As various collection societies have been getting more desperate to collect more and more fees, a favorite move is to focus in on sky high internet "streaming" rates. In the US, webcasting rates are many, many times higher than the royalties that radio has to pay. It's why there still remain many questions about whether or not webcasting is a viable business, even for giants like Pandora. It's particularly ridiculous when it comes to radio stations who choose to "simulcast" their stations online. Thankfully, down in Australia, there was a ruling that made some sense, saying that radio stations shouldn't have to pay much higher internet rates just to rebroadcast their radio stream online. But what's really telling is the response from the local collection society, PPCA, who wanted to collect all that money:

"We are disappointed by this ruling on a technical point relating to internet streaming but will continue to work hard for a better deal for artists and labels," comments PPCA CEO Dan Rosen.

"Australia remains out of step with other jurisdictions such as the U.K., Canada and New Zealand where radio operators pay significantly higher license fees."

Perhaps the question should be whether or not it's right that those other jurisdictions make radio stations pay so much more for promoting artists? Given the history of payola, where the record labels have shown -- empirically -- that they get tremendous value out of having their artists played on the air and are willing to pay for it... it seems pretty silly to then demand that the radio stations turn around and pay "higher fees" back.

If you believe in gender stereotypes, then you probably think that men are better drivers than women. However, auto insurance companies are inclined to believe that women are actually safer drivers. It's a hotly debated topic, but it's safe to say that there are lots of bad drivers -- both men and women -- on the road. That's why we need robot cars. Here are a few links to some driving-related studies.

• A New York City traffic study found that male drivers were responsible for 80% of car accidents in which pedestrians were severely injured or killed. Blame it on testosterone, which increases aggression and risk-taking. [url]
• A University of Michigan analysis of 6.5 million car accidents in the U.S. between 1998-2007 found that female drivers were responsible for 68.1% of all crashes. Apparently, women have trouble navigating intersections, as they were most often hit on the driver's or passenger side while trying to turn left or right. [url]
• A more recent UK study showed that women are actually better at parking than men, dispelling the myth that men have better spatial awareness than women. According to the professional driving instructor who created the study, men learn and perform better during driving lessons, but it's possible that women retain what they learn better than men. [url]
• Let the car park itself. Many automakers, including Ford, Toyota, and BMW, are offering self-parking systems in their vehicles now. While they can guide cars into parking spaces with minimal driver involvement, they aren't always reliable. [url]
• To discover more interesting car-related content, check out what's driving around StumbleUpon. [url]  

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

This is no surprise, given the charges outlined earlier, but Bradley Manning was formally charged with 22 counts for allegedly leaking State Department cables and other documents to Wikileaks. While many expected him to enter a plea, instead he chose to defer the plea for the time being. Perhaps he's working on some sort of plea bargain. The key charge, of course, is "aiding the enemy" though I'm curious which "enemy" we're talking about and exactly what "aid" they got from this. To date, it seems like the leaks may have embarrassed the US, but it's not clear they did any more significant harm than that. If that's all it takes to "aid the enemy," then something's wrong with the system...

It was only yesterday that the European Commissioner Karel de Gucht made the surprise announcement that the European Commission would be referring ACTA to the European Court of Justice (ECJ) "to assess whether ACTA is incompatible -- in any way -- with the EU's fundamental rights and freedoms." Just a few hours after that, there are already signs of panic among ACTA's supporters that the treaty may indeed be incompatible -- and thus dead in the water as far as the European Union is concerned.

Here, for example, is a press release from the International Trademark Association (INTA), in which it makes an extraordinary offer:

the International Trademark Association (INTA) stands ready to provide any assistance to the Court or other interested parties in order to highlight the positive effects the trade agreement will have on the EU, its economy and its citizens.

The referral provides an opportunity for interested parties to continue the discussions based on ACTA's text itself, and not the heightened sense of mistrust and misinformation that has proliferated in online conversations.

This is wrong on just about every count. For a start, there have still been no "discussions" about ACTA, despite the fact that public interest groups have been requesting them for years. And is it any wonder if there is a "heightened sense of mistrust" in online conversations if the governments negotiating ACTA have consistently refused to make key information available to the public?

But most of all it's wrong because the referral to the ECJ is emphatically not an opportunity to have a general chat about ACTA: it's for the EU's most senior judges to consider in detail whether the treaty as negotiated is compatible with Europe's existing laws -- not something a trademark association can contribute much to.

In particular, those judges will be looking at possible incompatibilities with the EU's "fundamental rights and freedoms." But that, of course, is the last thing INTA wants the judges to think about:

INTA hopes that the European Court of Justice will make a considered and quick assessment of ACTA, acknowledge the serious threats that counterfeiting and piracy pose for the EU and provide the necessary clarity to pave the way for consent to the Treaty by the European Parliament and ratification by Member States.

Counterfeiting and piracy are on the rise and constitute serious threats to consumers, legitimate businesses and innovators. ACTA is instrumental for tackling these issues

How the judges are supposed to make an assessment that is both "considered" and "quick" is something the press release doesn't make clear. But leaving that aside, together with the fact that the referral is purely about rights and freedoms, not commercial considerations, this does highlight an important, if obvious, point: that the principal justification for ACTA remains that it will tackle counterfeiting effectively. But will it?

The European Commission has put together a document explaining the rationale for ACTA that contains the following claim:

As Europe is losing billions of Euros annually through counterfeit goods flooding our markets, protecting Intellectual Property Rights [with ACTA] means protecting jobs in the EU.

But as I have explored elsewhere at some length, that makes no sense. According to the EU's own figures, 99% of those counterfeit goods entering Europe come from countries that are not signatory to ACTA. The treaty will therefore have no effect on those counterfeits in their countries of manufacture. And once they get to the EU, fake goods can be dealt with using existing EU laws. ACTA will make no difference because, as we have been told repeatedly by the Commission, the treaty changes nothing in Europe. Thus, ACTA will not help tackle that flood of counterfeits inside the EU, nor will it protect jobs there.

Interestingly, when he announced the referral of the treaty to the ECJ, de Gucht used a slightly different argument about fake goods to justify the ratification of ACTA:

Intellectual property is Europe’s main raw material, but the problem is that we currently struggle to protect it outside the European Union. This hurts our companies, destroys jobs and harms our economies. This is where ACTA will change something for all of us - as it will help protect jobs that are currently lost because counterfeited and pirated goods worth 200 billion Euros are floating around on the world markets.

But once more, what this skates over is the fact that ACTA will only have any impact on the countries that have signed it -- others, like China, will be able to carry on as before. So ACTA will only affect a portion of the "counterfeited and pirated goods ... floating around on the world market" -- those that are being offered in ACTA countries.

The main signatories outside the EU are Australia, Canada, Japan, New Zealand, South Korea, Switzerland and the US, all of which already have relatively stringent laws against counterfeit goods. So that means that the only places where ACTA might have some effect are Mexico and Morocco, which may be obliged to tighten up their anti-counterfeiting laws. But that on its own will achieve little: as with the counterfeits "flooding" Europe, ACTA will have almost no effect on those "floating around on the world markets."

So not only is INTA misguided in trying to divert the conversation away from the key issue of the EU's fundamental rights and freedoms, its principal argument in favor of ACTA -- that it will tackle counterfeiting in Europe -- just doesn't hold up. Which leaves us with INTA's parting shot:

it is imperative that the EU continues to protect its citizens and uphold its status as a responsible trading partner by joining the other negotiating parties in the international effort to fight counterfeiting and piracy.

In other words, if you decide not to ratify ACTA because it undermines civil liberties and doesn't tackle counterfeiting, we'll call you "irresponsible" and other rude names.

Yeah, that'll work...

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Partly in response to Rupert Murdoch whining about how it's too risky to make films if Congress doesn't set up protectionist plans that lock down the internet, venture capitalist Fred Wilson has a great post about how "scarcity is a shitty busines model." He focuses, mainly, on the windowing aspect of movie releases these days, and how many in the industry still insist that locking up content rather than making it widely available is the key to profiting. But Fred points out (as many people have for years), that this makes no sense:

Denying customers the films they want, on the devices they want to watch them, when they want to watch them is not a great business model. It leads to piracy, as we have discussed here many times, but more importantly it also leads to the loss of a transaction to a competing form of entertainment.

[....]

I've argued this point many times with film executives. They insist that they need their windows. They argue they need to manage access to their films to extract every last dollar from the market. That just doesn't make sense to me. If they went direct to their customers, offered their films at a reasonable price (say $5/view net to them), and if they made their films available day one everywhere in the world, I can't see how they wouldn't make more money.

He points out that this certainly will disrupt some players -- but for the studios, it will undoubtedly increase the pie. It may hurt the gatekeepers, but it helps pretty much everyone else.

The one quibble I'd have with Fred's post is he keeps saying that scarcity is a bad business model. I think he's overstating his case a bit. Scarcity remains, and scarcity is still a key part of a smart business model these days. What is a bad business model is relying on artificial scarcities -- scarcities that are created by choice and by fiction -- rather than market realities. A seat in a movie theater is a real scarcity. Fred's attention is a real scarcity. Those are important parts of a real business model. Pretending an infinitely copyable video is not... is an artificial scarcity and it's a bad business model.

US Transportation Secretary Ray LaHood has been on this campaign to somehow "wipe out" distracted driving for a while. A couple of years ago, we wrote about his desire to figure out ways to disable mobile phones from working while the car is in motion. After there was a lot of controversy around that, LaHood tried to claim he never really said what he said. However, he's continued to repeat those kinds of claims again and again -- and with the new "guidelines" for automakers being published, we see, once again, his plan to push for technology to force other technologies not to work while a car is moving. According to the Washington Post article linked above:

Drivers won’t be able to text, browse, tweet or dial on factory-installed devices if auto manufacturers follow new federal guidelines to disable the gadgets while the wheels are rolling.

In announcing the latest step in his campaign against distracted driving Thursday, U.S. Transportation Secretary Ray LaHood said the government might next extend the guidelines to cover virtually every portable electronic device that could find its way into a vehicle.

“These guidelines are a major step forward in identifying real solutions to tackle the issue of distracted driving for drivers of all ages,” said LaHood, who has made distracted driving the marquee issue of his tenure as secretary.

No one denies that distracted driving can be incredibly dangerous and a serious problem. It's just that many of us question this as a solution. In fact, it seems likely to make the problem worse, not better. First of all, rules that require automakers to disable features while a car is moving completely ignore the fact that not everyone drives alone. Many people have passengers, and it can be quite useful to have a passenger make use of the technology to set the GPS, answer a phone call or whatever else needs to be done. Locking that up for passengers servers no purpose.

But the bigger issue is how this won't solve the problem and likely will make things worse. The specific guidelines here will focus on issues where the automaker has some control and can disable features while the car is moving -- so that would be console based info, or situations where a phone is connected to the car's information systems via Bluetooth or some other technique. But, really, all that's likely to do is to cause people to route around the block making things more dangerous. We've already seen this. Laws against texting-while-driving seemed like a good idea, but the real impact appears to have made the roads more dangerous. That's because people didn't stop texting-while-driving, they just started being more careful to hide the activity, by placing the phone lower down, such as in their laps, rather than up on the dashboard or above the steering wheel. Now, neither situation is good -- but at least if the device is up, the driver can pay some more attention to the road, rather than taking their eyes completely off the road.

The nice thing about an integrated information system in a car is that it can be designed to try to minimize such issues and risks, creating compelling ways to get stuff done, while allowing drivers to keep their attention on the road. Doing an outright ban simply pushes people to route around that integrated system, and likely will have them be even more distracted as they try to hide the activity. The simple fact is that you can't ban stupidity. We all agree that distracted driving is a problem and is dangerous -- but these guidelines will likely make the problem worse, not better.

The White House is making a big deal over its introduction of a Consumer Privacy Bill of Rights concerning corporation's use of personal data. Unlike Europe, where there are a bunch of privacy protection laws, the US has gotten by without such laws for the most part. I can certainly understand the desire for a bill of rights like this -- and like many, I'm creeped out about how some sites make use of my data (especially in that uncanny valley of targeted advertising) -- but I'm not so creeped out that I think a law is the answer. In fact, a few things about this plan leave me concerned.

Privacy rights is one of those things that seems like a good idea, but seems very difficult to actually implement effectively, without either stifling useful services that really aren't creepy or troublesome, or just creating a set of plans so meaningless as to be a waste of time. For example, we've long argued that privacy policies are pointless, but these days for many sites, it's required that you have one. This is one of those ideas that sounds good: of course a site should have a privacy policy! Except... no one reads these privacy policies, and most people (incorrectly) assume that if a site has a privacy policy, it means their information is private. But that's not necessarily the case. You could have a "privacy policy" that says "we widely share all your info and we mock you at the same time!" and as long as the company does just that, it's likely still a legit privacy policy.

And that leads to screwed up incentives. Basically, sites have the incentive to be broad, vague and not very thorough in their privacy policies, to avoid running afoul of their own rules (which is where they start getting into trouble with the FTC). If you create a really locked down privacy policy, it just means there are more opportunities for you to break those rules and face an issue with the FTC. Thus, to protect yourself, you write a very vague and broad privacy policy just to avoid having to worry about tripping over it.

My fear is that we end up with the same screwed up incentives, but on a wider scale, with this "bill of rights." Here's what the White House is suggesting:

1. Individual Control: Consumers have a right to exercise control over what personal data companies collect from them and how they use it. Companies should provide consumers appropriate control over the personal data that consumers share with others and over how companies collect, use, or disclose personal data. Companies should enable these choices by providing consumers with easily used and accessible mechanisms that reflect the scale, scope, and sensitivity of the personal data that they collect, use, or disclose, as well as the sensitivity of the uses they make of personal data. Companies should offer consumers clear and simple choices, presented at times and in ways that enable consumers to make meaningful decisions about personal data collection, use, and disclosure. Companies should offer consumers means to withdraw or limit consent that are as accessible and easily used as the methods for granting consent in the first place.
2. Transparency: Consumers have a right to easily understandable and accessible information about privacy and security practices. At times and in places that are most useful to enabling consumers to gain a meaningful understanding of privacy risks and the ability to exercise Individual Control, companies should provide clear descriptions of what personal data they collect, why they need the data, how they will use it, when they will delete the data or de-identify it from consumers, and whether and for what purposes they may share personal data with third parties.
3. Respect for Context: Consumers have a right to expect that companies will collect, use, and disclose personal data in ways that are consistent with the context in which consumers provide the data. Companies should limit their use and disclosure of personal data to those purposes that are consistent with both the relationship that they have with consumers and the context in which consumers originally disclosed the data, unless required by law to do otherwise. If companies will use or disclose personal data for other purposes, they should provide heightened Transparency and Individual Control by disclosing these other purposes in a manner that is prominent and easily actionable by consumers at the time of data collection. If, subsequent to collection, companies decide to use or disclose personal data for purposes that are inconsistent with the context in which the data was disclosed, they must provide heightened measures of Transparency and Individual Choice. Finally, the age and familiarity with technology of consumers who engage with a company are important elements of context. Companies should fulfill the obligations under this principle in ways that are appropriate for the age and sophistication of consumers. In particular, the principles in the Consumer Privacy Bill of Rights may require greater protections for personal data obtained from children and teenagers than for adults.
4. Security: Consumers have a right to secure and responsible handling of personal data. Companies should assess the privacy and security risks associated with their personal data practices and maintain reasonable safeguards to control risks such as loss; unauthorized access, use, destruction, or modification; and improper disclosure.
5. Access and Accuracy: Consumers have a right to access and correct personal data in usable formats, in a manner that is appropriate to the sensitivity of the data and the risk of adverse consequences to consumers if the data is inaccurate. Companies should use reasonable measures to ensure they maintain accurate personal data. Companies also should provide consumers with reasonable access to personal data that they collect or maintain about them, as well as the appropriate means and opportunity to correct inaccurate data or request its deletion or use limitation. Companies that handle personal data should construe this principle in a manner consistent with freedom of expression and freedom of the press. In determining what measures they may use to maintain accuracy and to provide access, correction, deletion, or suppression capabilities to consumers, companies may also consider the scale, scope, and sensitivity of the personal data that they collect or maintain and the likelihood that its use may expose consumers to financial, physical, or other material harm.
6. Focused Collection: Consumers have a right to reasonable limits on the personal data that companies collect and retain. Companies should collect only as much personal data as they need to accomplish purposes specified under the Respect for Context principle. Companies should securely dispose of or de-identify personal data once they no longer need it, unless they are under a legal obligation to do otherwise.
7. Accountability: Consumers have a right to have personal data handled by companies with appropriate measures in place to assure they adhere to the Consumer Privacy Bill of Rights. Companies should be accountable to enforcement authorities and consumers for adhering to these principles. Companies also should hold employees responsible for adhering to these principles. To achieve this end, companies should train their employees as appropriate to handle personal data consistently with these principles and regularly evaluate their performance in this regard. Where appropriate, companies should conduct full audits. Companies that disclose personal data to third parties should at a minimum ensure that the recipients are under enforceable contractual obligations to adhere to these principles, unless they are required by law to do otherwise.

Now, I see a list like this, and, as a consumer, there are parts of it to which I instinctively say, "yeah, right on!" But, from the point of view of someone who runs a popular website, I look down that list and see possible pitfalls. There are a few areas where I could be afraid of accidentally violating such a "Bill of Rights," without meaning to and certainly without intending harm. That's what happens when you have vague laws. This isn't to say there should be a free for all, but I do worry that making this "Bill of Rights" a reality may chill certain innovative businesses, while also causing some disruptions for small ongoing businesses. This doesn't mean the issue shouldn't be tackled, but as with SOPA/PIPA, I'd rather there be a much clearer statement not just on the problem or the fix being worked on -- but on the wider implications of it.

And, if we're talking about "privacy rights," shouldn't the focus really be on the government? After all, in the real Bill of Rights we already have a 4th Amendment that is a form of privacy protection... and which the federal government keeps trying to chip away at. It seems kind of ironic that the same government that is talking about how we need a privacy "bill of rights" for consumers against companies, is actively trying to take away those same kinds of privacy rights when the government is involved...

Not this again. Ever since SOPA/PIPA were shelved, we've been hearing from MPAA and RIAA officials about how important it is that they "sit down and meet" with "the opposition." Part of the problem is that they still can't figure out who the opposition really was. They usually blame Google. And sometimes Wikipedia. We keep hearing these requests to work together, but when people take them up on the offer and agree to meet... they seem to chicken out. Another big part of the problem is assuming that the only answer to the challenges they're facing is more legislation... but that's clearly not true.

Either way, a news report making the rounds says that Chris Dodd has "extended an olive branch" to the tech community with a speech he just gave. Already, that's framing this discussion incorrectly. Folks in Silicon Valley have been plenty happy to meet for many, many months. No "olive branch" needed. The MPAA and RIAA done everything to keep the tech industry from the table for nearly all of the SOPA debate. Even after everything happened, folks in Silicon Valley have made it clear that they're happy to meet and discuss stuff with Hollywood. It's just that many of them would like it to be "open." I've heard from a few different folks where "feelers were put out" to see if they wanted to take part in some secretive backroom "negotiations" -- but when they requested more open proceedings, the MPAA/RIAA guys insisted that was a deal breaker.

But really, what you see in this report isn't an olive branch, it's a baseball bat, where Chris Dodd talks up all the opportunities there are, and then starts wacking away at evil pirates destroying all.

MPAA Chief Chris Dodd made a peace overture to Silicon Valley Wednesday, telling an audience that "Hollywood is pro-technology and pro-Internet."

But he also made clear the legislative battle against piracy wasn't over, maintaining that "a strong system of copyright protection for online content is critical to the continued success of the flourishing Internet marketplace."

Except, that's not clear at all. A strong system of content protection has had nothing to do with the current success of the "flourishing internet marketplace." And putting even more protectionism in place only seems likely to make things worse, and drive more people underground. To say that it's critical to the success of the internet seems really preposterous considering how little evidence there is that copyright really plays a major issue here.

The real problem here is that Dodd still continues to refuse to define the problem correctly. He still assumes (or publicly proclaims) that the answer is content protection. A truly open conversation wouldn't start with such assumptions, but would do more to establish a framework and details. And then you get things like this:

Speaking to the Atlanta Press Club on Wednesday, Dodd said that "nearly one-quarter of all global Internet traffic is copyright theft. And at the heart of the problem is the proliferation of parasitic foreign rogue sites whose sole purpose is to facilitate, and profit from, the theft of international property."

Of course, as has also been pointed out, this "one-quarter of all global Internet traffic" bit is misleading, because it's counting all sorts of things that might not be infringing. But, more to the point, Netflix alone appears to use up about approximately the same amount of bandwidth. And what that suggests is that the problem isn't that big. If you converted everyone who he's talking about to Netflix... you'd just have another Netflix. That's a decent-sized company, but nothing miraculous. It just looks big because everyone's focused on the wrong numbers -- such as the byte size of traffic, rather than what's actually being shared and why.

"We cannot draw up a business model that accounts for the wholesale theft of our product," he said. "It's true for pharmacies. It's true for the automobile industry. It's true for software developers. And it's true for us."

Of course, once again, he's misusing the term "theft," which is pretty disappointing and again suggests the lack of a real "olive branch" here. But, furthermore, this statement is also plainly wrong. What he's arguing is that companies can't compete with free. But, er... plenty of "copyright" businesses do exactly that. One need look no further than the open source community. There, Dodd would discover that there have been some very large companies that built on top of products that the company can't lock down, and that versions of those products will be available for free. And many open source companies have done well -- even as they have to compete with free versions of identical products. They've built great business models. To say that Dodd himself (or the studios) "cannot draw up a business model" that deals with the market situation is a statement on Dodd and the industry -- not on the possibility of such business models. Of course, there are more and more people discovering business models that work... but rather than let that happen, Dodd is demanding a law?

And, really, it comes back to this again: this isn't an olive branch. Dodd isn't seeking input from those who understand these issues. He's pretending to offer an olive branch to get some "negotiations" started, where they won't listen or take the time to understand the real issue. Instead, they'll just beat everyone over the head with the branch and insist that their ridiculously bad plans to expand copyright enforcement are the only way to go.

He said that "copyright legislation helped to create the Internet of today -- not to mention providing companies like Apple with the incentive to -- as they say -- think different, and to think big."

This part is just intellectually dishonest. Very little of the success of the internet today had anything to do with copyright law. In fact, large parts of the success of the internet were due to exceptions to copyright law, such as those from the open source community.

"The coalition supporting a crackdown on ... criminal sites includes companies large and small who produce movies, TV shows, music, software, photography, prescription drugs, consumer electronics -- everyone from Gibson Guitars to the Ultimate Fighting Championship."

Um, sounds like Dodd's talking points need a refresh. Gibson Guitar dropped its support of SOPA...

"If you believe that freedom of speech does not imply, and the ability to innovate does not require, a license to steal, if you believe that the men and women who work hard to make films and TV shows deserve to be fairly compensated ... I invite you to join this coalition and help us move towards a solution to this problem."

See, that's not an olive branch at all. That's just flat out misrepresenting the position of those who opposed SOPA. No one says that there's a "license to steal" or that people should be allowed to break the law willy nilly. Nor is anyone saying that those who "work hard" shouldn't be compensated. There are tons of laws on the books already -- many of which are already being overaggressively enforced. We're saying that there are existing ways to deal with these issues that don't have the collateral damage that a SOPA or PIPA would have -- by not involving legislation at all, but letting the market figure things out, as it's already been doing.

Again, if Dodd wants to meet and put forth a real olive branch, he should try not attacking those he's supposedly reaching out to or misrepresenting their position. Otherwise it's tough to see much sincerity there...

There's proposed legislation in the US (sponsored by Lamar Smith) and in Canada (sponsored by Vic Toews) and in the UK that uses various flimsy justifications for the mass collection of data on telecommunications users. The data covered by these proposals varies, but includes things like URLs, phone calls, text/instant/email messages, and other forms of communication. Some of this proposed legislation deals with communication metadata, e.g., sender, recipient, time, etc.; some of it deals with communication content, e.g., the full text of messages.

I'm going to gloss over the specifics for two reasons: first, they've been covered exhaustively elsewhere, and second, I think it's an absolute certainty that whatever these proposals contain, the next ones will contain more.

The putative reasons given for these proposals are the usual Four Horseman of the Infocalypse: terrorists, pedophiles, drug dealers, and money launderers. One would think, given the hysteria being whipped up by the proponents of these bills, that one could hardly walk down the street without being offered raw heroin by a grenade-throwing child pornographer carrying currency from 19 different countries.

Of course, everyone who's actually studied terrorists, pedophiles, drug dealers and money launderers in the context of telecommunications knows full well that nothing in these bills will actually help deal with them. The very bad people who are seriously into these pursuits are not stupid, and they're not naive: they use firewalls, encryption, and tunneling. They use strong operating systems and robust application software. They use rigorous procedures guided by a strong sense of self-preservation and appropriate paranoia. They're not very likely to be caught by any of the measures in these bills because they'll (a) read the text and (b) evade the enumerated measures.

Yes, there are occasional exceptions: every now and then, a clueless newbie or a careless dilettante turns up when they're caught. And of course when that happens, there's always a press conference announcing the event, and many claims that it's a "major blow against crime" and a flood of self-congratulatory press releases. But it doesn't mean anything, except that someone was either stupid...or careless...or was set up.

The unpleasant reality that these bills are trying to avoid is that catching very bad people requires diligence, patience, expertise and intelligence, aka "competent police work." There's no substitute and there are no shortcuts. This means that these bills will achieve very few of their stated goals; that is, the benefit to society from them will be minimal, if any.

But what about the cost?

I don't mean the financial cost, although that will be high -- much higher than those proposing such legislation are prepared to admit; I mean the cost to society as a whole.

If such legislation passes, then everyone will know that every ISP is building a database -- a highly useful database for very bad people. It's the sort of thing that some very bad people have been trying to construct for years, often at considerable expense and effort. How very nice of someone else to build it for them, saving them the cost and trouble -- because they, and/or their agents, will of course target it for acquisition. And given the parade of security breaches and dataloss incidents we see on a daily basis, it's certain they'll get it. (My bet is that they'll get it before it's even finished. Any takers?)

There's an old military saying -- a bit of inter-service trash talk: "The Air Force builds weapons; the Navy builds targets".

Politicians who propose such measures appear to be thinking that they're building a weapon -- a weapon that law enforcement agencies can use to pursue people who've committed, or are suspected of committing, crimes. But they're not. They're building a target. They're building the mother lode for stalkers, pedophiles, spammers, identity thieves, child pornographers, blackmailers, extortionists, and yes -- terrorists. A Techdirt story just a few days ago gave some rather creepy examples of what Target's data mining can do...and they're just trying to sell you stuff. Imagine what very bad people are capable of, given far richer data and the rather obvious inclination to break the law at will.

What's worse than building a target? Telling everyone you're building a target. What's worse than telling everyone you're building a target? Telling everyone where it is. What's worse than telling everyone where it is? Telling them what's in it. Yet that's exactly what these bills would do: force the construction of a target, inform everyone that it exists, where it is, and what's in it.

I'm sure that the very bad people these bills allegedly target are delighted. I'll bet they're having a hard time not expressing their enthusiastic support. But my guess is that most of them will heed Napoleon's sage advice: "Never interrupt your enemy when he is making a mistake."

I'm not the only one who's observed that these databases are targets, not weapons. So has Ontario Information and Privacy Commissioner Ann Cavoukian:

"This is going to be like the Fort Knox of information that the hackers and the real bad guys will want to go after. This is going to be a gold mine. [...] The government will say that they can protect the data, and they can encrypt it. Are you kidding me? The bad guys are always one step ahead."

But this is not the worst of it -- that is, the certainty that very bad people will find ways to acquire these databases and to correlate them with each other and with still more databases isn't the endgame.

Particularly talented intruders will not only get it, they'll monitor it in real time. How do you feel about someone knowing where you bank, that you've made three phone calls to stores today, and that you have a Visa card with the following number that you just used from a hotel room 300 miles from home? How do you feel about the web browsing of your teenage daughter being observed by someone who's also reading her instant messages and listening to her VOIP calls, and has the IP address she's using in her college dorm room?

And even this is STILL not the worst of it. Given the rampant Internet and computer illiteracy that we see every day out of law enforcement, private investigators, journalists, and others around the world -- such as the clueless people behind these bills -- it's only going to be a short time until "the logs say X" becomes semantically equivalent in the vernacular to "X is true". And it is at that point that some of the more talented very bad people won't just acquire this data: they'll modify it.

Last month, we noted the odd propaganda film from ICE director John Morton, in which he seemed to be trying to pat himself on the back and pump up the morale of ICE agents for their hard work in illegally censoring the internet. Perhaps it's because he knew that ICE agents apparently hate working there. An anonymous person pointed us to the news that in a recent ranking of government agencies, ICE ranked very near the bottom -- 222 out of 240 agencies. It seems that morale isn't particularly high there.

The same person pointed us to the news of a leaked memo from Morton concerning his disappointment about these rankings, and planning some sort of typical bureaucratic response to bad rankings: appointing someone to lead the effort to improve morale, looking at other agencies with happier employees and hosting some townhall meetings. Perhaps he could also try keeping ICE agents focused on issues related to their actual mandate, rather than having them work on seizing domain names and censoring the internet. Just a thought.

The British Journal of Photography (BJP) brings us yet another story of aggressive assertion of copyright wreaking harm on artists -- the very people it allegedly empowers. It concerns some photos in Getty Images' stock library that have chairs in them. Because a few of those chairs are "famous" in the sense that they were produced by a couple of designers that worked with the architect Le Corbusier, the heirs of those designers, together with the Le Corbusier Foundation, have sued Getty Images in France for copyright infringement -- and won:

"Basically, there are two notions of copyright going against each other in this particular case," says [the plaintiffs' lawyer] de Leusse. "Photographers' copyright, and the designers' rights. Very much like a photographer needs the authorisation of people featured in their photos before selling them, they also need the authorisation of the intellectual property rights' holders when it comes to works of art such as these objects."

That, of course, raises the question: when is a chair -- or any other object -- a work of art? Because the logic of the court's decision would seem to be that before you can take a photo of any "work of art", you must get permission from the rights holder -- but knowing when that is necessary is difficult.

Getty Images is apparently trying to push that problem on to its contributing photographers, judging by an email sent to them, and reported in the BJP article quoted above:

You are responsible under your agreements with us to submit only content for which you have the necessary rights. Using this case as an example, while you may hold a copyright in a particular image or clip, if it contains even a fraction of a Le Corbusier piece then you may not have all the necessary rights under French law to provide that content and therefore may be liable for copyright infringement under French law in respect of the furniture featured.

This ruling will surely lead to an escalation of claims in France against photographers for daring to "infringe" on the rights of someone by including "even a fraction" of an object in their photos -- perhaps unwittingly. Which, in its turn, will inevitably have a chilling effect on photographers' spontaneity and choice of subject-matter, as they try to avoid getting sued by shooting only the most generic of objects, and under tightly-controlled conditions.

And so, once again, the assertion of an intellectual monopoly will lead to an overall reduction in creativity, with both artists and society losing out -- exactly the opposite of what it is supposed to happen.

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The US is often talked about as a major supporter of the "free market," but as we've seen over and over again what we have is really crony capitalism, with lots of efforts being made to protect certain industries through regulation. This hasn't gone unnoticed. The Economist has an article more or less mocking the US for pretending to be all about small government free markets, while really being buried in pointless, confusing and unnecessary regulations:

But red tape in America is no laughing matter. The problem is not the rules that are self-evidently absurd. It is the ones that sound reasonable on their own but impose a huge burden collectively. America is meant to be the home of laissez-faire. Unlike Europeans, whose lives have long been circumscribed by meddling governments and diktats from Brussels, Americans are supposed to be free to choose, for better or for worse. Yet for some time America has been straying from this ideal.

The article points its finger at two key culprits, both of which make sense: politicians who think they can craft perfect legislation to account for every eventuality... and the lobbyists who provide them language to make that possible:

Two forces make American laws too complex. One is hubris. Many lawmakers seem to believe that they can lay down rules to govern every eventuality. Examples range from the merely annoying (eg, a proposed code for nurseries in Colorado that specifies how many crayons each box must contain) to the delusional (eg, the conceit of Dodd-Frank that you can anticipate and ban every nasty trick financiers will dream up in the future). Far from preventing abuses, complexity creates loopholes that the shrewd can abuse with impunity.

The other force that makes American laws complex is lobbying. The government’s drive to micromanage so many activities creates a huge incentive for interest groups to push for special favours. When a bill is hundreds of pages long, it is not hard for congressmen to slip in clauses that benefit their chums and campaign donors. The health-care bill included tons of favours for the pushy. Congress’s last, failed attempt to regulate greenhouse gases was even worse.

These two things are connected, rather than independent, as the article seems to imply. The first one is the key problem. To legislators, creating legislation is the only hammer in their toolbox, so they see every issue as a nail, even when that's rarely the case. And that hubris of being able to create perfect legislation to account for every eventuality is the opening for the lobbyists. Politicians who want to think through every possibility ask the lobbyists to help -- and the lobbyists then have every opportunity to tilt the playing field to their clients, and against the public interest. And that's exactly what happens all too often.

And, of course, if you have any familiarity with these issues, you know that it's incredibly costly:

Complexity costs money. Sarbanes-Oxley, a law aimed at preventing Enron-style frauds, has made it so difficult to list shares on an American stockmarket that firms increasingly look elsewhere or stay private. America’s share of initial public offerings fell from 67% in 2002 (when Sarbox passed) to 16% last year, despite some benign tweaks to the law. A study for the Small Business Administration, a government body, found that regulations in general add $10,585 in costs per employee. It’s a wonder the jobless rate isn’t even higher than it is.

The Economist presents some recommendations on how to fix this. The first is that every law should have a cost-benefit analysis from "an independent watchdog" rather than the current efforts by the CBO. I'm not really convinced that will have much of an impact. We already have CBO estimates, and even if they're not accurate, very few people pay much attention.

They also suggest "the rules need to be much simpler." They suggest that it would be "better to lay down broad goals and prescribe only what is strictly necessary to achieve them." I'm pretty skeptical about this suggestion too. Vague, broadly drafted language leads to uncertainty, and uncertainty can lead to risks and liability... and fear to do things. That wouldn't help. I understand the reasoning here, and if the "broad goals" really are binding, then perhaps this could work somehow, but I think that a better response might be that if the law needs to be so complex, perhaps the law is attacking the wrong issue.

There is one suggestion that makes sense to me, but I don't think it goes far enough:

"All big regulations should also come with sunset clauses, so that they expire after, say, ten years unless Congress explicitly re-authorises them."

We should take that much, much further. First, I don't think it should just be "big regulations." Let's sunset everything, and force Congress to re-evaluate laws already on the books. Along those lines, all new laws (and any re-authorizations of old laws) should come with clear and stated metrics that will be used the next time around to determine if the bill was successful. If the metrics are not met, then the bill should not be allowed to be re-authorized without significant changes. It seems like rules like that might actually take us in a reasonable direction towards passing effective regulations, rather than the mess that we have today. It still amazes me that legislation doesn't already come with metrics to determine if they actually do their job.