials know that their constituency, the European public, is vehemently against ACTA, but they don't want to be held accountable for their votes. A secret ballot on proposals like this only serve to support corruption and positions that go against the will of the people. Hopefully, enough in the EU Parliament realize just how bad it will look to the public (not just in Europe, but around the globe) should they agree to a secret ballot concerning ACTA.

One of the major complaints about ACTA all along was the lack of transparency in the negotiations. Concluding that with a lack of transparency in the voting isn't exactly a way to inspire confidence. It's almost guaranteed to backfire and alienate the public even more.

Over a year ago, we wrote about an attempt by a porn company, Liberty Media, to sue a bunch of people it accused of infringing on its copyright. The case had many similarities to copyright trolling lawsuits, but there was one claim in particular that we found quite troubling: the idea that not securing your WiFi was a form of negligence. The lawyer representing Liberty, Marc Randazza, is someone I know and like, and who I normally find on the good side of lots of cases (and, in fact, I've sent people his way when they've been looking for good lawyers). When news came out that someone had "settled" with the company and the vast majority of the amount the person agreed to pay was for that "negligence," we found it quite problematic and told Randazza we were planning to write about it. In response, he sent a long email to both me and Torrentfreak -- which they published as a guest opinion -- defending why an open WiFi qualifies as negligence. I wrote back a response as to why I thought he was completely wrong on this one.

And, now, a court may be deciding the same thing. The EFF has filed an amicus brief in what I believe is a related case arguing that this theory of negligence is ridiculous (Update: Randazza informs me that he's not counsel on this particular case and says that the negligence claim here is quite different and, contrary to the EFF's claim has nothing to do with open WiFi. Instead, the negligence theory put forth focused more on the fact that the guy being sued was aware of infringement on his WiFi and still allowed the user to use it -- more on that below). Here's just a snippet from the lawsuit:

LMH’s theory of liability cannot withstand even passing scrutiny. No matter how artfully pled, LMH’s claim sounds in, and is preempted by, copyright law. And as decades of copyright jurisprudence and legislation make clear, that body of law does not recognize a cause of action based on mere negligence. Accordingly, no court has ever found, or could ever find, that anyone has violated copyright law simply because another user of his or her Internet connection did so.

And that is a good thing. Every day cafes, airports, libraries, laundromats, schools and individuals operate “open” Wi-Fi routers, sharing their connection with neighbors and passers-by at no charge. Sometimes people use those connections for bad acts. Most of the time they don’t, and the world gets a valuable public service of simple, ubiquitous Internet access.

Creating a duty under tort law to prevent others from infringing copyright would drastically inhibit this activity, to the detriment of the general public and clear federal copyright and telecommunications policies promoting convenient, universal access to the Internet. Thus, manufacturing a new copyright cause of action based on negligence – which, make no mistake, is precisely what LMH asks the Court to do – would “stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”

It would be nice to have a clear statement from the court on this matter, clarifying that merely having open WiFi -- as thousands upon thousands of individuals and businesses do -- is not a sign of "negligence" that automatically makes you liable for any infringement done on those networks.

Update: As I put in the update above, there is some argument over whether or not the case is even about open WiFi, but I think that the EFF's point still stands and fits the facts of the case. Even if we're talking about a situation in which a WiFi network owner knew someone was infringing on their WiFi, it is still a huge stretch to argue negligence on their behalf for allowing the usage of the network to continue, and that negligence claim could carry over to the question of open WiFi. As the EFF notes in its filing, using negligence as a theory related to copyright creates an entirely new theory of copyright liability not seen in the statute and with a significantly lower bar than existing theories of secondary liability in copyright. Thus, expanding negligence to cover liability in a copyright claim could have a massive impact beyond just the individuals in this case.

Lowestofthekeys alerts us to the situation of one W. Thomas Adkins, who had some t-shirt designs of his own making for sale on Zazzle... until they were taken down in response to a copyright claim. After Adkins requested more info on why his images were taken down, Zazzle explained:

...your product was removed due to an infringement claim by Warner Bros. Studios. While the artwork as you claim is original, the characters from the Wizard of Oz are currently property of Warner Bros. As a guideline, designs from the Wizard of Oz that are currently prohibited for sale on Zazzle’s Marketplace are:

• All inspired artwork and character renderings from the Wizard of Oz
• Quotes from the Wizard of Oz Franchise
• All tags and descriptions that reference the Wizard of Oz

- Zazzle

There are a few problems with this. First of all, characters from the Wizard of Oz are not, in fact, "property of Warner Bros." The original book, written by L. Frank Baum, was published in 1900 and is in the public domain. The popular movie version, in which Warner Bros. holds the copyright, came out in 1939. This does lead to some interesting copyright questions, and a few lawsuits. For example, last year, we wrote about a lawsuit involving t-shirts designed with public domain Wizard of Oz images. And then there's a brewing fight over whether or not Disney can make a film based on the public domain parts of the Baum books if it makes no reference to the 1939 movie.

Basically, what the law has said is that if you're making references to the specific characters or character traits that were portrayed in the movie, but which are not from the books, then its under WB's copyright. So, if you were to display pictures of the actual actors or specific expressions or outfits that are from the movie, but not the books, then there's an issue.

From Adkins' post, however, it appears these were the images on the t-shirts that were removed from Zazzle:

It is difficult to see how either of these come anywhere close to infringing on WB's copyright. The first one merely displays a witch's pointy hat. While it seems that the origin of the pointy, wide-brimmed witch's hat has been lost to history, the various reports online suggest it long pre-dates 1939 and the movie. In fact, it appears that images in the original books show the witch in a pointed, wide-brimmed hat. So the hat is not copyright to Warner Bros.

Then there's the flying monkey. Problem being... the flying monkeys were in Baum's books, and Adkins' drawing is quite different from the version in the movie.

The concept of water melting the witch? Also in Baum's books, and as Adkins details in his blog post, it way predates the Oz books anyway.

Basically, everything in Adkins' images appear to reference the original Baum books and not the movie. Assuming Warner Bros. did make a copyright claim, as Zazzle's email stated, then it is engaging in copyfraud here and asserting copyright against images it has no rights over.

That said, Adkins also exaggerates his own rights in his response to Zazzle, which he posted. After explaining to Zazzle why his works did not infringe on WB's copyright, he unfortunately goes on to say:

As such, I respectfully request that my material and corresponding artwork be returned to circulation for purchase immediately.

Failure to do so would be an infringement on my copyright of my created artwork which, as verified by the testimony above, does NOT infringe upon Warner Bros. Entertainment’s copyright on the 1939 film or the specific celluloid representations of the characters made in said film. If my copyright continues to be infringed upon I will seek legal action against both Zazzle and Warner Bros. Entertainment.

Uh... no. Zazzle choosing not to display your work is, in no way, copyright infringement. As a private company, Zazzle has every right to refuse to display any particular work, even if its reasons are dumb. The public (and people like Adkins) are free to mock them, but there is no copyright issue there, and especially not infringement by Zazzle. The service certainly does not have the greatest reputation because of its quick trigger finger in pulling down perfectly legal content, but that doesn't mean it's illegal. Claiming that not displaying someone's work is infringement is just ridiculous, and takes away from Adkins' otherwise strong arguments.

Either way, the original point stands: Adkins' works don't appear to be infringing WB's copyrights. If WB did make the claim, it appears that WB went way too far. Adkins should have just filed a standard counternotice to Zazzle, and one would hope Zazzle does the right thing and puts the works back up.

For years, we've talked about the importance of Section 230 in properly applying liability directed at the actual people who break laws, rather than the tools and services they use. Unfortunately, some people fail to make a distinction and love to blame service providers. And... once it gets into areas that make people react emotionally, things get ridiculous. For example, we've written a few times about the misguided attacks on Backpage.com, which only came about because of similar misguided attacks on Craigslist. At issue was that both sites had been used for prostitution and sex trafficking. But, rather than do the sensible thing and work with those platforms -- who both have programs to do exactly this -- to make it easier for law enforcement to find and prosecute those involved in such efforts, grandstanding politicians and activists blamed the service providers, driving the actual activities further underground. Of course, they have never had any real legal argument, and the lawsuits have fallen flat.

However, it appears that some politicians in Washington State decided to pass a state law (SB 6251) which targets service providers. It's one of those laws that it's easy for politicians to get behind without realizing what they're actually doing. They think they're "protecting the children" but they're actually making the problem significantly worse. That's because they're not setting up a better way to track down and stop those actually responsible, but rather are simply telling them to move further underground, where it will be even harder to stop them.

And, of course, in their zeal to "protect the children" the politicians who passed this bill wrote it so broadly that it can create massive problems for tons of legitimate online service providers. The Internet Archive, represented by the EFF, has filed to join a lawsuit (from Backpage) against the law, pointing out that it clearly violates Section 230 of the CDA, which providers the necessary safe harbors for service providers. The overreach of the Washington law is pretty astounding:

SB 6251 would effectively coerce, by threat of felony prosecution, online service providers to become censors of third-party users' content by threatening five years imprisonment and a $10,000 fine per violation against anyone who knowingly publishes, disseminates or displays or anyone who “indirectly” “causes” the publication, dissemination, or display of content that contains an explicit or even “implicit” offer of any sexual contact for “something of value” in Washington if the content includes an image that turns out to be of a minor. Because of its expansive language (i.e., “indirectly” “causes”), the law could be applied not only to online classified ad services like Backpage.com but also to any web site that provides access to third-party content, including user comments, reviews, chats, and discussion forums, and to social networking sites, search engines, Internet service providers, and more. A law that takes such an overbroad approach is of serious concern to the Internet Archive, which aims to serve as a library for the Internet, and accordingly, houses more than 150 billion web pages archived since 1996.

The law expressly states that it is not a defense that the defendant did not know that the image was of a minor. Instead, to avoid prosecution, the defendant must obtain governmental or educational identification for the person(s) depicted in the post (notably, even if that ID does not contain a photograph). This means that service providers – no matter where headquartered or operated – may be asked to review each and every piece of third-party content accessible through their services to determine whether the content is an “implicit” ad for a commercial sex act in Washington, whether it includes a depiction of a person, and, if so, obtain and maintain a record of the person’s ID. These obligations would severely impede the practice of hosting third-party content online.

I'm sure the folks behind this law had the best of intentions. Sex trafficking of underage persons is a very real and horrific problem (even if the numbers bandied about are massively exaggerated). But the real solution is to go after the actual perpetrators, and that means working with service providers to help track them down -- not criminalizing the service providers in a way that kills off lots of legitimate activity as well.

Update: The full details of Carreon's lawsuit are now public, and they are just as nonsensical as you'd expect.

The situation with Charles Carreon just keeps on progressing. The latest is that, according to a report from Courthouse News Service, Carreon has now not only sued Matthew Inman, but also IndieGoGo and the National Wildlife Federation and the American Cancer Society. Read on for the details...

If you've been away from the internet for the past week, this story started as an online dispute between Matthew Inman, creator of the webcomic The Oatmeal, and a site called Funnyjunk, which lets users post content to the site. About a year ago, Inman wrote a blog post complaining about Funnyjunk's reposting of his webcomics. As we've noted a few times, Inman's statements about Funnyjunk were overly aggressive -- and did mention "stealing" of his own work. He seemed to ignore that it was users who uploaded the content. However, while we disagree with Inman's original characterization of Funnyjunk and how it operates, it certainly did not reach the level of "defamation." Also, we appreciate that Inman chose not to sue, but rather to make use of the court of public opinion. In response, Funnyjunk lashed out, incorrectly stated that The Oatmeal wanted to sue him (when Inman very clearly stated he had no intention to sue) and also asked a bunch of Funnyjunk users to contact Inman.

Everything seemed to die down, until about a week ago, when lawyer Charles Carreon, representing Funnyjunk, sent a letter to Inman, threatening to sue Inman for the initial blog post, claiming that it was defamation and a Lanham Act (trademark) violation for false advertising. Neither claim makes much sense, and Inman responded with both an excellent letter from (occasional Techdirt contributor) Venkat Balasubramani, and Inman's now famous annotated letter, leading to an IndieGoGo campaign to raise $20,000 (the amount Carreon/Funnyjunk demanded from Inman) for two charities: The National Wildlife Federation & the American Cancer Society.

Following that, Carreon told MSNBC he intended to shut down the fundraisers, and then bizarrely accused Inman of "instigating security attacks" against his website. Finally, on Friday he told Forbes that he wasn't backing down and that there had to be "something" in the California code that he could sue Inman over.

Apparently he's found something. As reported by both Ken at Popehat and Kevin at Lowering the Bar, Courthouse News has a notice saying that Carreon has filed a lawsuit in the federal district of Northern California. And, as mentioned above, he doesn't just sue Inman, but also IndieGoGo and the two charities. Yes, the two charities. I'll repeat that again: Charles Carreon appears to be suing two of the most well known charities because Matthew Inman asked people to donate to them. Ken's summary -- based on what limited info is available via Courthouse News:

1. The lawsuit is captioned Charles Carreon v. Matthew Inman; IndieGogo Inc.; National Wildlife Federation; American Cancer Society; and Does [Does are as-of-yet-unnamed defendants], Case No. 4:12 cv 3112 DMR.

2. Charles Carreon appears as "attorney pro se," meaning "I am attorney but am representing only myself"....

3. CNS included the following description of the case, which is most likely drafted by CNS upon review of the complaint: "Trademark infringement and incitement to cyber-vandalism. Defendants Inman and IndieGogo are commercial fundraisers that failed to file disclosures or annual reports. Inman launched a Bear Love campaign, which purports to raise money for defendant charitable organizations, but was really designed to revile plaintiff and his client, Funnyjunk.com, and to initiate a campaign of "trolling" and cybervandalism against them, which has caused people to hack Inman's computer and falsely impersonate him. The campaign included obscenities, an obscene comics and a false accusation that FunnyJunk "stole a bunch of my comics and hosted them." Inman runs the comedy website The Oatmeal."

As Ken notes, the summary from CNS may be flawed. In fact, it clearly is, because it says "Inman's computer" was hacked, and I'm sure the complaint means Carreon's. So take it with a grain of salt until the actual filings appear on PACER or Carreon shares them with others. However, there would appear to be a bunch of problems with the filing if the other parts are accurate. Let's start with the big one: Carreon is filing for himself, representing himself. According to the report above, it does not appear that he is doing this representing Funnyjunk. That raises significant questions about what standing Carreon has alone, unless he's arguing that Carreon is Funnyjunk as well. Either way, Carreon seems to rely on things said about Funnyjunk, but is still filing on his own behalf. That's just weird.

Blogger Nick Nafpliotis called Carreon on Friday and posted an interview with him, which reveals a bit more behind Carreon's thinking on the legal front, and may explain why IndieGoGo and the charities are included in the lawsuit:

Carreon replied that under California law, you must be properly registered to conduct a fundraiser, something he is certain that Mathew Inman (operator of The Oatmeal) and IndieGoGo (the crowdfunding site being used The Oatmeal) are not.

"You might think of it as the 'Pseudo Santa' law," he explained. "Anybody can get a Santa suit. Then around Christmas time, you can probably make pretty good money wearing one outside of Macy's, ringing a bell, and saying you'll give the money to the Salvation Army. But you can't do that."

Carreon went on to say that he had been in contact with the American Cancer Society and the National Wildlife Federation and confirmed that Indiegogo had not executed the proper fundraiser paperwork. He explained that this missing documentation gives a sponsoring organization the power to shut down a campaign that may bring a charity itself into disrepute or injure its goodwill...or might be "using a charity as a human shield for a slander campaign inciting people to cyber vandalism," Carreon added.

Even given all of that, I'm not sure why IndieGoGo, NWF or ACS were included. Even if we assume that Carreon is correct that this is some sort of "illegal" fundraiser, it seems like IndieGoGo should be protected under Section 230 of the CDA. Amusingly, since Carreon continually insists that Funnyjunk is protected under the DMCA's safe harbors, you would think he would be up on the 230 safe harbors as well. Separately, again, even assuming that Carreon's analysis is correct, I'm not sure why that gives him standing to sue. Others (the charities? the government?) would seem like more reasonable entities who could bring a case. But Carreon?

IndieGoGo has told others that Carreon did, indeed, request it take down Inman's fundraising effort, and it turned him down, but (unlike the DMCA safe harbors), that's not that big of a deal. There's no "takedown" requirement to retain immunity in Section 230.

Separately, I can't see where there's a trademark claim. Carreon has indicated that he has trademarked his name, but unless there's something in the filing that shows something completely different than what's currently been made public, I can't see how there's any trademark issue at all. Inman's statements may have mocked Carreon, but that's not trademark infringement. You'd have to be using the name in commerce in a manner that caused a likelihood of confusion in that people would somehow believe that Carreon supported Inman's actions. That is difficult to believe no matter how you look at this.

We'll wait to see what's in the actual filing, but from what's already been said, this seems like a massive uphill battle, and one not made any better by the fact that he appears to be suing two famous charities in the process.

Two other points:

1. In that interview with Nafpliotis, Carreon makes some odd justifications for why he thinks it's okay to blame Inman for various attacks on his site (and a fake Twitter account). He basically says that because the comics that Inman draws are "dehumanizing," it's fair to assume that the attacks are because of that -- and (I'm not joking) compares it to Disney drawing cartoons that mocked Japanese people leading to Truman dropping the bomb on Japan:

   "It might not have seemed very dehumanizing when Walt Disney made Japanese people look silly with buck teeth and big glasses who could not pronounce their 'R's or their 'L's. But it was dehumanizing, and the purpose was to direct evil intentions against them, which ultimately resulted in the only nuclear holocaust that ever occurred in the history of humanity. I don't think Truman would have ever done that if we hadn't so dehumanized the enemy."
   
   "When you dehumanize someone, that is the first step to inciting people. The emails that I've gotten...many of them wish me death or wish for the complete collapse of my law practice...and they are virtually all uninformed."

   If people are sending Carreon nasty emails, that's a pretty stupid thing to do, but it's silly to blame Inman for it.
   
   Carreon also hints that Inman might be responsible for someone setting up a fake Twitter account in his name which had some "offensive statements." His evidence that Inman was responsible? At the same time that the fake account tweeted some stuff, Inman posted a tweet mocking Carreon in somewhat offensive terms. That tweet did not link to or reference the fake account, but according to Carreon: "I don't know if that's coincidence. Why was he on twitter at the same time the impersonator was? I don't know."
   
   We've suggested in the past that Carreon might want to learn a bit more about how the internet works. And here's one reason why: many people who use Twitter are pretty much always on Twitter. There's nothing surprising or odd about being on Twitter all the time. Inman's tweet indicates that he uses TweetDeck, one of (if not) the most popular Twitter applications, which you leave running all the time and thus has you "on Twitter" basically all the time.
   
   
2. As most people know, you will find perhaps no person around who is more vehement in saying that copyright infringement is not theft. I have argued that at length for years. Copyright infringement is not theft. It's not theft, it's not stealing. It's just not. That said, in no way do I think that someone who discovers that their work has been infringed and then refers to it as "theft" or "stealing" has "defamed" someone else. That's just crazy. It's an inaccurate portrayal, but one that is used colloquially all too frequently. To rise to the level of defamation would be something else entirely. Of course, it does not appear from the description that defamation is even a consideration here, since the lawsuit is from Carreon not Funnyjunk.

Lastly, Inman here has definitely won in the court of public opinion, and Carreon's legal efforts aren't doing him any favors in that battle -- by just not knowing when to stop digging (and almost creating a Godwin's law reference).

Performing rights societies probably don't have the best reputations here on Techdirt, but just when you think they can't get any more outrageous in their demands, they do. Here are two stories from the Slovak Republic, both involving SOZA, the Slovak Performing and Mechanical Rights Society:

The recent case of the local village of Pohorela being charged EUR 62.40 [about $75] by copyright association SOZA because children sang copyrighted songs on Mothers’ Day has to be one of the most absurd cases of copyright being enforced in Slovakia.

TheDaily first drew attention to the Pohorela case by sharing it on Facebook at the end of May, but the case is not unique. Other villages and towns may also receive the same kinds of bills, like the one sent to the village of Helpa, which is being charged possibly for singing the well-known folk song celebrating the village called "To ta Helpa!", for instance.

Although the first paragraph mentions "copyrighted songs", the Facebook page referred to talks about "our folk songs", which would presumably not be in copyright (Slovak original.) In either case, it seems a bit extreme to charge for children singing to their own mothers. The second story seems more clear-cut: SOZA is trying to charge a village for singing a "well known" folk song about itself, which adds insult to injury.

The article quoted above notes that this is not the only problem with SOZA's invoicing habits:

Cinemas in particular are not happy with the fees, which are charged regardless of what film is showing, if there is any music in the film, and even though copyright fees are covered already in the film rental.

Paying for something you didn't have, or being forced to pay twice: sounds like collecting societies are the same everywhere.

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