Recently, I gave a Sita Sings the Blues talk to a roomful of 15-to-17-year-olds. Near the end I explained Free Culture and my stance against copyright, which led to some interesting discussion. Turns out most of them are manga fans, and familiar with publishers’ complaints about scanned and translated manga shared freely online. They all read them anyway (except one, who prefers to read entire manga in the bookstore). I asked them how they would choose to support artists they liked (once they had some disposable income) and they said:

1. Donate buttons – with the qualification that they want to know as much as possible about where the donation is going. They said honesty and transparency are important.
2. Kickstarter – They all knew about it (which was notable because none of them had heard of Flattr) and valued pitch videos that explained how the money would be used.
3. Custom drawings
4. Merch
5. Physical copies
6. Live Shared Experiences, including ballet, museum exhibits, and concerts. The event aspect was important; they wanted to be able to say, “Remember that one time when that awesome show was here…” They agreed seeing things in person is a more powerful experience than seeing things online, and worth spending more on. One said she would buy CD at a live show because “it reminds you of the show.”
7. One said he would support artists by promoting their work to his friends.

Semi-related, I took an informal poll of how many would prefer to read a book on paper vs. an e-reader. The vast majority said paper, but what they really seemed to want was dual formats: paper copies to read comfortably and collect, and digital copies to search and reference. Makes sense to me. Only two of them had iPads, and none used them for “enhanced eBooks.”

My favorite quote of the afternoon, from a 15-year-old girl:

“We don’t want everything for free. We just want everything.

crossposted from ninapaley.com

 

If there is one sure way to succeed in the modern age, it is by being open, human and awesome. This is something that we are learning over and over again in the entertainment world, and it is especially true for those running successful Kickstarter campaigns. What started with the success of Double Fine's adventure game campaign has lead to the success of a number of other games. One of those games is inXile's Wasteland 2 project. This project is on track to raise over $1.5 million and as Brian Fargo has learned, this is all because the people behind the project have been open, human and awesome with their fans.

In the opening statement of the latest project update, Brian expresses his gratitude for the outpouring of support the project has received.

I continue to be overwhelmed by the positive feedback and enthusiasm from the support I have gotten from Kickstarter. The groundswell of people cheering us on and the evangelism - people spreading the word - is unlike anything I have experienced. In fact, I would say the last week was the high water mark of my career.

This is one of the best statements of gratitude I have ever read from an artist. Brian recognizes that this success is due completely to those who have shown support by donating and sharing the project with others. Without those two actions, there would be no Wasteland 2. As Brian further notes, all this came from being open and human. He shares the story of two people in particular that show the power of that philosophy.

On the next day I get a short tweet from an individual that confesses he pirated Wasteland as a kid and was donating to help make up for it. I of course forgave not knowing he had donated $10,000 dollars. An incredible gesture... now if we could get every pirate of Wasteland 1 to donate we could really beat the Kickstarter all time record.

This is the true power of openness and humanity. The power to turn a pirate into a paying customer. While not all pirates will turn around and pay $10,000, many will turn around and pay full price for later content made by an artist they love as well.

In the next story, Brian notes just how long lasting this openness and humanity lasts in the hearts and minds of fans.

And just today I got an email along with a donation from a kid who lived down the street from me when he was a teenager. His note was as follows:

"This message is intended for Brian Fargo. Brian, I was your next door neighbor when you used to live in Laguna. I was a pesky 15 or 16 year old kid that would come around and ask you about games. You would sit down and take time to talk to me about games, and the industry, and I just wanted you to know how cool it was that you didn't blow me off. It meant a lot to me. Recently, I found out about your Kickstarter movement for Wasteland 2, and I contributed to it because I believe in you and your ability to resurrect the glory of the franchise. I wish you the best of luck in your endeavors, and thank you again for creating some memorable memories for me during my teenage years. Take care!"

It shows that being nice creates goodwill 20 years later.

If that kind of attitude toward his fans created a lasting effect of 20 years, just imagine how much more goodwill he has built up during that time and what he will now build up. This is not some get rich quick scheme but a way to find lasting success. Success that will last 20 years and beyond.

All of this success has led Brian to further express his humanity and gratitude. Rather than hold to this success and keep it all for himself, he has decided to help fund future Kickstarter projects. In a plan he calls "Kick It Forward", he will donate 5% of the profits made from Wasteland 2 toward other Kickstarter projects and asks that all other successful projects do the same. While the money he pledges won't come until after the completion of Wasteland 2, there are many other Kickstarter projects already making money that can really get this campaign rolling. What a wonderful way for artists to further express their humanity and awesomeness.

We've discussed in the past Facebook's aggressive claims of trademarks on pretty much any use of "face" as a prefix or "book" as suffix. The company did eventually get a registered trademark on some uses of "Face", but the "book" part has proven more difficult. That said, you really don't have to register a trademark, but can assert common law trademarks based on use alone, which can be pretty effective. Still, the folks at Ars Technica noticed that Facebook has now slipped a little nugget into its user agreement, saying that if you use the site you effectively agree to the company's claims on a variety of trademarks. It had already included a bunch before, but has now added "book" to the list.

Ars suggests that this could strengthen Facebook's claims against sites, but I'm not convinced. While clickthrough license agreements that no one reads may have some force under law, I would think that any company using the phrases legitimately could make a good case that such a clickthrough in no way diminishes their rights to make reasonable use of "face" or "book." Really, though, Facebook should shackle its trademark lawyers a bit and tell them to chill out in all but the most egregious cases. Being a trademark bully is no way to build a company.

Many people have a weakness for Girl Scout Cookies. They come in so many different varieties -- Thin Mints, Samoas, Tagalongs, Do-Si-Dos, Trefoils, Shout Outs!, Thanks-A-Lot, Savannah Smiles, Thank U Berry Munch, Dulce de Leche, and Lemonades -- but by far, Samoas are most popular, followed closely by Thin Mints. Too bad the cookie season is ending, but here are a few Girl Scout Cookie-related links to tide you over until next season.

• Apparently, Nestle Crunch Thin Mints Girl Scout Cookie hybrid candy bars are real, in all their "dark chocolate cookie wafers and mint chocolate creme, topped with airy crispies" goodness. These limited edition candy bars will be available later this year, and other popular Girl Scout Cookie flavors, like Samoas and Tagalongs, will also be available. [url]
• If you just can't wait until next season -- or if you object to consuming partially hydrogenated oils -- you can always make your own Girl Scout Cookies at home. There are recipes out there for the most popular flavors, and there are also many variations, like Gluten-Free Thin Mints and Samoas Scones. [url]
• Did you know that the palm oil used to make Girl Scout Cookies endangers rainforests and thousands of species of wildlife, and contributes to human rights abuses? If you want guilt-free cookies, go sign the petition to eliminate the use of unsustainable palm oil in Girl Scout Cookies. [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.

Roman points us to the interesting news that the Cleveland Regional Transit Authority has been sued for patent infringement for this daring and shocking bit of piracy: notifying riders that a bus may be late and when it's likely to arrive. You see most normal people would think that this is an obvious idea to those skilled in the art. The reason it wasn't done in the past wasn't because the idea was so difficult to contemplate, or that it was a huge technological challenge, it was merely a limitation of the other technology that makes this possible. Once GPS technology got cheaper, wireless data transmission became more widespread and cheaper and (finally) more people started carrying smartphones (or even SMS-capable phones) this kind of feature sprung up all over the place. It wasn't because some random dude patented the idea, but because it's obvious once all the other key pieces are in place, and it's relatively easy to implement.

But don't tell that to Martin Jones, who holds a bunch of these patents. The "Clevescene" story above does not identify the patents or link to the actual legal filing (why don't news sites do that?!?), but after looking around, it's easy to find that Jones and the company he represents have filed over a hundred lawsuits like this recently over a variety of patents. I'm not sure exactly which patents he's claiming in this particular case, but here's Patent # 5,400,020 for a school bus notification system and Patent # 5,623,260 for a notification system for "impending arrival of a transportation vehicle." There are a lot more similar patents that all seem to be slight variations on the same thing. It seems he had this idea and has tried to lock it up and demand payment from tons and tons of companies -- with many agreeing to pay up.

We've noted what a joke ICANN has been for quite some time, culminating with some of its more bizarre decisions to help governments seize domains and censor the internet. Separately, its sense of entitlement towards its role managing domain registrations is really pretty disgusting. Of course, for years we've also discussed its ridiculous policy of rolling out new top level domains whose sole purpose appeared to be to transfer money from companies to registrars.

At a recent ICANN meeting, however, outgoing ICANN boss Rod Beckstrom (who we had hoped would clean up ICANN back when he took the job) blasted his own organization for the massive conflicts of interest that have made the organization almost entirely ineffectual when it comes to doing anything for the public's benefit.

"I believe it is time to further tighten up the rules that have allowed perceived conflicts to exist within our board," Mr. Beckstrom said in a speech during an Icann meeting in San Jose, Costa Rica, last week. "This is necessary, not just to be responsive to the growing chorus of criticism about Icann's ethics environment, but to ensure that absolute dedication to the public good supersedes all other priorities."

In fact, it looks like the conflicts are even worse than originally discussed, with a significant number of top people being closely tied to registrars directly, such that their positions are heavily influenced by what makes registrars the most money rather than what's best for the public or the internet as a whole. Isn't it time to just start over again from scratch, rather than letting this farce continue?

Last fall, we wrote about some plans by the police in Austin, Texas to go wardriving to find open WiFi networks and pressure people into locking up those networks. After a bunch of people got upset about this, noting that open WiFi isn't a crime, the police backed down. However, it appears other police don't have any such qualms. As pointed out by Slashdot, police in Queensland, Australia are doing a similar wardriving campaign. The official announcement of the program greatly exaggerates the risk here:

Detective Superintendent Brian Hay said police have identified a large number of homes and businesses within the greater Brisbane area with wireless connections that are not secure or have limited protection. These people may as well put their bank account details, passwords and personal details on a billboard on the side of the highway.

Except that's really not necessarily true. Banks and most sites that require passwords have long known to make use of SSL encryption. It's not perfect, but it's not posting your password on a billboard on the side of the highway by a long shot.

“Unprotected or unsecured wireless networks are easy to infiltrate and hack. Criminals can then either take over the connection and commit fraud online or steal the personal details of the owner. This is definitely the next step in identity fraud.”

That could be true in some cases, but it's not absolutely true, and plenty of people can be perfectly safe using open WiFi with a few common sense precautions. It's sad that the police would exaggerate like this.

In January, we wrote about the Supreme Court's somewhat surprising ruling on GPS monitoring by law enforcement, in which it suggested (but didn't fully say) that putting a GPS device on a car might need a warrant -- a pretty easy process that the FBI just didn't want to go through. Following this, we noted a report saying that the FBI scrambled to turn off 3,000 such devices that had been placed without a warrant.

However, in an NPR report about just how unhappy the FBI is about all of this, it notes that the FBI actually scrambled to file for warrants on most of those 3,000 devices, such that only 250 were permanently shut off. And yet it's still complaining about this whole "getting a warrant" thing. As Tim Lee notes, FBI director Robert Mueller is basically complaining to Congress that it's just so hard:

In Congressional testimony last month, FBI Director Robert Meuller said the ruling "will inhibit our ability" to do GPS tracking "in a number of surveillances where it has been tremendously beneficial." Mueller said that in cases where they didn't have probable cause, the FBI is forced to deploy teams of six to eight people to track suspects the old-fashioned way.

"If you require probable cause for every technique, then you are making it very, very hard for law enforcement," an FBI lawyer told NPR.

But, uh, isn't that why we require a warrant? It's supposed to be hard to spy on people. That's kind of one of the key principles of the Constitution. Again, as Lee notes:

Of course, that's kind of the point. Law enforcement's job would be a lot easier if we just did away with the Fourth Amendment and gave the police unfettered spying powers. But that would open the door to abuses of power, so the founders wisely limited government searches to cases where the government could demonstrate it had probable cause to believe that a crime had been committed.

Separately, the fact that so many of the devices were able to be turned back on via a warrant suggests that this intermediary review step isn't really a problem for the FBI in most cases. But it's one that likely stops significant abuse of the system.

We first wrote about IP Relay fraud all the way back in 2004, when it was pointed out that a huge percentage of calls using this system were fraudulent, and the telcos were doing nothing to stop it, because they were profiting at the taxpayer's expense. If you're unfamiliar with the system, IP Relay has a good intention: to help hearing impaired people communicate -- allowing them to send text-based messages to phone numbers, which are then read by operators. In order to fund this service, the FCC pays telcos an astounding $1.50 per minute on such calls. Scammers, however, quickly realized that this was a way to make free, almost totally anonymous, calls. And the telcos had every incentive to encourage any usage, scammy or not, since it meant they got paid (from taxpayers).

The fact that all of this was obvious eight years ago but it was only just now that feds decided to sue AT&T for abusing the system is pretty incredible. To be fair, the FCC passed rules in 2008 that required telcos try to register users to verify who they were (to take away some of the anonymity of the system). The key issue with this lawsuit is the claim that AT&T intentionally implemented an authentication system that wouldn't work. In other words, it purposely scammed taxpayers out of a ton of money:

The United States alleges that AT&T violated the False Claims Act by facilitating and seeking federal payment for IP Relay calls by international callers who were ineligible for the service and sought to use it for fraudulent purposes. The complaint alleges that, out of fears that fraudulent call volume would drop after the registration deadline, AT&T knowingly adopted a non-compliant registration system that did not verify whether the user was located within the United States. The complaint further contends that AT&T continued to employ this system even with the knowledge that it facilitated use of IP Relay by fraudulent foreign callers, which accounted for up to 95 percent of AT&T’s call volume. The government’s complaint alleges that AT&T improperly billed the TRS Fund for reimbursement of these calls and received millions of dollars in federal payments as a result.

As Karl Bode at Broadband Reports notes, if you start doing the math, the claim that this is about "millions of dollars" may be a "severe under-estimate." We're talking about 95% of all of these calls, done for many years, being fraudulent, with AT&T having no incentive to cut them out, and scammers having tremendous incentive to use the service as well. Again, all of this done with taxpayers footing the bill. While AT&T definitely deserves scorn for allegedly purposely choosing to set up a bogus registration system, a ton of blame has to go to the government for letting all of this happen for so damn long, and not recognizing just how much AT&T was fleecing taxpayers for under the system (not to mention all of the scams this probably helped enable).

Considering how much time the MPAA has spent arguing that the sky is falling, that jobs are disappearing and the movie industry is collapsing, you'd have to imagine that its PR people had to think long and hard about how they "spin" the news that global box-office receipts set yet another new record in 2011, as they rose by 3%. It really is quite the PR challenge, and the MPAA pulls it off with a bizarre press release patting itself on the back, and then insisting that piracy is right now... just about... this close... no, really... finally.... maybe... having an impact. How's this for awkward:

"Innovation and technology continue to be a driving force for our business," Dodd said. "People are driven to fill theater seats by the promise of great films and a great, technologically enhanced movie going experience. But online content theft continues to threaten the economic success of our industry -- an industry that employs millions of Americans and brings money into the U.S. economy from around the world. We should protect that success, not undermine it by stealing products and cutting the revenue it puts into the U.S. economy."

Yup. Love the spin, overpaid MPAA PR people: "protect that success"? Good stuff. "We're dying so bad that we're setting tremendous new records..." Digging into the details a bit, yes, the US numbers were off ever so slightly, but there's growing evidence that was almost entirely about the quality (rather, lack of quality) of the movies that were released last year, as the MPAA is also gleefully talking about how domestic box office is already up by 14% this year. And, even with the very slight dip last year, the MPAA notes that domestic box office is up 6% in the last 5 years, so the trend is still clearly upward. They also note that 67% of all people in the US and Canada went to the movies at least once in 2011, with the younger generation again going quite frequently -- with the 25 to 39 demographic and the 18 to 24 demographic (also known as the prime demographics for knowing their way around the dark underbelly of the interwebs) being the biggest movie-goers.

Also, pretty much anywhere around the globe that you look, box office revenue is up. Over the last five years, box-office revenue from Europe, the Middle East and Africa is up a whopping 24%. Asia Pacific? Up 38%. Latin America? Up an astounding 86%.

Buried deep within the MPAA's report is the basic admission that the reason for the drop in 2011 certainly wasn't "piracy," but rather the lack of Avatar:

3D box office was down $400 million in 2011 compared to 2010, which contained Avatar’s record-breaking 3D box office performance, while 2D box office was consistent with 2010.

Some keep trying to make a big deal out of the fact that the actual number of tickets sold has shown a steady decline, but that's silly. No business is focused on maximizing tickets sold. They focus on maximizing revenue. If the goal was to maximize tickets sold, that's easy, just lower the price to a penny and watch the number of tickets sold go sky high. Instead, as the report shows, ticket prices have continued to rise, though it rose by the smallest amount (1%) in 2011 that it has since 2002. That suggests, at least, that earlier in the decade they may have been underpricing a bit, but may have found something of a ceiling, for the time being.

Now here's a weird one. THResq has a report concerning Lindsay Lohan's lawyer in her ridiculous case against the rapper Pitbull. That lawyer has now been accused of plagiarizing most of a recent filing which tried to argue that Pitbull's First Amendment rights weren't an issue in the case. If you don't remember, Lohan sued Pitbull because he had a lyric in a song that reads "I got it locked up like Lindsay Lohan." According to Lohan's lawyer, this violates her publicity rights under NY state law. Publicity rights, of course, are a relatively recent phenomenon, found in various states, that are now being abused widely by semi-famous people to try to stop others from talking about them.

Lohan's lawyers seem to be particularly enamored with using publicity rights claims in new and increasingly bizarre ways. She's sued E*Trade for one of its commercials that refers to a baby named Lindsay and says she's a "milkaholic." Despite no other connection to Lohan, her lawyer insisted this was a violation of her publicity rights. Then there was the time that she threatened the jewelry store from which she took a necklace, leading to her arrest. What was the threat about? Believe it or not, the claim was that the video store surveillance footage was a violation of her publicity rights. Yeah.

Either way, Pitbull's lawyers filed their motion to dismiss (pdf) not too long ago, arguing that Lohan failed to state a legitimate claim:

... the First Amendment bars her claims because the Song is protected artistic expression. Moreover, the incidental use of Ms. Lohan's name was not for advertising and trade purposes and therefore is not proscribed by Section 51 as a matter of plain and unmistakable law. Ms. Lohan's remaining causes of action are equally baseless, since she has not -- and cannot -- allege facts warranting injunctive relief, monetary damages for severe emotional trauma or a finding of unjust enrichment.

Honestly, this should be a pretty easy case to dismiss, and I'd be surprised if the judge let it go much further. However, Lohan's lawyer, Stephanie Ovadia responded to that with an opposition filing that rambles on bizarrely about a variety of topics from the First Amendment to publicity rights to trademark law to consciousness (seriously, see below), with little effort to actually explain what that has to do with the case. For example, there are random discussions of "non-verbal expression," tattoos, inciting lawless behavior, trademark infringement, celebrity look-alikes and whether or not any of that is covered by the First Amendment. Of course, absolutely none of that has anything whatsoever to do with the case at hand or the issues it raises. Nor does Ovadia even attempt to try to connect these issues to the case.

There are also just some outright bizarre parts in the filing:

The threshold of consciousness is the dividing line between something that can be processed by the conscious mind and something that enters the subconscious mind without any such processing. A hidden message is not intense enough to produce a sensation but has sufficient intensity to influence the behavior and mental processes of one's mind. The decisions the conscious mind makes are based upon the knowledge and reasoning skills one has developed through experience and education....

It goes on in the same manner for a few more sentences, never once even coming anywhere near a legal point, nor referencing any part of the case.

Pitbull's lawyers quickly hit back with a filing (pdf) and exhibit (pdf) of their own, noting that Lohan's filing doesn't actually address the pretty clear legal issues raised in their initial motion... and also pointing out that perhaps the reason the filing is so nonsensical is because nearly all of it is plagiarized from random web sources, which they highlight in a handy chart. That bizarre quoted text above apparently comes from the Thinkquest library, which appears to be a project of the Oracle Education Foundation, and whose content is "created by students around the world who have participated in a ThinkQuest Competition."

Other sources include a bunch of copied paragraphs from the Thomas Jefferson Center for the Protection of Free Expression (who, I would guess, would likely come down on Pitbull's side in this case), the LA Times, the Association for Corporate Counsel's website, some presentation about publicity rights found on Docstoc, some law firm websites and a variety of other sources. I'm not a lawyer, but it's not hard to read the filing and wonder what the hell Ovadia was thinking. As THResq wonders, beyond helping to make sure that this case is unlikely to live much longer, the cutting-and-pasting throughout the legal filing might actually expose Lohan and Ovadia to copyright infringement charges themselves, especially from the law firms whose content was copied.

Update: Eriq Gardner, who wrote the THResq story has an update:

Reached for comment, Ovadia's office pointed the finger at Anand Ahuja, of counsel at the firm, who wrote the brief.

Ahuja was contacted too and says that he turned in "4 or 5 drafts to Stephanie, who looks like somehow by mistake submitted the first one."

He adds that typically his first draft includes footnotes and references and that it gets amended along the way, but that the submission was turned in past the judge's deadline, stripped of his footnotes, and that it was Ovadia's job to review it before signing and filing the document.

None of that makes Ovadia or her law firm look very good. First, I love the finger pointing between the two lawyers in the press. It's like reality TV inside a law firm. Second, Ovadia's name is on the filing. It doesn't matter if Ahuja wote it, she should have read it and realized that it was almost entirely nonsensical. Third, I don't know how they write "drafts" but cutting and pasting huge chunks of totally irrelevant information -- including a treatise on consciousness, just doesn't seem like a particularly reasonable practice.

Capitol File Magazine has a bit of a puff piece on the MPAA's Chris Dodd one year into his job at the lobbying organization (a job he took just months after promising he'd never work as a lobbyist). The piece isn't really that enlightening, other than an admission from Dodd that he didn't know anything about the movie business before he took the job. He probably should admit that he still knows nothing about the internet either, which is a pretty bad place to be if part of your job is trying to guide the movie industry into the future. In fact, the writeup notes that Dodd's one skill is his ability to push legislation through -- and then doesn't mention how he completely flopped on that front with SOPA/PIPA.

However, what the article does do is highlight Dodd's new talking points about how he's really protecting blue collar jobs, not Hollywood studio execs and movie stars:

“The first year has been a little chaotic,” says Dodd. “There’s been a steep learning curve. I bought into the notion that this was a redcarpet, Oscar-night kind of business. Over 2.2 million Americans are employed by the industry. Most of them are in blue-collar jobs, involving the people who drive the trucks and set up the lights. I didn’t know that when I started.”

It’s not just the names on the marquee, but the rank-and-file workers who are impacted by intellectual property infringements, says Dodd. “People think nothing of stealing from Charlie Sheen,” he explains, “but they might care if they realized they were stealing from someone who drives a truck.”

Yup. It's all about the truck drivers. Of course, the 2.2 million number is wrong. The Congressional Research Service says that number is less than 400,000. And, when we dug into the actual numbers, it shows that jobs in actual movie making are on the increase. The only real decrease seen in movie jobs has been in the number of people employed by theaters. But that's got nothing to do with piracy at all, since theater revenue has been going up and up and up (with a slight dip just last year). The job losses there have been about consolidation in theaters and the rise of giant multiplexes that employ very few humans.

That said, since Dodd mentions that poor, poor truck driver twice, I'm curious of a couple things. Which truck drivers get a cut of movie royalties? I'd like to know. Second, can anyone find me the truck driver who lost his job because of file sharing? I'd like to find that guy.

Remember earlier this week when the NSA's boss Keith Alexander tried to shoot down reports that it was storing and datamining all sorts of communications info about Americans (despite a mandate that says the NSA can't spy on Americans?). Yeah. So then there's this news:

The Obama administration is moving to relax restrictions on how counterterrorism analysts may access, store and search information about Americans gathered by government agencies for purposes other than national security threats.

Attorney General Eric H. Holder Jr. on Thursday signed new guidelines for the National Counterterrorism Center, which was created in 2004 to foster intelligence sharing and to serve as a clearinghouse for terrorism threats.

The guidelines will lengthen to five years — from 180 days — the center’s ability to retain private information about Americans when there is no suspicion that they are tied to terrorism, intelligence officials said. The guidelines are also expected to result in the center making more copies of entire databases and “data-mining them” — using complex algorithms to search for patterns that could indicate a threat — than it currently does.

What's amazing is that these people still believe having access to so much info makes it easier to spot important data points, rather than hiding them deeper in the haystack. Having so much data is often useful in post hoc analysis, letting them go back and figure out who to blame, but there's little to suggest such widespread spying on Americans will be all that useful in actually preventing attacks.

Even if there are legitimate reasons for doing this, the idea that the data won't be widely abused is laughable:

They also said they had built safeguards into the system in to protect against misuse of the data, including audits to make sure that searches by government officials of the growing center-held databases would be done only for legitimate terrorism-related purposes.

Of course, we've seen how similar audits have worked in the past, where the DOJ has been regularly dinged for abusing such rights... and then nothing happens. The audits show wrongdoing, intelligence officials pinky swear that they won't do it again, and then they go right back to abusing the info.

Well, this one's weird. We recently wrote about the attempt by Summit Entertainment (the folks behind the Twilight movies) to claim ownership of a date, issuing a takedown notice over a painting by Kelly Howlett because its creation date (and title) matched a Twilight movie release date (seriously). Now, Mary Jo Place (who goes by the handle Mojo) writes to tell us about her own similar and even stranger situation, in which Summit took down some of her Zazzle merchandise because... well... that's anyone's guess.

The work in question is an original painting called "Sheep Are Pretty Stupid", copies of which she was selling on a variety of merchandise through Zazzle. The products, which again have absolutely nothing to do with Twilight, had been up for a few months before she received a notice from Zazzle, telling her they had removed some of them because of a complaint from Summit. Oddly, it was only the iPhone/Pad/Pod cases that were taken down—not the t-shirts or any of the other merch, even though all the items bore identical descriptions:

Sheep Are Pretty Stupid.
Yes, they are, but you don't have to be numbered among them! Mojo suggests you go AGAINST the crowd by buying one of her sheepie shirts. Or mugs. Or, whatever. Several years ago, I decided I wanted to paint my own Christmas card of the whole lion-and-lamb thing, only from a more, uh, realistic perspective. This is the result.

The email from Zazzle also suggested that the problem could be the search tags, but those (again shared identically by all the merchandise) were mojo, crap, craptacular, sheep, lion, and lamb. Nothing there that suggests Twilight either, except possibly crap. Understandably baffled, Mary Jo contacted Zazzle only to receive a condescending canned response informing her of their duty to abide by intellectual property law. She wrote back again, and actually linked to our coverage of the other takedown, but got nothing back. So she started digging, which brought her to Kelly Howlett's Facebook note about her situation, where she saw something interesting in the comments—and this is where things get weird:

Since Mary Jo's items were gone, she couldn't check to see if she was having similar tag problems. Nevertheless she emailed Zazzle again, included screenshots of the comments and suggested that this may be what happened. A little while later, she received another canned response from Zazzle telling her the products had been restored, but still offering no explanation whatsoever.

All this creates one big question: is Zazzle doing some sort of automatic tagging, which is then triggering false takedowns? If so, that's a pretty big mistake by Zazzle—but some cursory Googling and digging through their help forums doesn't reveal any references to an auto-tagging or community tagging system. If any readers are Zazzle users and have experienced something similar, or have any insight into this, please share it, because nobody seems to be able to figure out what's going on.

Last month I wrote about how the Netherlands is looking to introduce new flexibilities into its copyright laws, based on some interesting research on copyright exceptions. There must be something in the air, because a wide range of other groups are contemplating exactly the same approach.

For example, the main document of the UK government's consultation on copyright (pdf) devotes no less than 65 pages to the area, proposing exceptions for private copying, preservation by libraries and archives, research and private study, text and data mining, parody, news reporting, and use by the disabled, among others.

On the other side of the globe, during the Melbourne round of the secret TPP negotiations, a group of high-powered tech companies have been urging the inclusion of copyright exceptions as part of that treaty. As Sean Flynn explains:

the Computers and Communications Industry Association (CCIA) -- representing tech companies like Google, Facebook, E-Bay and Yahoo -- has been circulating a new proposal for adding copyright limitations and exceptions to "permit the smooth functioning of the Internet." It is incredibly well researched and supported and includes some good ideas. My favorite among them is a proposal for mandatory flexible limitations and exceptions to copyright in every system:

"Such exceptions and limitations shall permit the utilization of works and other subject-matter to the extent justified by the purpose of free expression (including commentary, criticism, and news reporting), participation in the cultural life of the community, transformative use, teaching, research, scholarship, personal use, and the functioning of, and innovation in, the digital environment, provided that such utilization is consistent with fair practice."

Finally, and perhaps most surprisingly, the French copyright enforcement body, HADOPI, has released a detailed questionnaire on copyright exceptions (pdf in French) as part of its research into the subject. Here's the introduction explaining the thinking behind the move:

Exceptions to copyright and neighboring rights represent the search for a balance between the need to respect copyright and neighboring rights and that of allowing the use of works with areas of freedom for the benefit of users.

This balance seems challenged today. Indeed, the development of new technologies, leading to new uses of works, (internet, social networks, streaming, cloud, scanning ...) and blurring the line between private and public, calls into question a law developed in part for a completely different context, and insufficiently adapted to these new uses.

This challenge is twofold. First, from a legal viewpoint, the current texts on exceptions do not take into account these technical developments and current uses of works in a fully satisfactory manner. This results in an increasing reliance on rights other than intellectual property, in particular Community law, in order to circumvent imperfections (competition law, human rights ...). Secondly, in terms of use, the ease with which a work may be appropriated and transmitted seems to render meaningless the concept of exceptions and raises the question of their suitability for the current context.

It therefore seemed useful to Hadopi to undertake this project to take stock of the issues and, where appropriate, make recommendations to address shortcomings of the present system and attempt to define a more satisfactory balance representing a new consensus. This new balance would not be limited to amending and supplementing the exceptions to copyright and neighboring rights, it could aim to establish a "right to exception" or a "right of exception", including the development of an independent legal doctrine, enforceable before judges and on a par with intellectual property law.

That's pretty bold, and extremely welcome coming from this particular organization, which hitherto has seemed to be more aligned with the maximalist view of copyright. If even HADOPI can see the need for not just copyright exceptions, but a generalized right to exceptions, maybe there is hope after all.

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We've talked, at length about the ridiculousness of regional restrictions when it comes to content on the internet. So, to some extent, it's nice to see that News Corp./Fox is actually more or less admitting that such restrictions are silly and has released a new TV show simultaneously around the globe:

But this week, News Corporation is staging a worldwide premiere of “Touch,” a new drama starring Kiefer Sutherland that celebrates the very kind of interconnectivity that will allow the show to start almost simultaneously in 100 countries and territories. In the United States it will appear on the Fox network on Thursday night; in Canada, on Global Television; in Germany, on ProSieben; in Russia, on Channel One.

The worldwide rollout will allow American viewers to react to “Touch” in almost real time with viewers on other continents and in other languages, presuming, of course, that they are motivated enough to do so.

Of course, part of what made that happen was they were able to find a global advertiser (Unilever) to agree to put its ads everywhere. What's still amazing to me, however, is that in 2012 this is still considered a "big thing." This should have been done a decade ago, at least. Because while the networks are finally waking up to this, internet users had routed around them ages ago anyway.

To Tim Kring, the show’s creator, the shift is stark. In spring 2007, six months after his show “Heroes” started in the United States, he watched hundreds of “Heroes” fans line up for an event in Paris, even though the show had yet to be seen on television in France.

“Every single person there had seen every episode. They had all gotten it illegally off the Internet,” he said in an interview. It was then, he said, that he realized, “Audiences will find these shows no matter where they are.”

And yet, here we are in 2012 and it's still "big news" that a show and TV network realize this. Progress certainly seems to come slowly to some industries...

Last week Techdirt reported on an important decision in India to allow the production of a generic version of a kidney and liver cancer drug, with huge savings for the Indian health system, and major effects in terms of lives likely to be saved. Now Intellectual Property Watch has news of a court case in Brazil that could have equally important consequences for the local use of generics:

Word is spreading of a recent decision by a Brazilian judge to annul a patent on a key AIDS drug, effectively allowing less expensive generic versions into the country, and calling into question other such patents.

Here's why the case is setting a precedent:

A leading feature of the case is that the patent was granted under the "pipeline" process, which allowed "revalidation" of patents granted in other countries while Brazil was modifying its patent law for certain new areas including pharmaceuticals.

The judge in this case ruled that the pipeline process was unconstitutional, according to sources.

The "pipeline" process refers to a mechanism for granting patents in technological fields that had earlier been excluded under Brazilian law, using the date of the first filing for patents elsewhere. This allowed companies to extend the reach of patent monopolies already obtained outside Brazil without needing to go through that country's patent application process.

Lack of constitutionality had been raised back in 2008 because of the way that pipeline patents diminished the public domain:

"The concession of pipeline patents also violates the acquired right of the collectivity by removing from the public domain knowledge belonging to everyone, which once again goes against society’s interest," said Renata Reis, an attorney at the non-governmental Brazilian Interdisciplinary AIDS Organization.

Among the drugs that were removed from the public domain by the pipeline process is the ritonavir/lopinavir combination, the subject of the judge's order annulling Abbott Laboratories' patent. Not surprisingly, the company has said that it will appeal the decision. But if the ruling is upheld it may lead to other patents granted to drugs through the pipeline process being invalidated too.

Taken together with the Indian decision, this latest ruling emphasizes the increasingly important role of generics in global healthcare. That's another reason why both ACTA and the Trans-Pacific Partnership agreement are problematic.

ACTA, for example, allows generics to be seized in transit on the basis of complaints about names that are "confusingly similar" to a brand-name drug. TPP, meanwhile, would bring in a range of measures to make it substantially harder for companies to produce generic versions of patented drugs in signatory nations. The divergence between what the BRICS countries are doing in this area, and what plurilateral treaties like ACTA and TPP seek to mandate, is another reason why it is unlikely the former will ever sign up to the latter.

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