Openness is really beginning to sweep through the European Union at all levels. Yesterday we wrote about the European Commission's ambitious plans to make the results of publicly-funded research freely available as open access; now comes news of a major opening up in the world of pharmaceutical data:

Europe's medicines regulator, criticised in the past for excessive secrecy, is opening its data vaults to systematic scrutiny in a move that will let independent researchers trawl through millions of pages of clinical trial information.

The change is a landmark in transparency that puts Europe ahead of the United States, according to critics of the $1 trillion-a-year global drugs industry, who have long argued for full access to trial data.

Such information is a treasure trove for scientists wanting to test drug company claims and potentially expose product deficiencies.

Pharma companies are keen to keep that data locked away for another reason: it acts as a very effective barrier to manufacturers of generics, who are unable to use existing clinical results in order to get approval for their drugs. Indeed, extending drug data exclusivity is one of the key proposals of the TPP agreement, as this analysis of two leaked US documents explains:

If pharmaceutical companies can get substantially longer data exclusivity, especially if it contains mechanisms for evergreening exclusivity such as that involving biologics, they won’t have to rely on patent protections to obtain marketing monopolies. Data monopolies of sufficient length will be superior to patents from the perspective of pharmaceutical firms because data monopolies give the same or higher level of monopoly protection without the need and expenses of proving that the product meets the relatively high standards for patentability.

That makes the EU's planned move even more significant, since it would signal that TPP's proposal to extend data exclusivity is not the only approach when it comes to regulating medicines, and that greater openness is also an option.

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One of the big problems with the patent system is that it's not an adversarial process at all. You only have advocates for why a patent should be granted. No one is on the other side arguing why it shouldn't be. The examiner is supposed to be neutral, but actually has some implicit incentives to find things more patentable than not. For example, patent examiners are often reviewed on their productivity in getting through patent applications. Considering the backlog of patents, this isn't a surprise. But since there's no such thing as a true "final rejection" of a patent, the inventor and their lawyers can keep coming back, asking the patent office to try again. But each time the examiner has to go back and review the same application all over again, that's time away from a new application, and thus hurts his or her "productivity."

Making matters worse, once a patent is granted, it has to be presumed valid under the law. Meaning that even though it has never actually been tested in an adversarial process, the courts simply assume it's a valid patent. The fact that when patents do get re-examined, somewhere around three quarters of them have to be adjusted, with previously approved claims rejected, certainly calls into question just how "valid" those patents are. One of the small changes in the patent reform bill that past last year, the America Invents Act (AIA), was that it will now be slightly easier to file documents with the Patent Office for a patent application under consideration, rather than waiting until after the patent is granted.

This is definitely a step in the right direction, though, I do wonder how widely it will be used. Part of the problem is that it's often not at all possible to tell what a patent actually impacts until after its granted and the holder sues or threatens to sue. And no one can watch every application to see if they might have some useful prior art or evidence of obviousness. Either way, the rules for such third party submissions go into effect September 16th, and the USPTO is releasing its official rules for how the process will work (pdf and embedded below). There is a fee involved -- $180 -- but it's exempted for your first submission on a particular patent application if that submission is less than three documents. That may be a bit limiting, but it does suggest that individuals with clear prior art or proof of obviousness might at least be able to weigh in a bit to convince the examiner that an application is totally bogus.

One of the most inspiring examples of a person using prosthetic limbs is Oscar Pistorius (aka the "Blade Runner") -- who will be the first leg amputee to compete with carbon fiber feet at the London Olympics. Pistorius was previously disqualified from the 2008 Olympics, but he'll be allowed to compete this year, potentially paving the way for other athletes to move over from the Paralympics. Here are just a few technological advances for artificial limbs that could create some cyborg-olympic athletes.

• Connecting severed nerves with robotic limbs needs a direct neural-prosthetic interface that could be made out of biocompatible polymers. The research could create prosthetics that are directly controlled by a user's thoughts, but such a system is still many years away from being a reality. [url]
• Paralyzed rats with spinal cord damage were given robotic legs that could respond to commands from the rats' brains, and these rats re-learned how to walk with several weeks of training. Maybe someday these little cyborgs will be as big as the Zhu Zhu pet craze... [url]
• Brain-computer interfaces are improving quite a bit, and one patient named S3 has 96 hair-sized electrodes implanted in her brain that can control a robotic arm well enough to lift a glass for a drink. The device used by S3 is a new version of Braingate that requires extensive training, but presumably, the technology will get even better and allow more quadriplegic people to have robotic help. [url]

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

We recently wrote about the fact that PIPA sponsor and head of the Senate Judiciary Committee Senator Patrick Leahy has received yet another cameo appearance in the latest Batman flick. We're sure it's because of his acting skills, rather than his ability to pass legislation that favors Time Warner (who -- coincidentally, of course -- is a major contributor to his campaigns). In response to this story, the good folks at Demand Progress have set up HolyConflictOfInterest.com with an original comic, "The Adventures of Leahy & Time Warner": Click through not just for a larger version, but also for tools from Demand Progress that let you tell your elected officials that you don't appreciate such conflicts of interest.

Update: By the way, we're hearing that the MPAA hosted a "special screening" of the new Batman movie for members of Congress and their staff. Now, that would normally run afoul of gift giving guidelines... but they worked around that by spending the first 15 minutes "educating members and staff on important issues" (take a guess what those might be).

Well, well. Last week, we posted an excerpt from Rob Reid's awesome Year Zero novel, and offered up free copies to the commenters who got the highest ranked voting. In retrospect, perhaps we should have realized this effort was going to fail. Whether it was "performance anxiety" from commenters with a free book on the line, a lack of something specific to comment on or (most likely) an unwillingness of people to vote since it might take away from their own chances of winning, the comments on the post got almost no votes. Only one qualifying comment got a serious number votes. One anonymous comment got a bunch of votes too, but you had to be a named commenter to win a book.

That means we're still left with four books to give away, and this time we're going about it a bit differently: posting four trivia questions/scavenger hunt items, and the first people to answer each of them in our comments (with some key conditions) get the remaining books sent to them (the first correct response to each question wins -- so if someone gets the first question right, and you answer the same question before someone else answers one of the others, you don't get the book). In order to get the book, not only do you have to get the question right, but you have to leave your email address with your comment (in the email field, not publicly) so we can reach out to you. You also have to respond within 24 hours of us emailing you (check your spam filters!) or we move on to the next person on the list. Yes, again, you have to be in the US or Canada (sorry about this one, but I believe this is due to Random House only having distribution rights in those two countries). Also, you can only win one book. So even if you can answer more than one question, there's no reason to do it, other than to be that guy... and no one likes that guy.

Okay, here are the questions. Get answering:

1. Link to a Techdirt post that mentions the person who narrates the audiobook version of Year Zero? (Feel free to name the individual too).
2. Year Zero is frequently compared to a famous sci-fi series that was a "trilogy" in five books. A few times on Techdirt, we've paraphrased a famous saying by the author of that series. What's the famous saying he said, that we've paraphrased multiple times?
3. The excerpt we posted includes the protagonist in the story, Nick Carter, reciting the "standard terms" that show up in "almost every" major label contract. He notes that most people think he's joking when he tells them that language, but he's not. Of course, Carter is just a character in a funny novel... but he's not joking. Point to three news articles/blog posts (anywhere, doesn't need to be Techdirt) that point to very similar (does not need to be identical) language in actual music contracts.
4. Rob has cleverly made sure that he cannot use the most obvious title for a sequel to this book. How?

Good luck.

So even as Apple has been successful in getting a US court to rule against Samsung for having a tablet that Apple thinks looks too much like an iPad, things are shaping up very differently in the UK. We already noted that a judge over there had rejected Apple's claims in the UK, pointing out that Samsung's tablet just isn't as cool as the iPad (leaving Samsung in the awkward position of celebrating the fact that it won the lawsuit due to its own lack of coolness). However, now reports are coming out that the judge has also ordered Apple to advertise online and in print that Samsung didn't copy the iPad.

The judge apparently told Apple to put a notice on its own website and in UK newspapers telling people that Samsung's Galaxy Tab -- which Apple is clearly afraid of -- isn't a copy. As you might imagine, Apple is not happy about this -- though it might as well include the stuff about Samsung's lack of coolness, if it must discuss things. Either way, Apple is protesting. According to the Bloomberg report linked above:

The notice should outline the July 9 London court decision that Samsung’s Galaxy tablets don’t infringe Apple’s registered designs, Judge Colin Birss said. It should be posted on Apple’s U.K. website for six months and published in several newspapers and magazines to correct the damaging impression the South Korea-based company was copying Apple’s product, Birss said.

The order means Apple will have to publish “an advertisement” for Samsung, and is prejudicial to the company, Richard Hacon, a lawyer representing Cupertino, California-based Apple, told the court. “No company likes to refer to a rival on its website.”

While I agree that Apple's lawsuit was a bad idea in the first place, and that the company should just compete in the marketplace, I'm at a loss as to the "damaging impression" that this lawsuit would have for Samsung. As the judge himself noted, the iPad is seen as being really cool. And the Samsung tablet... is not. So, why would it damage Samsung's reputation to have Apple claiming that the devices were too much alike? If anything, it seems like it should help Samsung by advertising which tablet Apple thinks is most like an iPad.

The FCC has been working with M-Lab to measure basic network diagnostics using an open source solution, providing public information about internet network performance. This seems like a good thing... though you can see why not everyone would like data public about the performance of their networks. Over the weekend, a warning went up that the telcos are pushing the FCC to stop using M-Lab and switch to their own ISP-managed diagnostics tools. Vint Cerf is raising the alarm about this:

Recently, the FCC measurement program has backed sharply away from their commitment to transparency, apparently at the bidding of the telcos in the program. The program is now proposing to replace the M-Lab platform with only ISP-managed servers. This effectively replaces transparency with a closed platform in which the ISPs -- whose performance this program purports to measure -- are in control of the measurements. This closed platform would provide the official US statistics on broadband performance. I view this as scientifically unacceptable.

For the health of the Internet, and for the future of credible data-based policy, the research community must push back against this move.

The FCC keeps insisting that it's committed to openness -- but all too frequently seems to give in to telco demands. So this warning is concerning.

For what it's worth, the telcos are claiming that Cerf is overreacting. In a response to his call for action, Verizon's David Young responded that there's nothing to see here, and that M-Lab and the telco efforts have co-existed and can continue to co-exist going forward.

Vint breathlessly suggests that the FCC is now backing away from this openness "at the bidding of the telcos" and claims the program is proposing to replace the M-Lab platform with only ISP-managed servers. THIS IS FALSE. ISPs have made no such request of the FCC nor has the FCC proposed to eliminate use of M-Lab’s servers.

What has been proposed is that, in addition to continuing to use the data collected via the M-Lab servers, the FCC and SamKnows may also rely on the ISP provided servers that have been in use since the beginning of the project. These ISP-provided servers meet the specifications required by SamKnows as do the M-Labs servers. In fact, it was only because of the presence of these non-M-Lab, ISP-donated servers, that SamKnows was able to identify problems with an M-Lab server that was affecting the results of the tests being conducted. M-Labs did not identify this server problem on their own. It was only fixed when SamKnows brought the issue to their attention. By the way, this problem forced the FCC to abandon a month's worth of test data, extend the formal test period and delay production of their report. Later, another M-Lab server location had transit problems that again affected results. This was the second M-Labs-related server problem in two months and once again, it was SamKnows, using the ISP-provided servers as a reference who identified the problem and brought it to M-Labs attention.

As with many such disputes, the reality may be somewhere in between the two claims here. It seems like Cerf's fear is that by establishing the telcos' servers on equal footing with the M-Labs' open setup, it opens the door to replacing the M-Labs' efforts and then potentially locking up the data. Young is correct that the openness is mainly due to FCC policy at this point, but that policy is dependent on the current leadership of the FCC, which could change. At the very least, it would be nice to see a stated commitment to keeping the information open on an ongoing basis, so that there isn't any need to worry going forward.

Wired has a troubling story of how the Senate Armed Services Committee is pushing a bill that would likely kill off an open source NoSQL project that came out of the NSA called Accumulo. Like many other such NoSQL efforts, the NSA basically took some Google white papers about its BigTable distributed database setup, and built its own open source version, with a few improvements... and then open sourced the whole thing and put it under the Apache Foundation. It's kind of rare to see such a secretive agency like the NSA open source anything, but it does seem like the kind of thing that ought to be encouraged.

Unfortunately, the Senate Armed Services Committee sees things very differently. As part of a 600-page bill that's being floated, it actually calls out Accumulo by name, and suggests that it violates a policy that says the government shouldn't build its own software when there are other competing commercial offerings on the market. The reasoning is basically that the government shouldn't spend resources reinventing the wheel if it can spend fewer resources using existing code. You can see the basic reasoning behind that, but applying it here makes little sense. As the article notes, here we're talking about software that's already been developed and released -- not a new effort to rebuild existing software. In fact, those who follow this stuff closely note that Accumulo did "break new ground" with some of its features when it was being built. To then kill it afterwards seems not just counterproductive, but could also create a chilling effect for government open source efforts, which seem like something we should be encouraging, not killing.

What's really odd is the close interest that the Senate seems to be paying to this. The discussion is very specific, naming Accumulo and some of the competing offerings on the market. They're specifically calling out this one product. Of course, as Julian Sanchez notes, there's a bit of irony in the fact that the very same Senate appears to have absolutely no interest in finding out how often the NSA spies on Americans... but sure is concerned about what database it uses to store all of the information it's getting.

Of course... all of this raises a separate issue in my mind: can the NSA even open source Accumulo? I though that creations of the federal government were automatically public domain, rather than under copyright. And, thus, putting it under a specific license might, in fact, present limitations that the government can't actually impose on the software.... Thus, shouldn't the software code actually be completely open as a public domain project? The government should be able set up an Apache-like setup, but one without any restrictions on the code.

Update: Just as we published this, news came in that this amendment was rebuffed, but the point remains: Congress keeps trying to sneak in little favors to Hollywood every chance it gets.

Congress continues to show that it learned absolutely nothing from the SOPA/PIPA mess earlier this year. While we've been focused on the problematic IPAA bill in the House, which would create a high level IP Enforcement "deputy assistant" within the Commerce Department, over in the Senate, Debbie Stabenow is looking to create another such role in the Treasury Department. We just mentioned an effort by the Senate Finance Committee to actually make the Special 301 report useful by having it go after internet censorship... but according to Politico's Morning Tech, Senator Stabenow has very quietly introduced an amendment to that effort, which would increase the role of the Treasury Department as Hollywood's private police force:

A tweak by Sen. Debbie Stabenow made available last night would add to the trade bill her own measure, the Protect American Innovation Act. Among other things, the amendment would establish the position of "director of Intellectual Property Rights Enforcement" at Treasury, while boosting the ability of Customs and ICE to find and seize infringing materials entering the country or to be exported.

Stabenow actually introduced this "Protect American Innovation Act" last year, in the midst of the fight over SOPA and PIPA, and very few people noticed, since all of the attention was on those two bills. But if you look at the details, it's just more of the same. It would increase the Treasury Department's role in intellectual property enforcement, first by establishing a "director of intellectual property rights enforcement" withing the Treasury. That position would be tasked with working closely with ICE -- and ICE would get its own new "coordinator of intellectual property enforcement." You remember ICE. Those are the folks famous for censoring websites based on no evidence, just the RIAA's say-so. Oh, and remember Dajaz1? That's one of those sites that ICE erroneously censored. One of that site's admins lives in Michigan -- Stabenow's home state. But, apparently, Stabenow would rather carry water for Hollywood than protect her own constituents from gross overreach by the US government.

Given how badly ICE screwed up that job, it's amazing that Stabenow wants to increase their authority. But that's what's happening. The bill defines "piracy" as "activities related to production of or trafficking in unauthorized copies or phonorecords of works protected under title 17, United States Code, or related laws." And we thought "piracy" was defined as "an act of criminal violence at sea." But, notice just how broad that text is there. Any production of "unauthorized copies" of works protected under the copyright act. Yeah, if you make a copy... the Treasury Department and ICE might be able to target you.

The bill also says that Treasury/ICE/Customs should get training in new technology for "detecting and identifying, at ports of entry... pirated goods." Given how broad this is, you could read this to mean that your phones, MP3 players and laptops may get scanned at the border for all of the music and movies you have. There was talk of such things in ACTA, but they were rejected when people spoke up -- and now they're back in a bill from Senator Debbie Stabenow who apparently slept through what happened in response to SOPA/PIPA and ACTA.

The bill also gives law enforcement within Treasury/ICE/Customs pretty broad powers, including issuing fines for importing "pirated" goods, and says that such fines "may not be mitigated" unless ordered by a court or "pursuant to regulations issued by the Commissioner." And such fines "may not be dismissed or vacated." In other words, if they catch you with pirated works, they may be required to issue fines. In fact, it says that the mitigation, dismissal or vacation of such fines can only happen for "extraordinary cases." Having a few unauthorized songs on your iPhone isn't extraordinary.

But wait... there's more. While the IPAA, as discussed, would increase US diplomatic efforts to push for IP enforcement abroad... and so would this bill, though in a different area. Rather than IP attaches, now ICE and Customs would be tasked with spreading Hollywood-style maximalism to other countries by increasing staffing to provide training and assistance to other countries in "detecting" such "pirated goods."

There are also a ton of small changes to copyright law, which would take quite a few hours to dig in and see what they actually do. As is typical of these kinds of bills, they don't tell you what the bill would actually now say -- they just say things like "strike from [phrase y] to [phrase x] and insert [random string of terms]." And, sometimes (including here), even these phrases then point you to other laws that you have to piece together as well. You have to sit down, pull up the original, figure out what's being taken out, what's being inserted and what it all means. There appear to be about a dozen such changes which we'll have to go through later, but it wouldn't surprise me to find more trouble in there.

For example, just a quick look at Section 143 of this bill might appear like a minor textual change. It says you have to add the following to a different bill (19 U.S.C. 1595a(c)(2)). What's that? Oh, it's the rules for the government forfeiting your property. And what's the text?

‘(G) it is a technology, product, service, device, component, or part thereof the importation of which is prohibited under section 1201(a)(2) of title 17, United States Code.’.

Okay piece that back into the bill above, and you see that what it's actually doing is increasing the types of things that can be forfeited by ICE and Customs. But how so? Well, you have to jump over to section 1201(a) of Title 17, which is the anti-circumvention provision of the DMCA.

When you sit back and parse it all together, you realize that they're now allowing ICE/Customs to forfeit any circumvention device. Considering how many "circumvention devices" you already own without realizing it, you should be concerned.

Either way, I'm sure there's more in there, but this is just a quick read, because, again, this effort was announced yesterday for markup today. And, yes, while Stabenow released this bill last year, it got little attention because no one thought it was going anywhere. To suddenly jump the line and try to attach it to a separate, important bill, shows the same sort of attempt to sneak through laws for Hollywood without public scrutiny.

For years, we've highlighted the USTR's silly "Special 301" report, in which it lists out "naughty" countries who aren't doing enough to meet Hollywood and the Pharma industry's definitions of what intellectual property laws should look like. This is based on no real methodology, other than that each year, the big industry associations submit filings to the USTR on which countries they don't like, and the USTR basically compiles them, and puts out a list of the "bad" countries. It's so ridiculous that Canada -- whose copyright law has been much more limiting than US law in many ways, but still gets put on the naughty list every year for not (until now) imposing digital locks provisions -- has an official policy not to recognize the legitimacy of the Special 301 report.

That said, as long as the USTR is putting together a list of "naughty" countries, why not make it actually a useful list? Senate Finance Committee boss Max Baucus has introduced a bill to normalize trade relations with Russia -- which has been a key concern of the committee for a while. Buried in the plan is something interesting:

In addition, the proposal amends section 182 of the Trade Act of 1974 by requiring that the report under section 182 include a description of laws, policies, or practices of the Russian Federation that deny fair and equitable treatment to U.S. digital trade.

This may not seem like much, but it could be a big deal. Section 182 of the Trade Act is also known as 19 USC § 2242, which basically sets up the Special 301 report.

So, basically, this little tidbit could shift the Special 301 report so that it doesn't just identify countries who Hollywood and Big Pharma don't like, but will also check to see if Russia is "denying fair and equitable treatment to US digital trade." What does that mean? Well, you may have noticed (as we did) that Russia just approved a new internet censorship bill, which certainly could deny "fair and equitable treatment" to certain digital goods.

Right now, it looks like (for unclear reasons) this provision is just limited to Russia, but if that works, it's not difficult to see it expanded globally. Wouldn't it be interesting if the USTR was actually forced to make the Special 301 report useful, by not just having it focus on intellectual property issues, but also on whether or not a country was censoring the internet and blocking useful internet services?

In the wake of the recent defeat of ACTA in the European Parliament, the key questions are not just what the European Commission will now do, but what lessons the EU and US will learn from it, especially in the wake of the equally dramatic derailing of SOPA earlier this year. At the annual meeting of the Transatlantic Intellectual Property Rights (IPR) Working Group in Brussels last week, both the EU and US agencies and rights holders let slip a few hints about what they are really thinking.

Here, for example, is how the EU views the post-ACTA situation, as reported by Intellectual Property Watch:

Where IP rights once was a field for experts, now it drives the masses to the streets, the European Commission said referring to recent protests against the Anti-Counterfeiting Trade Agreement (ACTA). Without a much stronger commitment from rights holders, the rejection of ACTA would just be the beginning, Commission representatives said according to observers.

This is extraordinary: rather than taking on board the concerns expressed by tens of thousands of European citizens about how ACTA was negotiated, and the way it sought to preserve outdated business models by weakening online privacy and freedom, the European Commission instead wants rights holders to fight back against this wave of protests. No sense, then, that maybe the Commission and copyright industries should possibly change their position to reflect the clearly-expressed wishes of European citizens, only a worry that without some kind of concerted action, things might swing slightly in the public's favor for once -- perish the thought.

The European Commission wasn't even prepared to consider splitting ACTA into two separate treaties -- one dealing with counterfeits, the other with online copyright issues:

Jean-Luc Demarty, the director general of the Trade Directorate of the European Commission, said at the meeting with regard to question of a potential split of counterfeiting and copyright piracy, IPR could not just be for bags and t-shirts.

This betrays a woeful -- or perhaps willful -- lack of understanding about why physical counterfeits and digital copies are fundamentally different, and need to be addressed with different means.

The US side was not much better:

George York, deputy assistant to the US Trade Representative for IP and Innovation, and Susan Wilson, director of the Office of Intellectual Property Rights in the US Department of Commerce, confirmed during the meeting that despite ACTA’s failure in the EU, the ratification process would go on in the US, despite concerns by some experts about potential inconsistencies with US laws.

Again, no hint that maybe ACTA was the wrong solution, or that it lacked legitimacy without the support of citizens in signatory nations. Just the insistence that the US would plough ahead, regardless of any inconsistencies with those tiresome laws.

As if that weren't enough, the meeting's participants went on to express that they are "highly skeptical" about open access to scientific knowledge -- despite the huge and growing support for it among scientists themselves. The old FUD that open access somehow undermines peer review was rolled out -- even though no one who understands open access even minimally could possibly make that absurd accusation.

The US and EU administrations also both said that India's compulsory licensing of Bayer's anti-cancer drug rang "alarm bells"; tellingly, the EU side added that the EU-India Free Trade Agreement currently being negotiatied "still needs work" -- presumably so as to limit India's freedom to issue more such compulsory licenses.

The nearest thing to a tacit admission that the defeat of SOPA and ACTA indicated something was seriously wrong with the whole system came from William E. Kennard, the US Ambassador to the EU, who boldly suggested that legislators still have not got the balance in this area "quite right". Such a laughable characterization of the chasm that separates what the law tries to impose and what the public now believes is reasonable shows just how little US and EU officials and rights holders have really grasped what this year's extraordinary events mean for copyright -- and for them.

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Back in April, a US judge pointed out that US criminal law requires serving those accused of criminal activities and Megaupload, as a foreign-based corporation, might not be subject to such service -- potentially killing the lawsuit against the company (though, not against the individuals who run the company). The Justice Department has now hit back with a filing mocking the idea that Megaupload could avoid criminal charges as a company (pdf and embedded below).

The filing focuses on how Megaupload had extensive operations in the US, including having many of its servers hosted here -- and even had two separate CEOs at various points who reside in the US (including Swizz Beatz, who the filing notes, has refused to cooperate). It further argues that there is no rush to serve the company, and that it can do so once the execs are extradited to the US -- or it can serve them at the office listed in Hong Kong. Admittedly, part of this fight is really about process technicalities, so I wouldn't make too big a deal of them. However, there are legitimate jurisdictional questions about what the standards are if the US can go after a company anywhere in the globe, just because it's online. That could certainly come back to haunt the US, as US companies are frequently targeted by other countries. Having a case like this could be used as justification to retaliate against US companies.

The filing also highlights something that is somewhat self-contradictory about the US's case. In an effort to argue US jurisdiction, the DOJ argues that Megaupload has been involved in civil lawsuits (on both sides) in the US. That is true... but that seems to weaken another contention in the DOJ's wider case: that it had to take the actions it did because Megaupload was somehow "unreachable" as an offshore "rogue site." The actual evidence, as noted by the DOJ itself in this filing, proves otherwise.

Well, this is confusing. A few months ago, we wrote about how a composer, Melchior Rietveldt, was in a weird situation in which the song he wrote for a Dutch anti-piracy effort was showing up on DVD anti-piracy ads -- even though his contract quite specifically limited the use of the work to a local film festival. When he discovered that his song was all over some top selling DVDs (including Harry Potter) he sought compensation, going to local music collection society Buma/Stemra, asking them to get the $1.3 million he believed he was owed. Buma/Stemra initially ignored him, and then there was a weird situation in which a Buma/Stemra board member tried to offer to "help" Rietveldt, with some questionable conditions attached, including getting a cut of the money owed.

Apparently, the latest in the case is that Buma/Stemra has now been told to pay Rietveldt €20,000 and attorneys' fees -- and to continue its efforts to get him the royalties actually owed. And yes, this seems a bit confusing. Remember, it was the anti-piracy group and the movie studios who appeared to violate his copyright (yes, on his anti-piracy song). Buma/Strema's job was supposed to be to collect the money. So how is it that they're now the ones being fined? It appears some of it becomes a contractual issue in which Buma/Strema promised to try to collect the fees owed, but apparently didn't do enough after it decided it would be too much work to actually track down those who used the song. The judge in the case noted that, at the very least, Buma/Strema had a duty to inform Rietveldt that it had given up after promising otherwise. Either way, the end result is that the collection society now owes Rietveldt more money and has to continue trying to collect even more. All over an anti-piracy song that was pirated by anti-piracy groups (mainly NVPI, who is apparently the parent group for the well-known anti-piracy organization BREIN).

One of the main concerns of those who worry about net neutrality is how a network provider might block or charge extra for competing services. For example, telcos who still make a fair bit of money from voice services might not like competing services like Skype. Or... Apple FaceTime. So it's interesting to see a report from 9to5Mac suggesting that AT&T may be planning to charge extra to use FaceTime over cellular. This came out when testing iOS6 and receiving a popup requiring "activation." Here's the screenshot of what 9to5 saw: This does not absolutely mean that they're going to charge. Currently, FaceTime only works over WiFi, but iOS6 is set to enable it for cellular. It's possible that this popup is just because iOS6 is still in beta, and it's just a generic message for a service that is not yet available. But it's at least raising concerns about the intentions of AT&T, with groups like Free Press already warning that this would violate existing (if contested) FCC rules on net neutrality (which, it should be noted are very, very limited when it comes to mobile services). To be honest, I'm not sure why AT&T would actually go down this path. It's already trying to cap and/or meter mobile bandwidth, so it already has a natural restriction on usage. Furthermore, since the iPhone is now widely available on other platforms, charging extra for FaceTime seems like a perfect strategy for driving iPhone users to other mobile operators.

This isn't a huge surprise, but yesterday, we wrote about some comments by Judge David Harvey in New Zealand concerning region coding on DVDs and the New Zealand/US negotiations over the TPP agreement. None of this had anything to do with Megaupload or the Dotcom case, but at one point he referred to a tweet that did a slight satire on the famous saying, and noted that "we have met the enemy and he is [the] US." The press was already blowing this out of proportion -- suggesting, totally incorrectly, that he had "called the US an enemy" when it came to copyright law. That's not true at all. Beyond the fact that he was paraphrasing a common saying in a clearly hyperbolistic manner, the issue he was talking about was very specific to anti-circumvention issues related DVD region coding, and nothing, whatsoever to do with the direct issue in the case.

That said... as many people are noting, Judge Harvey, recognizing the press furor about all this has stepped down from the case and will allow another judge to pick up the extradition issue down the road. This is unfortunate, as Judge Harvey is noted as one of New Zealand's key internet law experts, who really understood these issues at a deep level. Still, it's unclear if this change will have a huge impact on the case. The judge taking over for Harvey, Judge Nevin Dawson, has also been involved in the Megaupload case, and was the judge who released Dotcom on bail, despite pressure from the US to keep him locked up. Furthermore, Harvey and Dawson are district court judges, and it seems likely that, in the end, this will involve New Zealand's High Court, which is already engaged and has already ruled against the US.

But, here's the bigger issue: we see stories of judges in big copyright cases all the time who have strong ties to pro-copyright or copyright maximalist organizations... and people shrug and move on. Let's just say, for example, if Judge Harvey had said that he agreed with New Zealand's efforts to join the TPP because he thought that New Zealand needed stronger anti-circumvention rules to protect DVDs, would anyone even blink an eye? I doubt it.

Furthermore, travel around the globe, and you find the exact opposite situation in many cases, where the judges did not step down. Most famously, over in Sweden, the judge who heard The Pirate Bay trial had close ties to the copyright lobby, and was a member of a few organizations that worked towards promoting stronger copyright law. It seems like that would be a much more direct and obvious conflict than Judge Harvey's... yet that Swedish judge stayed on. Similarly, here in the US, Judge Beryl Howell, who bucked the trend in copyright trolling cases, by allowing cases to move forward on questionable theories, was just recently an RIAA lobbyist, and prior to that had helped write the DMCA, while a Congressional staffer. And, yet, she remained on the case.

It seems that there's a pretty clear double standard at work here. If you're strongly pro-copyright, no one blinks an eye if you are hearing copyright cases. But, if you make an offhand joking comment that's marginally critical of US copyright policy in one specific area, totally unrelated to the case at hand... you step down.