Well, what do we have here? Another artist operating outside the constraints of the recording industry and yet, against all odds, making money? Probably too good to be true. He's built a huge following on known pirate site YouTube and his first two royalty checks totaled over $200,000, but the question remains: how can Alex Day make money with such a wrong-headed approach?

The Tunecore blog gets to the bottom of this Alex Day sensation. In a day and age where no one can sell music, Day is doing exactly that. Not only is he selling music, but he's doing many things completely wrong, if conventional thinking is anything to go by. Just how successful is Alex Day?

Alex Day, a 23 year-old musician from Essex, England is focused on releasing music that puts listeners in a good mood. And it seems to be working. He has over 500,000 YouTube subscribers, over 500,000 songs sold, almost 100 million youtube views, and was the subject of two recent Forbes articles.

How does he do it? By breaking every rule in the "How Things Are Done Around Here" book.

First rule broken?

Staggered/Windowed Releases Are Good

Day has released three (3)(!!!) singles simultaneously, ruthlessly "cannibalizing" his own market. How's that working out for him?

[I]t seems to have worked so far. The songs are well on their way to selling 150,000 copies. Just ONE of the videos has already done more than 300,000 views, and the three have been streamed more than 100,000 times on Bandcamp.

You'll Never Be Famous Without A Major Label's Help

It’s basically perseverance. [I]’ve been doing it six years, and only in the last year have people really started paying attention to my music. I make sure I upload at least one video a week, keep my stuff consistent and entertaining, and don’t talk about music all the time because people would get bored.

No One Takes YouTube "Artists" Seriously

Well I have Twitter and Facebook pages like everyone else in the world, but really it is just YouTube. I don’t have a label, a manager, a press team, a radio plugger, an agent, a publicist, not even a music producer. I make my own music, my own music videos, and YouTube is how I get the word out on those things.

Control Every Use Of Your IP

I noticed on your site that you’re very vocal about encouraging your fans to use your music in their videos, projects, talents shows, and whatever else they’d like. What’s your philosophy behind this?

Is that not the norm? I thought everyone would want to do that. I guess it’s just as I’ve said, I want as many people as possible to hear and enjoy my music, and if people are using it in their own projects, that’s a good way of sharing my songs with people. As long as you’re not taking the credit for the song and you’re doing something new with it (not just re-uploading the song with the artwork to YouTube when I already have a video there of my own to showcase it), you can help yourself.

Full Albums Are The Only True Way To Create/Enjoy Music

Stop recording albums. I understand that an album can be a great form of art in its own right when all the songs are designed for it and they all weave into each other and they have a concept. Great—but most don’t, most artists don’t write like that, and with the cherry-picking available on iTunes, there’s no point bundling them together. Just focus on making one great song. Keep writing and recording until you have one great song. Then go from there. You only need one great song to make it.

Real Artists Don't Need To Connect With Fans Or Make Music People Enjoy

I make music people enjoy and they buy it... That’s my big trick. If I was only doing it for fame, I could sign with a label. If I was only doing it for money, I could churn out rubbish every two weeks. But I take my time and put out quality stuff I’m proud of, for the love of making great music and sharing it with an audience—the more people that hear it, the better. I want to make things that people can love.

With this many rules broken, it appears that Alex Day is yet another solitary example of business models that won't work for anyone else. 

Back in June, we wrote about a challenge -- from both the Village Voice's Backpage.com and the Internet Archive to a new law in Washington State, SB 6251, that effectively criminalized online service providers based on actions by their users. We've long talked about the problems of such secondary liability efforts, and thankfully the US has section 230 of the CDA that forbids most such efforts to apply secondary liability. And, indeed, the court has now granted a preliminary injunction against the law, citing the Section 230 issues, among other things. Basically, the court sides with Backpage and the Internet Archive on every issue here, finding the state's reasoning in support of the law to be weak.

There are some important points in this ruling. First up, the court said that Section 230 applied, even though this was about a criminal law issue, rather than a civil law issue. Many (even Section 230 supporters) have argued that Section 230 only applies to civil law. The court notes that the law says it doesn't apply to federal criminal laws, but says nothing about state laws. And, as such, CDA 230 should be seen to apply to state laws, even if they're criminal:

If Congress did not want the CDA to apply in state criminal actions, it would have said so.

So, the law is already on shaky legs due to it being knocked out by Section 230. However, the court goes further to focus on how the bill violates the First Amendment as well, targeting the suppression of speech. It's a pretty detailed explanation for how laws that target speech, rather than action, have a much higher bar, and this bill does not appear to meet that higher bar. Most importantly, the court recognizes that any laws targeting speech can have severe chilling effects, even on legal speech, and that's unacceptable under the First Amendment:

The most problematic aspect of SB 6251 is not the protected speech that it regulates by its terms, but the likelihood that it will chill a substantial amount of protected speech in addition to the unprotected speech that Defendants argue the statute was meant to address

The court even notes that it could create chilling effects and potentially criminalize sites like Facebook and Twitter as well. While the state denied this possibility, the judge points out that it's entirely possible to read the law in that way, and that alone could create chilling effects from companies trying to avoid criminal liability. Finally, the court notes that the law also almost certainly violates the Commerce Clause, because it would regulate companies located entirely outside of Washington State.

In other words, the state is on very thin ice here, as the court isn't buying any of its arguments for why the statute is legal. At this point in the case, the discussion is just over whether or not an injunction is granted to block the enforcement of the law -- and that's now done. There's still much more to come in the case, but the law doesn't look likely to survive at this point, and that's a good thing. There are some real issues that the law seeks to take on (mainly dealing with prostitution and child porn), but it does so in such a broad way and with the wrong tool: criminalizing service providers. It's good that the courts are recognizing how this law is massively overbroad.

EA Games has agreed to a $27 million settlement for charges of price-fixing related to its NFL, NCAA and (lawl) Arena Football League games. While this may come as somewhat a relief to purchasers of EA games, it's highly unlikely that this will result in EA changing its core strategy. It certainly doesn't seem to have had any affect on EA's exclusive license with the NFL (which continues through 2013), a deal that was the impetus for this lawsuit.

First off, the settlement sounds super-big, but in reality, it breaks down to couch change for those people who were "fortunate" enough to make a "recent" purchase of one of the named EA Sports titles.

Those who bought games for a PlayStation 2, original Xbox or Nintendo GameCube could receive up to $6.79 per title. Games purchased for the PlayStation 3, Xbox 360 and Nintendo Wii will garner a $1.95 refund, reports USA Today.

The named platforms call to question the term "recent," which is used in the original USA Today article on the subject.

In a statement, law firm Hagens Berman says EA will create a $27 million fund for players who purchased a recent copy of any Madden NFL, NCAA Football or Arena Football title.

The larger payout for older platforms is likely due to the event that led to EA locking down an exclusive deal to publish Madden Roster Update as the sole representative of the National Football League.

Way back in 2004, 2K Sports released ESPN NFL 2K5 at the extremely friendly price point of $19.99, or under half the price of EA's game, which debuted at the normal $50. Not only did it beat Madden in the price war (and force EA to drop Madden's price to $29.99), but in many critics' estimation, it was a superior game, especially in terms of presentation.

EA felt threatened by this move and responded the way any corporation that would go on to hold the title of "Worst Company in America" would: by throwing its considerable weight around and locking down an exclusive deal with the NFL. No doubt the NFL was also worried, having momentarily been associated with a budget-priced game. Hence, nothing but Madden until 2013 and this lawsuit, which was filed in 2010.

The NFL's vice president of consumer products, Gene Goldberg, said at the time that he wasn't concerned that EA's monopoly would result in stagnation, stating that there is "a lot of self-imposed pressure to make [Madden] stand out in a robust and diverse marketplace." Maybe so, but I would imagine that EA's flagship football game would have improved much more dramatically with a high-quality competitor constantly breathing down its (overpriced) neck. 2K Sports' product was so far ahead of Madden at the time that gamers still find it to be a better experience than Madden 11.

This isn't EA's only NFL-related lawsuit, either. U.S. District Judge Richard Seeborg just gave the go-ahead for former NFL players to seek class-action status in their lawsuit against EA for using their likenesses in Madden NFL games. EA had hoped to avoid this sort of situation by stripping names and shuffling jersey numbers, but the retired players pointed out that their digital alter egos were accurate in terms of skills and physical appearance.

EA played the "stats are facts" card, quoting an earlier decision that saw Major League Baseball being told that player names and statistics are facts, and therefore cannot be copyrighted. Seeborg's ruling dismissed this claim, stating that current publicity rights laws and pointing out that Madden games show the retired players "in their conventional role as football players" and is the "digital equivalent" of "using the players' pictures to sell T-shirts." 

Speaking of "couch change," the proposed settlement pales in comparison to the damages originally sought in the price-fixing lawsuit, which alleged that without the exclusive NFL deal, Madden would have been forced to price its games at a more reasonable $29.99, rather than the $50-60 we're all kind of tired of paying. This difference resulted in gamers paying an extra $701-926 million for EA sports games between 2005 and 2010.

But $27 million it is. Gamers shouldn't start counting that incoming couch change just yet though. This settlement still needs to be approved by the court, a move which could take months. While this might be of some consolation to the gamers who filed the suit, it feels more like a gesture of hands-folded-politely compliance, as if to show that EA is a "Good Corporate Citizen" and, as such, is worthy of its continued NFL-granted monopoly. And despite its exclusive client currently "entertaining" two lawsuits, the NFL doesn't seem to be interested in shopping around for new suitors, leading one to believe that it really doesn't care much for non-exclusive deals... or for its former players.

Manned missions outside of low Earth orbit take a bit more planning since supplies are a trickier to deliver the farther out astronauts go. NASA is looking at a trip to Mars in a couple decades, and part of its preparations is creating edible items that are safe and nutritious for such a long trip. Here are just a few interesting stories about eating in other gravitational environments.

• The menu for astronauts headed to Mars could include items like (vegan) pizza and fresh vegetables/fruits. The gravity on Mars should allow astronauts to chop vegetables and do some food prep that's a bit harder in a zero-gravity environment. [url]
• Buzz Aldrin took a communion wafer and a vial of wine to the moon in 1969. Aldrin quietly read a few bible passages and consumed these items in the hours before he was scheduled to go for a walk on the moon's surface. [url]
• A trip to Mars requires the shelf life of its food supplies to last about five years, but NASA's current astronaut menu only lasts a couple years. Lockheed Martin researchers are looking into a bunch of different (non-meat and non-dairy) menu options for a 2030-ish planned mission to the red planet. [url]

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

Fan fiction is one of those areas that treads that fine line between what some people find to be fair use and others find to be infringing. These derivatives of the original work often take form in ways that the original creators did not intend, expect or find reasonable. When it comes to some creators, fan fiction is something to be embraced, but some also feel that it violates their copyright. So with such murky water in this area, how are fan fiction writers to know if their creative work is fair use? This is where Rebecca Tushnet comes in with an interview with Reason.

In this interview, Rebecca highlights the ways in which many companies have accepted fan fiction and other fan created derivative works as a necessary part of getting consumers to engage with the content.

It takes a big studio to make The Avengers, but it doesn't necessarily take a big studio to write a piece of Avengers fan fiction. Big content companies largely recognize that fan activities are really good for them because they engage people.

Additionally, Rebecca is a member of the Organization for Transformative Works, which helps fan fiction creators understand their legal rights and defend themselves in those cases where the original creator seeks to take down such works—something that happens far too often, even when the creator has shown support in the past.

Regardless of the potential legal ramifications, creators need to realize just how much of a cultural impact their works have on their fans. As people grow to love certain works, they seek to express that love by creating and distributing content that they feel expresses their fondness for it. What we shouldn't see, and what makes this organization so important, is creators lashing out at fans for being fans. Think about how ridiculous that sounds. Why would anyone want to punish a fan for nothing more than loving the original work or artist? Sadly, ridiculousness is not above the mindset of many people and companies. However, by embracing such fan creativity, not only are you fostering the overall community and culture that surrounds your work, but you are also allowing real and powerful growth. As more people find your work through derivatives, they will seek to support you as well.

Is it really that time again? When NBC screws up its coverage of the Olympics by showing people what it thinks they want to see, rather than what they actually want to see? Every two years, the Olympics does two appallingly annoying things: makes it difficult to watch the Olympics online... and refuses to show it live on TV. In the 20th century view of NBC execs like Rick Cotton, the only thing that matters is prime time television. So they hold off and focus everything around that prime time slot... effectively pissing off everyone else. As Erick Schoenfeld noted: "The only Olympics tweets I've seen all day are from people pissed that NBC is not broadcasting the opening ceremony live."

Hell, even when they go on Twitter the Olympics can't do things right. There was a lot of buzz around the fact that NBC and Twitter teamed up to create an "Olympics" hub. Great (though some people are pointing out that NBC's own Twitter feed is now tweeting stories that it refuses to broadcast live). However, as Canada-based reporter Mathew Ingram discovered in trying to look up the Olympics Twitter hub, thanks to NBC Universal restrictions, Twitter is geoblocking access. To check it out, I visited the Olympics hub site from the US and saw this: And, then, through the magic of the internet, "transported" myself (or, at least my connection) to Toronto, where I reloaded the page... and saw this: In the end, I'm not really sure it makes a huge difference. To be honest, I'm not sure I quite understand the point of the Olympics "hub" on Twitter, but it's yet another way in which NBC Universal seems focused on restricting access, rather than enabling access. It's 20th century thinking for a company that is in desperate need of 21st century leadership.

The Paul Chambers case has made plenty of news over the past few years since he was charged for tweeting a silly statement concerning closures at his local airport, Robin Hood Airport, at which he was supposed to take a flight the following week. The now famous tweet read:

"Robin Hood airport is closed. You've got a week and a bit to get your shit together, otherwise I'm blowing the airport sky high!!"

No one who saw it felt it was a credible threat. The 600 friends who follow Chambers on Twitter didn't think anything of it. Six days later, someone at the airport found it while doing a regular Twitter search. Their conclusion, again, was that it was not a credible threat, but it was passed on to to the Ministry of Defense, and then to airport police, and then to a local police station. At each step of the way (until the final one), none of the people who saw it seemed to believe it was a credible threat, at all. And yet... the local police went after him anyway, roping the government into bringing charges.

Amazingly, to many of us, Chambers lost most of the early rounds, as the courts made twisted rationales for why he somehow "knew" this tweet would cause distress (even as they failed to show anyone actually distressed). However, it appears something has clicked with some courts in the UK on these issues. Chambers has now been acquitted. The full ruling (pdf and embedded below) is a worthwhile read. It starts out by laying out the timeline of events:

There was no evidence before the Crown Court to suggest that any of the followers of the appellant’s “tweet”, or indeed anyone else who may have seen the “tweet” posted on the appellant’s time line, found it to be of a menacing character or, at a time when the threat of terrorism is real, even minimally alarming. In fact nothing was done about it by anyone until 11 January 2010, some five days later when the duty manager responsible for security at Robin Hood Airport, while off duty at home, found it. Mr Duffield did not see this “tweet” on the appellant’s time line, and it was never sent to him or to the airport. Rather he was at home searching generally for any “tweets” which referred to Robin Hood Airport. In cross examination he said that he did not know whether the “tweet” was a joke or not, but as even a joke could cause major disruption it had to be investigated. Accordingly he referred the “tweet” to his manager, Mr Armson. Mr Armson was responsible for deciding whether any perceived threat to the airport should be graded as “credible” or “non-credible”. If “credible”, it was to be referred immediately to the Ministry of Defence, but if “noncredible”, as a matter of standard practice it was to be reported to the airport police. Mr Armson examined the appellant’s “tweet”. He regarded it as “non-credible”, not least because it featured the appellant’s name and, as he noted, the appellant was due to fly from the airport in the near future. Nevertheless in accordance with airport procedure he passed this “tweet” to the airport police. The airport police themselves took no action, presumably for exactly the same reason, but they decided to refer the matter on to the South Yorkshire police.

Basically, lots and lots of people saw the tweet and no one thought anything of it until a local police station decided to make an example of the guy. Even the South Yorkshire police didn't find the tweet credible -- until someone decided to arrest the guy. While the lower courts came up with all sorts of twisted rationales to support this, the High Court actually took something of a common sense approach:

We are of course well aware that the Crown Court concluded, as a matter of fact, that the message sent by the appellant was of a menacing character. Proper respect must be paid to such a finding. However, the findings do not address the unbroken pattern of evidence to be derived from the responses of those who read or must have read the message before the South Yorkshire Police investigated it. No weight appears to have been given to the lack of urgency which characterised the approach of the authorities to this problem, while the fact that those responsible for security at the airport decided to report it at all, which was treated as a significant feature, rather overlooked that this represented compliance with their duties rather than their alarmed response to the message.

It's crazy that it had to go this far before common sense came into play, but I guess it's better late than never.

As the fight over whether or not the US can even charge Megaupload under criminal law continues, the US Justice Department continues to make quite extraordinary claims. If you don't recall, the US filed criminal charges against Megaupload and a bunch of its execs. However, as a US judge noted back in April, under US law it might actually be impossible for the case against Megaupload to proceed, because criminal law requires "serving" the defendant, and the law also says you can only serve companies at their US address. Megaupload is not based in the US and has no US address. The DOJ is trying to tapdance around what the law actually says, but (as Megaupload points out) they can't point to a single real legal citation that supports their position. The DOJ is basically arguing that the law should be what they want it to be... because otherwise the DOJ wouldn't like it very much.

Tim Lee continues his always excellent reporting, by providing some details of the latest court hearings on the matter where the judge definitely seems to recognize that Megaupload may be legally correct:

[Judge O'Grady] noted that the "plain language" of the law required sending notice to the company's address in the United States. "You don't have a location in the United States to mail it to," he said. "It's never had an address" in the United States.

Perhaps even more interesting is the claim by the DOJ that even if the Judge rules against them on this issue, they should still be able to freeze Megaupload's assets, because the cases against the individuals will continue.

Not only that, but the government believes it can continue to freeze Megaupload's assets and paralyze its operations even if the judge grants the motion to dismiss. That's because in the government's view, the assets are the proceeds of criminal activity and the prosecution against founder Kim Dotcom will still be pending. The fact that the assets are in the name of Megaupload rather than its founder is of no consequence, the government claimed.

That's a trickier argument to make, though, not a totally crazy one. It's more or less based on the same controversial theory under which the Justice Department seizes and forfeits things like hip hop blogs because someone might possibly get some infringing music from them. But here it's even more complex, because there is supposed to be a separation between the corporation as an entity and the execs who work there as entities. It's part of the reason why "limited liability" corporations exist. There are, of course, ways to get past that, but the government would need to make that case, and they may have a hard time doing so. Either way, it does appear that they're legitimately worried about this rather massive error on their part in bringing the case.

Perhaps, next time, the DOJ won't rush into highly questionable lawsuits just because the MPAA is upset about a website.

Following Torrentfreak's publication of a slide from a confidential RIAA presentation, they've now released another damning slide, showing (among other things) that the RIAA did not think that SOPA/PIPA would be effective in stopping music infringement: Of course, they also insist that the opposition was "activated by Google," which is flat out untrue, even though I know the RIAA folks believe it (I had a conversation with an RIAA person a few months ago, and nothing would shake his absolute conviction that the whole thing was a Google plot).

To be honest, this "confession" is not a huge surprise. While many people often lump the MPAA and RIAA together, SOPA/PIPA was almost entirely driven by the MPAA. The RIAA basically did the least amount required to officially show its support for the bill -- but all of the pushing for the bill was done by the MPAA. I had wondered if it was just a sign that the RIAA is simply running out of steam as its main members are dwindling, but now it seems clear that even they realized SOPA/PIPA was not an effective plan. Of course, when we explained why SOPA/PIPA wouldn't have been effective, supporters claimed we were behind a misinformation campaign. I guess the RIAA was a part of that campaign as well, huh?

But, perhaps even more interesting was another tidbit later in the TorrentFreak post, concerning how the RIAA views the six strikes plan. For some background, while various "three strikes" plans around the globe are focused on taking away internet connections after accumulating three "strikes" (based on accusations, not convictions), when the "voluntary" (with a big shove from the government) plan was put in place, part of the messaging was that disconnection was not an option.

However, according to the presentation, it appears that the RIAA has a backdoor plan to put in place a disconnection regime. Basically, they're noting (accurately) that the DMCA already requires that service providers who wish to retain safe harbors have a "termination policy" in place. That's true. But here's the sneaky part: the RIAA is ready to insist that a reasonable termination plan under the DMCA would require an ISP to terminate a user once they get to those six strikes. In other words, the plan doesn't require termination -- which was necessary from a PR standpoint -- but the RIAA is going to claim that the law already requires it. Sneaky, sneaky:

Some ISPs do indeed threaten to disconnect users for infringement based on a TOS violation. However, Sheckler says that the responsibilities of Internet companies go further and as carriers they are governed by legislation.

In order for ISPs to be eligible for safe harbor provision under the DMCA, she writes, they are required to have a “termination policy for repeat infringers” under “appropriate circumstances.”

So, although account disconnections aren’t specifically included in the list of “six strikes” mitigation measures agreed in the Memorandum of Understanding, the RIAA is clearly aware that if they’ve issued infringement notices against an account holder six times, then that user has a good chance of being viewed as a “repeat infringer” by their ISP – at least if prompted to do so by the RIAA.

This is the RIAA I'm used to. Using misdirection and sneaky language to get what it wants while claiming otherwise publicly.

For what it's worth, we've heard that some of the reasons for the delays in launching the six strikes plan has to do with the ISPs pushing back on RIAA/MPAA desire for disconnections to occur. I don't know how accurate that is, but it would fit with what's stated above -- and certainly suggests we haven't seen the last of this. If anything, it sounds like a lawsuit may eventually have to be filed to see if the RIAA can effectively force an ISP to terminate accounts over the six strikes plan...

Over the last few days there's been something of a firestorm of people claiming that Skype was letting police listen in on your calls. We had been among those who noted that Skype was, at the very least, no longer willing to make clear statements about whether the service was able to be wire-tapped. Skype to Skype calls are a direct person-to-person connection (rather than through a central server), so most people thought that they were not particularly tappable. That's not quite true. And, of course, if you use Skype as part of a phone call to or from a regular phone line, those calls would be tappable via traditional phone wiretaps.

The "Skype may be letting law enforcement listen in on your calls" furor took off in the following few days. The Washington Post reported that Skype was making it easier for law enforcement to get text chat and user data. It's not actually clear that this is true either (but more on that later). It then kicked into high gear, when Eric Jackson at Forbes (whom we've written about before for his bizarrely uninformed take on the Yahoo/Facebook patent fight and those who reported on it) wrote a ridiculously ignorant post claiming that Microsoft can listen in on all his Skype calls, based off an incredible misreading of the original post about Skype's refusal to comment directly on the wiretapping abilities.

Jackson's more level-headed colleague, Kash Hill, pushed back on Jackson's claims, but also noted that the law (in the US) is pretty clear that there is no legal requirement for Microsoft to make Skype tappable... but there have been regular efforts made to change that. Hill spoke to legal expert Jennifer Granick who pointed out that just the uncertainty and threat that such legislation might come down the road at some point seemed to be leading companies to make development decisions that left open the possibility of surveillance:

The mere threat of regulation is driving innovation in the direction of backdoors and surveillance compliance. And US law doesn’t require that, yet.

But what's actually happening, since so much of this seems to be conjecture and speculation? Well, as the attention and questions grew, Skype itself weighed in to "clarify." It noted that it has been installing more in-house "supernodes" (in the more distant past, various Skype users would act as supernodes) to improve quality for the directory -- but that Skype to Skype calls (again, not calls that touch the public telephone network) were still encrypted person-to-person calls:

The move to in-house hosting of "supernodes" does not provide for monitoring or recording of calls. "Supernodes" help Skype clients to locate each other so that Skype calls can be made. Simply put, supernodes act as a distributed directory of Skype users. Skype to Skype calls do not flow through our data centres and the "supernodes" are not involved in passing media (audio or video) between Skype clients.

These calls continue to be established directly between participating Skype nodes (clients). In some cases, Skype has added servers to assist in the establishment, management or maintenance of calls; for example, a server is used to notify a client that a new call is being initiated to it and where the full Skype application is not running (e.g. the device is suspended, sleeping or requires notification of the incoming call), or in a group video call, where a server aggregates the media streams (video) from multiple clients and routes this to clients that might not otherwise have enough bandwidth to establish connections to all of the participants.

[....] Skype software autonomously applies encryption to Skype to Skype calls between computers, smartphones and other mobile devices with the capacity to carry a full version of Skype software as it always has done. This has not changed.

But... is there still reason to be somewhat (though not hysterically) concerned? Perhaps. Chris Soghoian has the best post by far on what's known and what's unknown, which explains how Skype's person-to-person encryption may not be as totally untappable as some people assume. He notes that while the Skype to Skype calls are encrypted, Skype has access to the encryption key (he has a full explanation for how/why this is) and then explains what this likely means:

Ok, so Skype has access to users' communications encryption keys (or can enable others to impersonate as Skype users). What does this mean for the confidentiality of Skype calls? Skype may in fact be telling the truth when it tells journalists that it does not provide CALEA-style wiretap capabilities to governments. It may not need to. If governments can intercept and record the encrypted communications of users (via assistance provided by Internet Service Providers), and have the encryption keys used by both ends of the conversation -- or can impersonate Skype users and perform man in the middle attacks on their conversations, then they can decrypt the voice communications without any further assistance from Skype.

So there's a risk there, and Soghoian notes that Skype's reticence to set the record straight on exactly how it handles encryption leaves open this possibility. That is it's entirely possible that there are ways that law enforcement can intercept Skype calls, while Skype can still talk about its encryption, leaving the false impression that the calls are immune from interception. Soghoian also notes that the talk about Skype handing over info (not call access) to law enforcement is not new and has been known for quite some time (and, honestly, doesn't appear all that different from lots of other similar setups).

So, to summarize:

• Skype did make some infrastructure changes recently, which did increase the number of self-hosted supernodes, but those changes likely were to increase the quality of the product, and had little to do with law enforcement/surveillance.
• Skype has always had a program to provide available information to law enforcement if legally required to do so, but appears not to have made any major change to that program in quite some time. That program does not appear to include the ability to listen to calls.
• Skype to phone (or phone to Skype) calls have always been tappable, because they touch the public telephone network, where they can be intercepted.
• Skype to Skype calls remain encrypted, making it more difficult to "tap" them. However, because of the way Skype likely handles encryption keys, this does not mean that governments can't intercept the calls (or impersonate certain parties via Skype).
• In the end, then, it appears that much of this discussion is a whole lot of fuss about nothing particularly new -- but it is worth noting that your Skype calls probably were never quite as secure as you thought they were, even if they're somewhat more secure than some other offerings with little or no encryption and a central server. But if you're looking for 100% secure communications, Skype isn't it -- but that's not because of any change. It's likely always been that way.

If you haven't been keeping up on all the politics of the cybersecurity bill fight over the past few weeks, a new bill was recently introduced that at least had some improvements concerning privacy (though it still had lots of problems). Yesterday, the Senate basically made it clear that they're done with debating the issue, and will bring the new bill to a vote next week. But now the real fight begins: the fight over the amendments on the bill. A whole bunch of amendments have already been proposed, with a second batch expected to be filed on Monday.

Senator McCain is leading the charge with a whole slew of amendments which are designed to delete basically every last bit of privacy protection that is in the bill. Among many, many other things, McCain's amendments would take away the limitation that any information sharing not go directly to the NSA. As we've noted in the past, a lot of this is a turf battle over whether NSA or Homeland Security gets control of the info, and McCain has been "Team NSA's" biggest cheerleader all along. Furthermore, he wants to remove the limitation that the information can only be used for cybersecurity reasons, making the use of the information much, much broader. There are also all sorts of efforts to take away government liability if information is abused. Basically, everything that's useful or good in protecting privacy? McCain and a few other Senators seem to want to take that away.

On the flip side, there are a few good amendments to increase privacy. Senators Al Franken and Rand Paul are pushing an amendment to strengthen the privacy protections. Senator Wyden is pushing an amendment that basically includes his GPS Act, which basically says law enforcement can't track GPS data without a warrant.

Either way, next week is going to be quite a big fight in the Senate, and the "marginally better" Cybersecurity Act may quickly turn into somethinghorribly destructive to your online privacy. If you care about your privacy, now (and all next week) would be a good time to call your Senator and tell them that any attempt to weaken privacy protections is unacceptable, and that they should get behind the proposals to strengthen privacy protections.

A few weeks back, we noted how ridiculous it was that Senator Dianne Feinstein seemed a lot more upset that information about questionable US activities abroad was being leaked than she was about the fact that the US was involved in questionable activities abroad. And, now the Senate Intelligence Committee (of which Feinstein is the chair) has pushed out new rules targeting those who leak information to the press (what most of us call whistleblowing). The Secrecy News blog does a good job highlighting how this seems to be much more about sweeping bad activities under the rug and blaming whistleblowers, rather than actually stopping bad behavior by government:

In an earlier generation of intelligence oversight, leaks led to leak investigations in executive agencies, but they also prompted substantive oversight in Congress.  When Seymour Hersh and the New York Times famously reported on unlawful domestic surveillance in December 1974, the urgent question in Congress was not how did Hersh find out, or how similar disclosures could be prevented, but what to do about the alarming facts that had been disclosed.

In contrast, while pursuing leaks and leakers, today’s Senate Intelligence Committee has not held an open public hearing for six months. The Committee’s investigative report concerning CIA interrogation practices from ten years (and two presidential terms) ago has still not been issued.  Upon publication — perhaps this fall — it will essentially be a historical document.

Most fundamentally, the Committee’s new draft legislation errs by treating “classification” as a self-validating category — i.e., if it’s classified, it warrants protection by definition — rather than as the flawed administrative instrument that it is.

Effectively, the new rules would make it that much harder for anyone in the intelligence community to blow the whistle if they come across illegal activities by the government. It effectively treats all activity by the government as good and any "leak" as bad, even if it would serve to highlight massive government abuse. That's pretty scary. Not only will it create massive chilling effects for anyone seeking to stop illegal government behavior, but it will actually provide even more cover for the government to ignore the laws.

While we've had plenty of stories about the Olympics being overly aggressive in over protecting its (loosely defined) intellectual property rights, it appears that it's now also targeting both major parties' presidential campaigns. Both Obama and Romney apparently launched commercials recently with "Olympic Themes." The Olympics then called out the Obama Super PAC campaign for supposedly infringing on its copyright. The International Olympic Committee (IOC) claims that it does not allow footage to be used for political purposes, though I do wonder how it deals with cases of fair use (which this may or may not be). Either way, soon after that a Romney ad that also had an Olympics theme (both ads used footage of Romney in his role as CEO of the Olympic Organizing Committee for the Salt Lake City Olympics a decade ago) went offline as well.

One would hope that -- yet again -- these stories get the campaigns interested in the ways in which copyright law can restrict certain forms of speech. No matter who you support for President, the idea that neither major candidate can reference the Olympics seems absurd. Yes, the Olympics doesn't want to be associated with politics (for obvious reasons), but that's a moral rights issue, and in the US, such moral rights don't apply to (most) forms of copyright (and definitely don't apply in this case). What's left, then, is that the two campaigns are limited in their ability to express themselves freely. That seems like a serious issue, but one which it's likely the two campaigns will mostly (unfortunately) ignore.

Lots of people have discussed this in the past, but the RIAA's focus on going after file sharing sites and online cyber lockers seemed to ignore the fact that so much music is actually shared on a person to person basis -- rather than online. But, there weren't any public numbers that showed the relative difference... until now. Torrentfreak got their hands on a "confidential" presentation put together for the RIAA by NPD, which shows pretty clearly that most of the "unpaid" music that people get comes from person to person copying, via hard drive trading and burning/ripping from others. P2P and cyberlockers actually make up a relatively small percentage: To be fair, I've found NPD's numbers to be suspect in the past, but they are one of the RIAA's favorite vendors for this kind of data. So, if even they're showing that online file sharing is relatively small, then that's at least noteworthy. The fact that this information had been kept "confidential" certainly suggests that the RIAA knows this highlights how all of their freaking out over online access to unauthorized content is exaggerated, and that people can and will find plenty of other ways to share.

One hopes that this doesn't presage more attacks on such person to person sharing either, but I wouldn't bet on it. Remember, we're talking about an industry which has regularly sought to plug the analog hole. When we see proposals in Congress that would effectively allow Customs officials to start searching hard drives and MP3 players, you have to wonder if the entertainment industry is really gearing up to go after this kind of sharing as well.

Of course, what would be much nicer (and a hell of a lot more effective) is if they finally woke up to the fact that this is a reality -- and that there are ways to deal with it on the product and business model sides, rather than on the enforcement side. If they put one-tenth the effort into helping out with that as they do for pushing for greater enforcement, the online music landscape would look so incredibly different and would be so much better for everyone.

One of the oddities concerning the Megaupload shutdown and indictment was the fact that the company had named famed producer (and husband to recording star Alicia Keys) Swizz Beatz as CEO just a few months prior. Beatz is extremely well known in the industry, and widely respected. After the shut down artists like Diddy and Busta Rhymes immediately spoke out in support of both Megaupload and Beatz. Beatz wasn't named in the lawsuit, but recent filings in the case have the US Justice Department noting that Beatz has not been cooperative with their lawsuit, suggesting he may get dragged unwillingly into the fight.

We wrote about an interview with him a few months ago, where he talked about how greed from the labels explained their unwillingness to embrace new technology. In a new interview, as pointed out by TorrentFreak, Beatz is going even further and defending Megaupload. He touches on a variety of issues, but notes that the company was offering a system (not unlike BitTorrent's new offering) whereby artists could offer their work for free, paid for by ads... with 90% of the money going to the artist (more or less the flipped ratio of a traditional record deal). He repeatedly notes how many friends he has in the music world, and how it would be ridiculous for him to piss them all off by "robbing" from them. Some have raised questions about Beatz's claims -- and he's mostly refused to give any specifics while the lawsuit is ongoing -- but no one can deny his widespread influence and respect in the industry. Furthermore, he highlights the new business models and how they represent an opportunity.

It's something of a truism that the courts take time to catch up with technology, especially in the fast-moving world of the Internet, but Thomas Steen points us to a recent court decision in Norway where the gulf between law and life is particularly wide. The case concerns a blogger called Eivind Berge who was arrested recently on account of some statements on his blog that allegedly "glorified and encouraged the killing of policemen" as a report on the Dagbladet newspaper site puts it (Norwegian original.) Moreover:

Berge also wrote that he "planned" to attack a policeman with a knife on a Saturday evening at Torgallmenningen in Bergen, and in police questioning, he confirmed that he supports the killing of policemen as a tool in the fight against male feminists.

The Gulating court had to consider whether Berge's writings were criminal under the Norwegian Penal Code, and came to the following, rather surprising, conclusion (Google Translation):

"In the present case we hear of statements the accused has made [on] his "blog" on the internet. This can be read and commented on [by] others, in that they seek and log onto the blog. The Court can not see that this means such a reproduction as the law requires," according to today's ruling.

As the Norwegian journalist Martin Grüner Larsen points out (Google Translate of Norwegian original):

This means in brief that a mass medium that can reach absolutely everyone in the world, which is publicly known, [with] many readers, is searchable by Google and that despite what it says in the ruling does not require authorization by any means, [is] not public.

Indeed, Larsen believes that the ruling as it stands might even apply to any Web site, not just blogs:

Gulating Court of Appeal in short, just know that the expression on the Internet are not public, regardless of deployment size, nature or amount of reading.

The Dagbladet piece says that the police are expected to appeal to Norway's Supreme Court. Assuming that happens, the lower court's ruling seems likely to be overturned, since it is based on an almost complete misunderstanding of how blogs work and Net dissemination takes place.

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The implicit justification for various new copyright enforcement laws, such as the "three strikes" approach, is that they will encourage people to buy more authorized digital goods and thus support artists and their works. Naturally, those in favor of this logic like to produce figures that purport to show that it is working.

Here's another example, based on the claimed results from just one month's operation of a new three strikes law in New Zealand:

In a submission to a government review of the legislation's efficiency, NZ FACT [New Zealand Federation Against Copyright Theft] claimed New Zealanders illegally viewed movies in the top 200 online 110,000 times in August last year -- the month before the new law took effect -- but only 50,000 times in September.

Of course, those figures are unverified, and might well be wide of the mark – note that they were in a submission to a review by the New Zealand government, and not something released publicly. But even accepting them for the moment, it's significant that the same report on the Australian IT News site wrote:

Despite the drop in the first month, NZ FACT noted there had been no "discernible progress" since then.

So we have a drop followed by a plateau. The question is: what happens in the longer term? In Sweden, when the IPRED legislation against unauthorized file sharing was brought in, the Internet traffic for the country dropped by 30%, suggesting that the law had modified users' behaviors considerably. But eight months after that, traffic was back up to the original level, indicating that whatever users had stopped doing in the wake of the new law, they were doing it again -- something confirmed by more recent research. Similarly, an early report claimed that the French three strikes program had already resulted in increased digital sales -- except that was not the only possible explanation, as a previous Techdirt post explored.

This pervasive uncertainty means that one month's figures about supposed drops in unauthorized file sharing are really pretty meaningless. What we need to see is the long-term pattern. And more importantly, if there is indeed a significant, sustained fall in such sharing, we need to see an equally significant, sustained uplift in sales that correlates with that fall. Without that kind of positive effect, demonstrated with rigorous data, three strikes programs are little more than an exercise in vindictiveness.

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