We already wrote about David Lowery's rant against a young girl for not paying enough for her music, noting that his whole focus seemed to be on pining for some mythical past that never existed, rather than dealing with market realities. Some folks have suggested that we "ignored" the moral arguments he was making, which Lowery's supporters insist are "resonating" with people. Even the NY Times and the LA Times both have discussed it, among many others. The NY Times' Ben Sisario gets it right, noting that "history has shown that heavy-handed moral arguments about music — or any other form of online entertainment, for that matter — are seldom effective." The LA Times' August Brown, however, seems to skip over all the factual errors, misleading statements and just outright laughers to suggest that the post is worthwhile (playing to the hometown Hollywood crowd, it seems).

Lots of others have weighted in as well, including musicians like Erin McKeown, who notes that "artists must generate their own solutions", and another Emily White (who happens to have founded some record labels), and says that the other White's post was dead on and she's ashamed that the music industry is so far behind giving consumers what they want.

Then there's long-term music industry guy, Wesley Verhoeve who makes a number of good points in his writeup, including the key one on the moral question, which was why we didn't bother to dig into it originally:

This is not about morals. This is about smarts. It’s not about being right or wrong. It’s not about rebelling. It’s about a giant shift in consumer behavior and how we as an industry deal with that.

The moral claim is a silly one. It's a distraction that sounds good but is meaningless. The issue here has nothing to do with morals. And that's especially true if you read the details of Emily's original post on NPR, in which she notes that she doesn't do "file sharing" per se, but gets her music from a variety of sources, including friends and platforms like Spotify. Lowery's real argument isn't about "piracy", it's about a failed business model -- because he's even pushing this ethical guilt trip on legal offerings like Spotify, because (according to him) they don't pay enough.

When you look at the details, you realize that Lowery isn't making a true moral claim. He's claiming that any business model, whether its legitimate or not, that allows musicians to not make enough money is, inherently, immoral. But that's ridiculous. If that's the case, then the old record label model is even more immoral, in that it paid next to nothing to tons of artists and then got to keep their entire copyright. Lowery's math is laughable. He talks about advances, but leaves out that those "advances" are then used to pay for everything, leaving almost nothing for the actual artists.

This is about failed business models, not morals. If you have a bad business model, you fail. End of story. If you have good content, an ability to connect with fans, and a good business model, you'll absolutely succeed today. We see it over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over again. And those were just the stories I could remember off the top of my head. There are tons more.

Point being: there are a ton of people who have realized that they're much better off under the new system. There are some people, like Lowery, who feel they're worse off. At that point, you have to realize it's not a moral issue, it's a business model or a market issue. If it were purely a moral issue, there wouldn't be so many stories about successes in the new world, because that would be impossible. All of those artists would be suffering. But the fact that so many are finding success shows that it's really about the choices being made by the artists themselves. Do they embrace what the consumers want -- which was all that Emily was really pointing out in her piece -- or do they scold them and demand that they support them in the old way?

It's got nothing to do with morals, because there isn't a moral question here. There are tons of business models that work today and work amazingly well. I am sure -- because he's brought it up before -- that Lowery or his friends will point to some Bureau of Labor stats claims about the number of full-time musicians declining. That is, at best, misleading. Remember, in the same period, the major record labels themselves have become even more focused on putting all of their effort behind one or two superstars. It's that old system that has resulted in a focus on a very very small number of professional musicians. If you look at independent artists they're growing rapidly.

And, if you know anything about the pace of innovation, you know that it takes those who are focused on the old system quite some time to catch up. So it's no surprise that plenty of musicians of Lowery's era simply refuse to really embrace what's available (and, no, pointing out that you have songs on iTunes is not the answer -- though I find it amusing that Lowery scolds White for not using iTunes when he, himself, once claimed that iTunes adds no value and is nothing but a parasitic "host").

About six years ago, we wrote about why there is no moral question to answer, because if the economics says that everyone can be better off -- i.e., musicians can earn more money and consumers can get what they want -- then there is no moral quandary or conflict. But, of course, there are some people who are "worse off": Lowery and his friends. But the question is whether that is due to the choices of the people he scolds -- the fans -- or through his own failure to put in place a business model that works.

Companies fail all the time. Lowery uses the emotional stories of two musicians who took their own lives to add additional weight to his moral argument. But, up here in Silicon Valley, you can't throw a stone without hitting a failed entrepreneur. And sometimes they, too, take their lives. It's very sad. Having your business fail on you is no fun at all. I know, I've been there. But it's not a moral issue. No one had a moral requirement to give me money when the startup I worked on in the 90s flopped. It was gut-wrenching, and massively depressing. But I had to move on and do something different -- something that had a market that was willing to pay. I figured that out. That's the same thing that many musicians are going through today. They are facing tough challenges, not unlike entrepreneurs. Many fail, some succeed. We recognize that as capitalism. But, for whatever reason, many of those failing today seem to want to turn it into a moral issue.

It may pull heart strings, but it won't solve the business model issue.

If you look at the history of copyright law, it's really a never-ending story of the law adjusting (often quite awkwardly) to deal with changes in technology that the law never predicted and wasn't prepared to handle. We see this manifest itself in many different ways today, including the whole question of "ownership" in a digital age. When you "buy" a digital video or song, did you really buy it? Or did you just license it? Because copyright law doesn't handle this well, we have a sort of Schrodinger's cat situation, in which companies claim it's either a license or a sale depending on who's suing whom. In other words, it's a complete mess.

Entering the fray with a unique idea as an attempt to solve that, some folks (and a company who likely seeks to commercially benefit from this idea) are trying to convince the Copyright Office to create a new consumer ownership registration system, dubbed "circle section" after the character they'd like to use for it:
Unfortunately, they're marketing it like lawyers, rather than marketers, so there's a lot of verbiage surrounding the description everywhere they talk about it, but the basic idea is pretty straightforward (if I understand it correctly):

If you buy something digital, you can "register" your ownership right in that particular copy, which then would grant you basic ownership rights, including rights to format shift the content and to resell it under first sale rights.

The folks behind this project have set up a Change.org petition in support of this, where they're seeking 200,000 signatures, though, currently they have very, very few (again, perhaps an issue of being lawyers, not marketers). Separately, they've chosen an odd strategy for pushing this effort: filing a petition with the Copyright Office as a part of the process by which the Copyright Office comes down from the mountain every three years and declares which products can ignore the DMCA's anti-circumvention clause. Except... this project has nothing to do with that. So, the backers have filed a separate motion, in which they basically admit that this is outside the rules... but they're doing it this way because if the Copyright Office accepts the proposal, than the whole question of ignoring anti-circumvention issues becomes moot, because a registry of consumer ownership would make it pointless. Or something like that. You can read the full motion below.

This seems like an incredibly long shot no matter how you look at it, and I'm not sure that trying to jump into the magical anti-circumvention clearance debate is such a smart move here. That said, I can see how a proposal along these lines could be interesting as a possible way to deal with the question of whether or not you "own" the digital products you thought you bought. At the very least, I'd be interested in hearing what other people think about it. Personally, I wonder if it's really necessary, or if it would just become seen as another burden for users, needing to register and track their registrations.

Jeffrey Tucker has an all around fantastic essay on capitalists who fear change -- discussing how companies and industries in an otherwise capitalist/free market society freak out when they face competition from disruptive innovation. They go to amazing lengths to claim that it's not real competition or innovation they face, but something that must be illegal, immoral, unethical or the death of all things good and holy. The technopanics set in with alarming frequency, and in the end, they are always wrong. The end result ends up being bigger and better than ever before, even if some of those legacy players don't make it through. Tucker tells the story wonderfully:

Through our long history of improvement, every upgrade and every shift from old to new inspired panic. The biggest panic typically comes from the producers themselves who resent the way the market process destabilizes their business model.

It was said that the radio would end live performance. No one would learn music anymore. Everything would be performed one time, and recorded for all time, and that would be the end.

Of course that didn’t happen. Then there was another panic when records came out, on the belief that this would destroy radio. Then tapes were next and everyone predicted doom for recorded music since music could be so easily duplicated (“Home Taping is Killing Music”). It was the same with digital music: surely this would be the death of all music!

And think back to the mass ownership of books in the 19th century. Many people predicted that these would destroy new authors because people would just buy books by old authors that were cheap and affordable. New authors would starve and no one would write anymore.

There is a pattern here. Every new technology that becomes profitable causes people to scream about the plight of existing producers. Then it turns out over time that the sector itself thrives as never before but in ways that no one really expected.

Tucker includes other examples, but then explains the reality of innovation and profits. Profits are a temporary thing: because copycats do come along. But that's a good thing, because it forces greater innovation, as others seek to collect profits. You profit by being unique and different, and you encourage that to continue by letting others copy. That leads to more incentives to keep innovating and keeping make the world a better place. But, of course, that's hard, and companies want to keep their profits. So they move away from free market capitalism, towards crony capitalism:

This is why business is always running to government for protection. Kill this crazy new technology! Stop these imports! Raise the costs on the competition! Give us a patent so that we can clobber the other guys! Impose antitrust law! Protect me with a copyright! Regulate the newcomers out of existence! Give us a bailout!

And, of course, the public often accepts the moral panic story. Hell, I'd bet that even the companies making those claims -- completely out of self-interest -- believe the horrible things they're predicting from these new technologies. Jack Valenti was being sincere when he thought the VCR would destroy Hollywood. He was wrong. They're always wrong.

Here is a striking fact about the human mind: we have great difficulty imagining solutions that have yet to present themselves. It doesn’t matter how often the market resolves seemingly intractable problems, we still can’t become accustomed to this reality. Our minds think in terms of existing conditions, and then we predict all kinds of doom. We too often fail to consistently expect the unexpected.

This poses a serious problem for the market economy, which is all about the ability of the system to inspire discovery of new ideas and new solutions to prevailing the problems. The problems posed by change are obvious enough; but the solutions are “crowd sourced” and emerge from places, people, and institutions that cannot be seen in advance.

Capitalism is not for wimps who don’t want to improve. If you want guaranteed profits for the few rather than prosperity and abundance for the many, socialism and fascism really are better systems.

The full piece is absolutely worth reading.

Kids are notoriously picky eaters when it comes to anything that isn't a dessert. Parents aren't helped when their kids are bombarded by ads on TV for all kinds of junk food. But here are a few food efforts that might divert kids' attentions back to healthier foods.

• Disney is adopting new standards for food advertising on its shows targeting kids and families -- to promote fruit and vegetable consumption and meet healthy nutritional guidelines. Awesome, now all healthy food will be approved by Mickey! [url]
• Mickey Mouse isn't the only fictional character who can influence what kids eat. Superheroes can, too. What would Batman eat? [url]
• Food trucks are trendy now, so what better way to bring free meals to kids? Sounds better than an ice cream truck... [url]
• Exercise your palate and try new foods that are bitter. Instead of sticking with salty and sweet (which are generally associated with junk food), a more bitter-flavored diet might provide a healthier range of food. [url]
• To discover more food-related links, check out what's floating around in StumbleUpon. [url]  

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

Regular Techdirt readers, as well as fans of hip-hop and/or Gnarls Barkley, will be familiar with Danger Mouse, the highly respected producer who operates well outside of copyright law. He's perhaps most famous for The Grey Album—a mashup of Jay-Z and The Beatles (praised by the original artists) that sparked EMI to go on a copyright rampage, in turn leading to the Grey Tuesday movement that made the album one of the most popular bootlegs ever, until EMI eventually gave up. Later, he released an album to stores as a blank CD-R with artwork and liner notes while hinting that fans should find the music itself "by whatever means", since he knew there was no way he could legally sell it. Danger Mouse is one of the perfect examples of how copyright is interfering with culture and creativity in very real ways, contrary to its supposed goals.

So it's surprising, and very disappointing, to learn that Danger Mouse and The Black Keys are suing over the unauthorized use of their music in commercials:

The Black Keys sued Home Depot Inc. (HD) and Yum Brands Inc. (YUM)’s Pizza Hut, alleging the companies used the rock duo’s songs in commercials without authorization.

Patrick Carney and Daniel Auerbach, known as the Black Keys, sued Home Depot for the unauthorized use of “Lonely Boy,” and sued Pizza Hut and its advertising company, Interpublic Group of Cos., over “Gold on the Ceiling,” in separate filings yesterday in federal court in Los Angeles. The group said Pizza Hut and its ad agency created a commercial for a product called Cheesy Bites Pizza that “prominently features significant portions” of “Gold on the Ceiling.” Home Depot ran a commercial for its Ryobi brand of power tools that uses parts of “Lonely Boy,” the band said.

...

Also suing the companies is co-writer Brian Burton, known professionally as Danger Mouse. The plaintiffs asked for jury trials of the copyright-infringement suits.

Now, obviously there are a few key differences here. The in-depth remix work of artists like Danger Mouse has a strong transformative fair use argument that remains mostly untested in court, while the same cannot really be said for Home Depot and Pizza Hut commercials. Moreover, while it would not have been prohibitive for these big companies to seek a license, it was pretty much impossible for Danger Mouse to release his work legally. And, generally speaking, a lot of people are going to find it easier to support a person who defies copyright for the sake of art than a company that defies it for the sake of a commercial.

Nevertheless, I think this is a pretty bad move on Danger Mouse's part, and an unimpressive one. He's likely to face a lot more copyright issues in his career—as are artists he's inspired with his incredibly popular, but often infringing, work—and he'd be in a much better position to fight them if he could show that he never went after anyone with his own copyrights. There are much better ways to deal with a situation like this. It's the sort of thing the internet pays attention to, and if he had simply been open, human and awesome in informing people about what happened, it's likely that his supporters would have mobilized, and pretty soon the companies would be banging down his door in the hopes of reaching an agreement and shaking hands in public. Hell, he probably could have remixed the commercials and made something infinitely cooler, spreading his message that way and making the companies look silly. By going the legal route, he comes off as somewhat hypocritical, despite the differences between the situations.

A lot of people think, because we generally oppose the aggressive enforcement of copyright here at Techdirt, that we think any and all copying should run rampant. But that's not true. If someone is being genuinely "exploited" (a favorite term of copyright maximalists), then there are ways to address that—and the best one is by letting the public decide. Social pressure is an incredibly powerful thing, and employing it before running to the courts allows these situations to be resolved in much more natural ways that actually reflect the development of our shared, public culture. Sure, sometimes you run up against an intransigent Charles Carreon—but even then, you can apparently raise a bunch of money for charity and come out on top in the court of public opinion. Meanwhile, you leave the doors open to an amicable solution—maybe even one that creates new opportunities for both parties—which is a virtual impossibility once the legal nastygrams start flying.

We've heard of police very frequently overreacting to things and sending in SWAT teams when they aren't necessary. We've also heard of them sending SWAT teams to the wrong place. But this latest story, found via Radley Balko (who tracks these things like no other) may be the most insane yet. It involves police sending a SWAT team and breaking into the wrong house (whose front door was open) in response to some internet trolls. I'm not kidding.

The issue was that on a Topix community forum for Evansville, Indiana, someone claimed that a list of police staff had been "leaked." Some trolls in the comments spoke out against the police -- and one certainly went too far, suggesting that a certain officer's house was going to be shot up. Rather than investigating the issue, the police got some info on where the comment came from (or, rather, where they thought the comment came from) and sent the SWAT team and a TV news crew to the home of Ira and Louise Milan -- whose front door was open. Now, they could have rang the doorbell and spoken to them. But, instead, they broke down the screen door, broke the front window, and tossed a flashbang into the living room.

And... all for naught. While they seized a bunch of computer equipment, it turns out that no one in the house had anything to do with anything. Something they could have ascertained by, you know, talking to people in the house. The police are defending their massive overreaction because.... the internet!!!!

“This is a little more difficult that a traditional crime scene, because we’re dealing with the Internet. They definitely weren’t expecting (a SWAT team at the door). The reason we did that is the threats were specific enough, and the potential for danger was there.

“This is a big deal to us,” Cullum said. “This may be just somebody who was online just talking stupid. What I would suggest to anybody who visits websites like that is that their comments can be taken literally.”

Yes, so because the police might overreact, you should watch what you say online. And also always be ready for a SWAT team to show up, in case a stranger you know nothing about says something bad online. After all, it's "the internet."

Twitter is usually pretty good about protecting people's right to do parodies, but apparently someone there got a little sensitive about a parody account called CascadedBug, after the supposed cascade bug that caused quite a bit of downtime. Apparently Twitter suspended the account. Then unsuspended it. Then suspended it again. Then unsuspended it again. No matter what, it seems ridiculous that the account was ever suspended. Twitter, whose execs normally have a decent sense of humor, would have won a lot more points with the public by just tweeting at the account, rather than suspending it...

It happens at least once a year: some major copyright maximalist organization comes out with some sort of "copyright education campaign" targeted at children. These programs are always high on propaganda and short on facts. They rarely include full or clear explanations of things like fair use, or the true intention of copyright (benefiting the public). The latest such attempt is happening in France, where three-strikes agency Hadopi is proposing a propaganda campaign at a big kids' event called "Kidexpo." Numerama, who got its hands on some details of the plan, explained that the goal is to "raise awareness" of issues related to copyright and creativity.

But, here's the thing: all of these programs seem to assume, falsely, that kids are complete idiots who can have basic common sense brainwashed out of them. That's not the case. As we've seen for the better part of a decade, kids who attend these "sessions" know a lot better than the people teaching them just how ridiculous they come off, and don't take them very seriously. No matter how many times this strategy fails, however, some clueless adult decides that kids can be brainwashed if they just try again. It's even better when they include silly mascots.

While it's amusing sometimes to watch the maximalists flail around like this, you have to wonder if they'll ever recognize that kids aren't stupid, and pushing obvious propaganda to them doesn't make them unable to understand how technology works.

A few years ago, I noted the seeming irony in the fact that there appeared to be a decent amount of overlap between groups of people doing amazing altruistic things on sites like Reddit, while also doing amazingly troll-tastic things in places like /b/. Groups getting together to "do something" are a powerful force, and often are a powerful force for good. But they can also get out of hand, and turn into questionable mob-like vigilante-ism. However, it's not often that you see both such forces come together in the same story. However, that appears to be the case with the amazing story concerning upstate NY school bus monitor, Karen Klein. If you've been buried under a rock somewhere, Klein, a 68-year-old grandmother, has a low-paying job as a school bus monitor for a middle school in upstate NY (Greece, near Rochester). Middle school kids can be incredibly cruel, and a group of kids spent a bus ride mercilessly mocking Klein and filming the interaction. Someone else saw the video being passed around on Facebook and posted it to YouTube, where it quickly racked up millions of views, with tons of downvotes. The video is heart-wrenching for the cruelty from the boys in question. Just horrifying: It also appears this was not a one-incident either. There are at least two other such videos.

However, in response to this, someone set up an IndieGoGo campaign to raise money for Karen to go on vacation. And, wow, did the internet ever come through in a massive outpouring of altruism, donating hundreds of thousands of dollars in a day. As of this writing, it's already around half a million and there's still nearly a month to go. That's going to be quite a vacation.

Cue tons of great stories about how wonderful the internet can be.

But... then there's the flipside of it. The part where tons of people on the internet who find out about this story then barrage the school, the kids and anyone they think is related to this with nasty calls and emails including death threats:

The names of some of the alleged perpetrators — all juveniles who have yet to be charged with any crimes — and their parents and details about where they live ended up online. And since Wednesday, they’ve been barraged by death threats and harassing phone calls.

Greece police Capt. Steve Chatterton said Thursday that someone even made a false 911 call claiming there were people being held hostage inside one of the students’ homes. He said officers have been assigned to run special patrols down the youths’ streets to ensure their safety.

“We have a cellphone of one of the boys and he’s received more than 1,000 missed calls and more than 1,000 text messages threatening him,” he said. “Threats to overcome threats do no good.”

Karen herself has come out to say:

“This is going too far,” she said. “This is no better than the kids who did that on the bus.”

Exactly. If you're so upset by people acting totally obnoxiously to someone, there are a lot better ways to express yourself than to call them with a death threat.

Among our many commenters here, we have one "regular" critic who presents himself as being actively involved in "policy circles" in Washington DC, and who was clearly active in the SOPA/PIPA efforts in trying to write those bills and get them passed. This individual provided enough information (along with plenty of insults in our direction) in the comments to make it clear that they were heavily involved -- if at a low level -- in those efforts. As the debate over this bills wore on and people kept pointing out how encryption would make them all moot in the long run, the commenter declared a few times his (or her?) next target: outlawing encryption. This is, of course, laughable. But if someone who is actually connected to that world thinks that it's a viable idea, then you know that it's only a matter of time until someone actually makes a hamfisted attempt at doing something like trying to outlaw VPNs. That this would go against the very same governments' efforts on "internet freedom" is generally ignored. Cognitive dissonance is strong with this crowd.

That said, with countries like the UK proposing legislation to snoop on all communications -- including encrypted ones -- the folks over at TorrentFreak are right to be wondering how long it will be until someone tries to ban VPNs. Some more authoritarian countries have tried to effectively do so already (without much luck), but as our anonymous commenter suggested above, this idea is at least being considered by plenty of so-called democracies as well.

Thankfully, there would be plenty of powerful forces to fight back against any such attempt. Beyond regular internet users speaking out (ala the SOPA/ACTA protests), you'd also have plenty of companies who rely on encryption and VPNs for their efforts to keep people and data safe. Considering Congress is already suggesting that it should get involved in forcing companies to better protect data, it would be ironic (though, not surprising) to then find them also trying to outlaw encryption/VPNs, not realizing that the two things are diametrically opposed to one another.

In the end, I don't see how a war against encryption or VPNs could actually succeed, but it won't mean that efforts in that direction won't be a painful annoyance when they come around. Either way, people should at least be paying attention to these discussions, and trying to educate politicians that encryption and VPNs are necessary parts of a secure internet.

The entertainment industry just won't quit trying to kill perfectly legal technologies with substantial non-infringing uses. Back during the big legal fight over Grokster, the RIAA insisted that it had absolutely no interest in stopping technologies people used to record things. In fact, Consumer Electronics Association CEO Gary Shapiro reminded them of this promise after the RIAA went after XM Radio's device to record broadcasts. It appears that the RIAA has no problem continuing to go against its word. Its latest move is to send a letter to CNET, asking it to remove tools from Download.com that can be used to record videos from YouTube. Of course, there a tons of legitimate uses for such tools. Just as you can legally record shows off of TV (thank you Supreme Court), you should be able to record stuff on YouTube (related: shame on Google for blocking such tools as well).

Of course, from the parts of the RIAA's request that have been made public by Greg Sandoval at CNET, it sounds like the RIAA isn't directly making a legal threat (which would be tough, given CNET's role as a fourth party service provider for third party tools which might be used to infringe), but rather appealing to its parent company, CBS, arguing that because such tools and their substantial non-infringing uses might also be used to record CBS content (again, just like the VCR), that they should want to put an end to them.. Thankfully, it sounds like CNET has no interest in complying.

However, given the RIAA's promises during the Grokster case that it had no interest in blocking such technologies, it seems that, once again, the RIAA has been shown as liars who have no compunction about blocking perfectly legal technologies, just because they haven't figured out how to adapt to modern times.

I have to admit that I'm really confused about law professor and FTC advisor Tim Wu's general position on a variety of topics lately. In the past, I've often found him to be thoughtful and (very) insightful on various topics concerning internet policy and regulations. But, at times, he seems to go off the deep end, such as with his recent claims that big automatically means a monopoly. But, his latest piece in the NYTimes goes way further than anything I've seen before: claiming that search results shouldn't get First Amendment protection because it's "computers" speaking, not humans.

Is there a compelling argument that computerized decisions should be considered speech? As a matter of legal logic, there is some similarity among Google, Ann Landers, Socrates and other providers of answers. But if you look more closely, the comparison falters. Socrates was a man who died for his views; computer programs are utilitarian instruments meant to serve us. Protecting a computer’s “speech” is only indirectly related to the purposes of the First Amendment, which is intended to protect actual humans against the evil of state censorship. The First Amendment has wandered far from its purposes when it is recruited to protect commercial automatons from regulatory scrutiny.

This is wrong. And dangerous.

Let's be clear here: what search engines do is present opinions. They are opinions based on data programmed by humans. There is nothing special in that it's a computer that cranks through the data to output the opinion. Taken to its logical conclusion, Wu's argument is that we should protect uninformed opinions not based on an algorithmic exploration of the data -- but the second you add in a computer to crunch the numbers, that opinion is no longer protected. Contrary to Wu's assertion that this "wanders" from the point of the First Amendment, I'd argue the exact opposite. The First Amendment should protect all kinds of speech, but we should be especially happy about that which is based on data.

Two responses to Wu's piece help highlight this point nicely. Julian Sanchez notes that Wu's argument seems to suggest that any computer generated content doesn't get First Amendment protections -- and that would include computer-generated video games and movies:

Consider an argument for denying First Amendment protection to movies and video games. Human beings, we all agree, have constitutional rights—but mere machines do not. When the computer in your game console or DVD player “decides” to display certain images on a screen, therefore, this is not protected speech, but merely the output of a mechanical process that legislatures may regulate without any special restrictions. All those court rulings that have found these media to be protected forms of expression, therefore, are confused efforts to imbue computers with constitutional rights—surely foreshadowing the ominous rise of Skynet.

Probably nobody finds this argument very convincing, and it hardly takes a legal scholar to see what’s wrong with it: Computers don’t really autonomously “decide” anything: They execute algorithms that embody decisions made by their human programmers.

Similarly, Paul Levy takes Wu to task by comparing his argument to things like university rankings:

As the alumnus of a college that proudly rejects the proposition that the quality of educational institutions can be “measured by a series of data points,” I will take any opportunity to denigrate the Useless News and World Distort rankings of colleges, law schools and institutions of higher education.  But it would never have occurred to me to offer a “speech by computer” theory as a basis for denying that the ranking is speech or that it is protected opinion.  Maybe a stupid opinion, but that is not a basis for shutting the raters down, or enjoining them to change their rating criteria.  Indeed, this theory seems to me absurd — it is not the computers that have free speech rights, any more than printing presses have free speech rights.  It is the media companies that own the printing presses that have free speech rights, and by the same token it is the people and companies who program the computers and publish the results of their calculations that enjoy protection under the First Amendment.

Pretending that Google is a computer that magically generates answers, absent humans regular and consistent input into its algorithm, is a strange position to take, and it really does suggest that we should only protect opinions that don't include a component that uses a computer to analyze the data. I can't see how that's smart policy or anything close to what was intended in the concept of free speech.

Yikes. About a month ago, we wrote about some comments by Congressional staffer Stephanie Moore, the "Democrat's chief counsel on the House Judiciary Committee," in which she still couldn't come to grips with the fact that the public rose up against SOPA -- insisting that it must have been some nefarious "misinformation" campaign. We went through, in a fair amount of detail, how the misinformation was coming from her. It appears that Moore has decided to go even further down this path and express her general distaste for the public. During a panel discussion at the American Constitution Society's 2012 National Convention, covered by BNA, Moore was a panelist and apparently decided to totally mock the public and make the ridiculous claim that the failure to pass SOPA puts the internet at risk:

“Netizens poisoned the well, and as a result the reliability of the internet is at risk,” Moore said

Think about that for a second. That entire sentence is so incredibly insulting. Millions of people spoke out against bad legislation. The public spoke out, and Moore is so against the basic concept of democracy that she has to claim that millions of people expressing their political opinion is "poisoning the well." And how in the hell is "the reliability of the internet at risk" because Congress failed to pass a horrifically bad piece of legislation aimed at censoring sites one industry didn't like? Please.

The report goes on to a bunch of additional insulting comments from Moore towards the public, including the claim that "We don't know what the numbers mean," regarding the number of people who contacted Congress on January 18th. Here, I'll help you out: it means that a very large segment of the American population realized you were trying to push through a bad bill as a favor to some big Hollywood donors, and they didn't like it. What was so hard to understand about that?

On the same panel was lawyer Steve Metalitz, who represents a number of entertainment industry interests, and whom many people have suggested has had a major hand in the creation of SOPA/PIPA/ACTA and other such proposals. He also had some ridiculous things to say, including supporting the idea that DNS blocking was no problem. His reasoning? Lots of other countries censor the internet, why shouldn't the US? I'm not kidding:

“Most countries in the world already have this option at their disposal to deal with this problem,” Metalitz said during the ACS discussion. “If site blocking broke the internet, then the internet would already be broken.”

Metalitz is wrong. Either his misinformed or he's lying. Even SOPA supporters admitted that there are only thirteen countries that enable DNS blocking. That's not "most." Oh, and the thirteen? China, Iran, United Arab Emirates, Armenia, Ethiopia, Saudi Arabia, Yemen, Bahrain, Burma (Myanmar), Syria, Turkmenistan, Uzbekistan and Vietnam. This is not a list that we should want the US to be added to. And he's being disingenuous in saying that "the internet would already be broken." No one claimed that the internet as a whole would stop working if you put DNS blocking in place. But every single competent security technology expert pointed out that it would have significant negative impact on how important security systems would work. Hell, even Comcast (owner of NBC Universal -- the main corporate backer of SOPA) admitted that DNS blocking was incompatible with important DNS security technologies.

Who do we trust? A lawyer with zero computer security/networking knowledge, or pretty much every security expert around? Sorry, but I vote with the experts.

According to the report, Metalitz and Moore then teamed up to misrepresent the free speech concerns that people had about SOPA. They did so by insisting there were no such concerns and that the First Amendment and copyright law could not be in conflict:

Similarly, Metalitz said that the opposition's argument that “copyright means censorship is simply untrue.” He added, “I understand that in debates like this there is going to be over simplification, but this is a dangerous one for those that care about free expression.”

Moore agreed that the free speech concerns were misplaced. “The First Amendment argument is not appropriate in this context,” Moore said. “The First Amendment is part of copyright. They are not in tension.”

Thankfully, it sounds like there was strong pushback in the audience from folks like professor Lateef Mtima, but really, both Moore and Metalitz are once again being totally disingenuous. No one said that copyright itself means censorship. They said that overly broad copyright laws can and are used for censorship. This is not a hypothetical. We've already seen how Russia specifically used copyright law to stifle political speech from opponents. And right here in the US, we have the unfortunate story of the federal government censoring popular hip hop blogs for over a year by falsely accusing them of copyright infringement, shutting them down, and then denying them their day in court.

Frankly, both Moore and Metalitz owe those blog owners an apology. But, of course, no one involved in that situation has ever apologized. Much better to just flat out deny that copyright could ever be used for censorship. Here in the real world, that's called being in denial. You can't deny facts, but both Moore and Metalitz seem to have spent this entire panel doing exactly that.

Either way, given their roles in supporting SOPA and their refusal to understand the concerns against it, it seems likely that we haven't seen the last of horrible, dangerous legislation and international trade agreements from people like Moore and Metalitz.

Another day, and still, Charles Carreon keeps digging. In case you just woke up from a coma, here are all the earlier posts on Carreon. The latest is both a bizarre semi-backtrack, as well as another case of him feverishly continuing to dig that Carreon Effect hole deeper and deeper.

The "backtrack" comes to us via Popehat, pointing us to an interview with Carreon in which he admits that the letter he sent to kick off this whole mess... was a mistake. Yes. You read that right:

Ironically, the threat of the first lawsuit [Funnyjunk suing Inman] never materialized. Carreon admits he was misinformed: Before demanding the $20,000, which was based on FunnyJunk's "estimate of advertising losses sustained due to the taint of being accused of engaging in willful copyright infringement," Carreon was told that all Oatmeal comics had been taken off the FunnyJunk site, even though they hadn't. "If I had known... no demand would have gone out," he says.

You would think that, upon realizing this -- that the entire premise of his letter which kicked off this entire thing was wrong -- he would think better off pursuing a separate strategy in response to the backlash for what he now admits was in error. But, no. Also, as Ken at Popehat points out, saying these things could be construed as "revealing a confidential attorney-client communication between himself and FunnyJunk in order to make himself look less ridiculous."

And then he continues to dig, dig, dig, dig dig.

You see, in another interview (dude gets around), this time with Ars Technica, Carreon trots out his latest bizarre theory of liability for Matthew Inman. In the lawsuit, he claimed that he thought Inman might keep everything raised above the target goal of $20,000, even though Inman never made any suggestion that was true, and in fact, Inman had said quite clearly (way before Carreon's rampage and lawsuit) that he was going to donate 100% of everything raised to charity. But Carreon says it doesn't matter:

“It sounds like he stands to make $180,000,” Carreon said. “He’s the authorized agent of IndieGoGo. I know this shit is hard to put together. That’s why we hire lawyers, because we read the statute and we take the risk.” (“Inman's commitment after the fact is not evidence of his original intention," Carreon clarified later by e-mail).

It should be noted, of course, that it does not appear that Carreon has "hired a lawyer" since he filed the case pro se (representing himself). The whole "authorized agent of IndieGogo" thing seems to be an astoundingly weak attempt to twist what IndieGoGo does and what Inman did to fit it under the California law on commercial fundraisers.

But, here's where Carreon goes really far out on a limb. On the very same post where Inman tells everyone that 100% of the money is going to charity, he also points out that he is going to add some other charities to the list. Nearly everyone thinks this is a really good thing. More money going to more charities. Awesome. But, no, not to Carreon. Apparently this is evidence of a nasty "bait & switch"

“Inman's idea to add two more charities is another act that shows the risk of money being raised for one purpose to be diverted to another. For example, I raise money for an Israeli charity to pay for trips to the Holy Land, but then decide that half the money should go to Palestinian orphans, or more disturbingly, to Hezbollah, which also has a charity wing. It's one more reason why IndieGoGo should not contract with agents like Inman who do not know that ‘adding charities’ to a campaign is obviously ‘bait and switch’ false advertising.”

Yeah, because everyone is just so sure that Inman's now going to add two charities that involve speeding up cancer causing agents and killing off bears to counter his original two charities.

We've been following a series of cases over the past few years concerning the FCC's attempt to fine TV stations for "indecency." These cases include "fleeting expletives" like Bono cursing during an awards show ("this is fucking brilliant") to fleeting nudity like the Janet Jackson wardrobe malfunction... and, the case that just got decided: NYPD Blue's episode where actress Charlotte Ross is shown getting ready for a shower, dropping her robe and having her bare buttocks on screen for approximately seven seconds. As we noted, when the FCC originally went after ABC for this footage, it helped drive millions of people to go seek out the footage online, getting her butt a lot more attention than if they'd just let it go. Either way the case has meandered through the courts, with an early decision saying the policy was a First Amendment problem and a later ruling striking down the fine.

Some of the cases involving both fleeting expletives and fleeting nudity got merged into one along the way. The Supreme Court actually already had this case a few years ago and rejected one of the lower court decisions that found the policy "arbitrary and capricious," but failed to rule on whether the fine was legal. The appeals court, on remand, still tossed out the ruling, now saying that if the policy wasn't arbitrary and capricious, it was too vague.

The Supreme Court has now agreed (pdf), and rejected the FCC's fine.

The Commission failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent. Therefore, the Commission’s standards as applied to these broadcasts were vague, and the Commission’s orders must be set aside.

That said, the Court (as it has been doing with annoying regularity these days) was very, very careful to try to make the scope of the ruling as narrow as possible. In this case, it specifically refused to rule on the First Amendment question of whether or not the FCC's indecency policy violated the First Amendment. That's too bad. Justice Ginsburg did issue a very, very brief concurrence, in which she suggested that the Court really ought to review its original ruling (FCC v. Pacifica) which established that the FCC could issue fines for indecency on TV. In other words, she seems to think that it's time to review the First Amendment question:

In my view, the Court’s decision in FCC v. Pacifica Foundation, 438 U. S. 726 (1978), was wrong when it issued. Time, technological advances, and the Commission's untenable rulings in the cases now before the Court show why Pacifica bears reconsideration.

Furthermore, even in the majority opinion, there are hints of concern about the First Amendment issues raised here:

This would be true with respect to a regulatory change this abrupt onany subject, but it is surely the case when applied to theregulations in question, regulations that touch upon “sensitive areas of basic First Amendment freedoms,” Baggett v. Bullitt, 377 U. S. 360, 372 (1964); see also Reno v. American Civil Liberties Union, 521 U. S. 844, 870–871 (1997) (“The vagueness of [a content-based regulation of speech] raises special First Amendment concerns because of its obvious chilling effect”).

Hopefully, this means that if the First Amendment question does finally come before the court, it's ready to overturn that earlier ruling. Of course, I'm still amazed at how this very same Supreme Court always seems to ignore the "obvious chilling effect" issue when it comes to cases involving copyright law... but that's another story for another post.

Clarification: As some people have pointed out, Apple themselves have not revealed this—the information comes from TechCrunch's conversations with accessory manufacturers. The headline was misleading and has been updated.

As iPhones and iPads have gotten more powerful, they've been adopted for a lot of professional applications, and this has spawned a huge industry of compatible devices—not just accessories, but significant expansions that can run into the same price range as the iPhone/iPad itself. In music, for example, there are DJ controllers, audio interfaces, studio microphones, stompbox pedals and more—all utilizing the ubiquitous iPod/iPhone/iPad connector port that has remained the same for years. But now TechCrunch has confirmed that the new iPhone will feature a new mini connector with a yet-to-be-announced standard—which means the rest of the Apple line is sure to follow, and all those products are officially on the road to obsolescence.

Apple’s 30-pin ports have been the standard since Apple released the third generation iPod. The connectors offered structural stability when connecting to most accessories but it’s clear – especially with the introduction of the MagSafe 2 port – Apple is more concerned with space savings inside each device.

Three independent manufacturers all agreed that the 19-pin dock port is in the works and many accessory manufacturers are facing an uneasy few months as they wait for official news of the standard to be announced.

This is going to frustrate a lot of users—but despite TechCrunch's suggestion, most manufacturers probably aren't "uneasy". For them, it's a great cash-grab, and an apparently pointless one. Sometimes things have to become obsolete—but this doesn't seem like one of those cases. There were no problems with the old connectors, and they weren't causing any kind of technological bottleneck, so apart from the space-saving aspect, there doesn't seem to be much to gain—certainly not for the user, and certainly not compared to what's lost by abandoning such a well-established standard. This has led some to suggest that the accessory manufacturers were in fact the driving force behind the change:

Have you guys ever heard of 'planned obsolescence?' It's a practice which encourages planning and designing a product so it's only useful for a limited time, before becoming obsolete. It's common practice, and used by many companies to create demand for the 'newer, better' model of the product. Yet this move is possibly prompted by the major accessory makers facing dwindling sales, as customers see no need to buy new accessories for a smartphone that had a universal dock system for 6 generations. What most tech blogs failed to address was the following question: Did the top accessory makers pad Apple's pockets, or hardball negotiate for an incentive to drop the standard cable as a means of forcing consumers to buy new accessories? We're inclined to think so.

Considering that three of the top accessory makers have been the first to confirm that they're working on 19 pin accessories already for the launch of the iPhone 5, the motive is simple : Greed. And why not? It's a fail safe business plan, designed to shake out the smaller accessory makers with tons of unsold '30 pin' stock and a good amount of people will probably conform to this odd decision without question.

Of course, Apple gets plenty of benefits too. The new connector will be yet another proprietary standard, following their typical walled-garden approach, which means most accessory developers will build Apple-first, everything-else-second-if-at-all, thus pushing more people towards Apple products. It's not surprising, but it's not a consumer-friendly decision either. Additionally, manufacturers/owners of some of the aforementioned professional accessories to do with music and photography get the worst deal—for them, iPhone/iPad compatibility is a great feature, but not central to their businesses/buying habits. Breaking the compatibility is a source of nothing but frustration, and will probably discourage a lot of such users from upgrading at all—while the manufacturers are slowly forced to leave them behind.