We recently took Jon Taplin to task for his comments insulting Nina Paley's artwork, because he did not agree with her viewpoint that disobeying copyright law for the sake of making new art was a form of "intellectual disobedience." The debate spilled over to Twitter for a while, in which it went a bit all over the map, before Taplin did issue what appears to be a sincere apology, along with a blog post, which he said he hoped would move the debate forward (unfortunately, that blog post contains yet another backhanded slap at Paley's art -- which he calls "what she claims to be art").

That said, since we're always about "moving the debate forward," rather than arguing over old points, we might as well do that -- and Taplin's blog post, does in fact, bring some new things to the debate that are worth discussing. First, though, as a preamble, to those who haven't been a part of "the debate," I might as well catch you up by posting the in-person debate between me and Jonathan that happened a few weeks ago at the Tech Policy Summit (but was only recently posted online). It runs 45 minutes, starting off slow but gets more and more lively as it goes on: Okay. Now that you're caught up, the Taplin's blog post reasonably asks if we're losing our ability to innovate, as we become more focused on the ease of copying as an alternative. It's an appealing thought, but one that I don't believe survives significant scrutiny. However, let's start at the top. Taplin points to an article called Infinite Stupidity by evolutionary biologist Mark Pagel. It makes some very interesting arguments, talking about evolution, and wonders if humans are evolving away from being innovative. The basis of this is as follows:

If I'm living in a population of people, and I can observe those people, and see what they're doing, seeing what innovations they're coming up with, I can choose among the best of those ideas, without having to go through the process of innovation myself. So, for example, if I'm trying to make a better spear, I really have no idea how to make that better spear. But if I notice that somebody else in my society has made a very good spear, I can simply copy him without having to understand why.

What this means is that social learning may have set up a situation in humans where, over the last 200,000 years or so, we have been selected to be very, very good at copying other people, rather than innovating on our own. We like to think we're a highly inventive, innovative species. But social learning means that most of us can make use of what other people do, and not have to invest the time and energy in innovation ourselves.

Now, why wouldn't we want to do that? Why wouldn't we want to innovate on our own? Well, innovation is difficult. It takes time. It takes energy.

The fear then, is that, as a species, we become "docile copiers" rather than innovators. In fact, as he later argues (in the paragraph that Taplin highlights on his blog), Pagel questions if the internet is leading to a situation where "copiers are probably doing better than innovators" because we don't have to innovate to get by. It's an interesting theory from an evolutionary perspective, but not one borne out by economics or history, unfortunately, which have studied this particular issue much more closely. Of course, throughout history there are numerous examples of people insisting that we had reached the pinnacle of innovation and there was nothing more to be done. And every time, they're proven not just wrong, but laughably so.

Innovation may be "hard," but it's also incredibly rewarding. If you want to read a very long, but absolutely fascinating and worthwhile book on the subject, I highly recommend Robert Friedel's awesome A Culture of Improvement, which looks at the last thousand years of innovation to understand why do we innovate. The key finding? That we improve because we see a better way of doing things.

But -- and this is the key point -- the way that you see "a better way of doing things" is not to invent something new from scratch. But to see something -- and, often to copy it and then to improve upon it. We, as a species, are always looking to improve. The argument that Facebook has made people perfectly docile suggests little understanding of what happens on Facebook all the time. Even just looking at Facebook alone, there are constant complaints about how it works, with suggestions on how to make it better. There are still companies launching new and different social networks, believing they can do it better.

Is there some copying going on? Yes, absolutely, but there's no real reason to just copy for the sake of copying. It's only if you can do it better. In fact, as the (also excellent) book by Oded Shenkar, Copycats explained, copying is often a very useful strategic weapon in figuring out how to innovate. What Shenkar's work showed was that there is value in copying, but not merely for copying's sake, but to take what's been done, not to re-invent the wheel, but then to do the incremental improvements on it that can make all the difference in the world.

Going back to Nina Paley. Taplin suggests that her "art" is barely art at all, because she is one of those "docile copiers," and thus not innovating. But this suggests a near total ignorance of Paley's work, an incredibly innovative film, which you can see right here: Is Nina copying? Well, it tells a variation on a classic Indian story, combined with a modern story of the main character's own struggles. It also cleverly weaves in the music of Annette Hanshaw. Is there "copying" going on there? Sure, there are elements of copying, but it's all for the sake of innovating. There is no way to watch that and claim that it is mere "docile copying." Nina had a story to tell, and sought to tell it in a very innovative way. The story had certainly never been told this way. And tons of people have enjoyed the movie because of that innovation. If it were just a copy of "the same old story" people would not have enjoyed it.

And that, really, is what happens all the time. Copying is there -- and it can make people upset -- but it's a key natural resource in the process of innovation. And that's not just a random statement. As the research of many economists have suggested, it is the very nature of copying that leads to economic growth. Why? Because a copy increases the pie. Where once you had "one" copy of the resource, now you have two. And so on. It expands the pie, and makes it more possible to do things, such as innovating.

Caltech professor Carver Mead once talked about how, when things become abundant we have an obligation -- not just a possibility, but an obligation -- to waste that which is abundant. And that is because it creates new opportunities and expands the world and innovation even further. What is more abundant than what can be copied?

So, all of this fear of "docile copying" is, I believe, misplaced. All of that copying is generating the expanding natural resource base for further innovation, as people continue to build on that culture of improvement by saying, "hey, I can do that better." Innovation may be hard, but when the resources are abundant, it cannot be stopped. It is our nature to seek to make things better, and when we share ideas and build and copy on our way to making things better, it is the inevitable progress that we find at the end.

I'm glad that Jonathan brought up this subject and is seeking to move this debate and discussion forward, and I look forward to continuing the back and forth -- hopefully on friendlier terms.

As some folks noticed, a few days ago, I was named to Newsweek's new Digital Power Index. Like all such lists, I take this with a major grain of salt. These kinds of things tend to be somewhat random, and while it's nice to be recognized, in the grand scheme of things it doesn't mean much of anything. However, as Rachel Sklar pointed out soon after it was announced, the list is dominated by men, with just 9 out of 100 people being women. That, of course, is ridiculous, given just how many women are doing amazing things in the digital world. Even if there may be more men in the field right now, there's no way that a 10 to 1 ratio is reasonable or accurate. There is, of course, reasonable concerns about typical gender bias in how these kinds of things are chosen.

One of the members of the list, Andrew Rasiej -- someone I look up to and respect a great deal for the many things he's done -- has written a really good post, in which he has asked to be removed from the list, and nominated Deanna Zandt to take his place. He's also asked the other men on the list to do the same.

I think this is an important discussion -- and it goes beyond just gender. The list is clearly dominated by white American males. We could just as easily point to the lack of Asian members (by my quick count: 4) or black members (by my quick count: 0) or Latino members (by my quick count: 0) on the list -- or any other particular group. As such, I think it's unfortunate in perpetuating the stereotype and as such, I too, have no problem asking to be removed from the list if there is a mechanism to do so. That said, I do have an issue with "nominating a woman in my place." To me, that feels equally paternalistic (for what it's worth, I explained this to Andrew, and he disagrees, strongly, with this position). I would rather that this discussion lead Newsweek to reconsider how it puts such lists together (going beyond just gender, but also ethnic and racial bounds). Simply nominating a woman or someone else in my place doesn't change things -- and certainly can be seen as the equivalent of benevolently "granting" the position to someone, rather than someone earning their place on the list (no matter how much the person might deserve it).

So, rather than specifically nominating a person in place of me, I think that there needs to be a real discussion on why there often seems to be such a lack of diversity in voices around these things: not in meaningless "lists," but in general. The voices of non-American, non-white, non-males are important, but are often being drowned out, and that's something that needs to stop. We don't necessarily do that by "replacing" the white American males, but by understanding how they come to dominate such lists in the first place -- and then tackling that issue.

As you may have heard, when the Supreme Court came out with its ruling on healthcare, CNN and Fox News jumped the gun and incorrectly reported that the Court had struck down the individual mandate. Fox News corrected the mistake pretty quickly. CNN took a bit longer (and spread the false "breaking news" story far and wide). The whole thing even had President Obama confused for a little while.

It was, of course, also great for late night television. People are referring to this as cable news' "Dewey defeats Truman" moment, while others are arguing that "breaking news is broken." Of course, being a part of the "blogging" world which is often accused by "old media" types of publishing untrue things... there is some element of schadenfreude in being able to see it made clear that the mainstream media is often no better at publishing incorrect things. Of course, some tried to flip this around, and suggest that the problem actually came about because of "new media" thinking around things like "process journalism," though there's a strong argument that reporting before reading something isn't process journalism, it's just bad journalism (i.e., process journalism is about reporting things as additional news comes out -- but in this case, the news was out, the problem was people reporting it before reading it).

A few years ago, uber-blogger Mike Arrington said something that has quite a lot of truth to it: to get attention as an online media player, you generally have to be first, funny or insightful -- and being first is often the easiest, so lots of people concentrate on that. It's the chase for "the scoop." Being funny is powerful, but very, very difficult. And... being insightful takes a lot of time and effort, and is no guarantee of attention. Generally speaking, our goal here has never been to be first with news (in fact, we often wait for others to publish so that we can link to their reports in what we write up). Personally, I like that much better. Focusing just on "the scoop" may be good for traffic in the short term, but especially for big stories like this one, I'm not sure how much value it creates in the long term.

Of course, the realities of gaining traffic often support the quick "scoop" over deeper insight. For example, Reddit -- a potential major firehose of traffic these days -- has its algorithm designed to reward quick, early votes, meaning that longer, thoughtful, insightful pieces almost have no chance, because by the time people have read and thought through them, it's "too late" to have the votes really count.

Some will argue, of course, that this is just a sign of the "bad" side of the internet: valuing quick, dirty and sometimes wrong reporting over longer, more thoughtful work. But I'm not convinced that's true. Again, there are plenty of historical examples of this in pre-internet times as well -- with Dewey Beats Truman being just one of many such examples.

Instead of just mocking those who messed up, or using a bit of confirmation bias to insist that it shows how awful things are in this "real time era," I'd be much more interested to see if we could have a discussion on how to change the incentives. How do we better reward insight and thoughtful commentary over the quick hit-scoop? Is it possible? And, if so, what needs to be done?

Analyzing baseball statistics turned into a huge field called sabermetrics. A long time ago, geeks were weird people who performed strange stunts like biting the heads off chickens. But geeks nowadays are gathering stats on just about everything, so here are just a few meaty figures to chew on.

• The Big Mac serves as an interesting economic tool -- providing a global standard for comparing national currencies and economic activity. Analyzing the Big Mac consumption per country can show interesting trends in wages and how economies reacted to the Great Recession -- although not every country sells Big Macs. [url]
• The price of a Big Mac jumped 26% in Argentina because the government of Argentina was playing around with its national inflation numbers -- and pressuring McD's to keep its prices low. If Big Macs didn't lose their freshness, there might have been an arbitrage opportunity.... [url]
• The number two burger chain in the US (for 2011) goes to Wendy's -- as Wendy's US sales topped $8.5 billion and Burger King trailed at $8.4 billion. McDonald's crushed both of them with $34 billion in sales last year. [url]
• The US consumed almost 38 million tons of meat in 2007 (at 125.4 kg per person), but Luxembourg is the country with the highest meat consumption per capita (136.5 kg per person). Obviously, population figures into Luxembourg's bragging rights -- and likewise China's population makes its consumption of 54.1kg of meat per person an impressive total of around 77 million tons. [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.

The folks at Demand Progress today filed a brief in one part of the ongoing Megaupload case: the fight over users being able to get their files back. The DOJ is trying to block this, while also wanting the evidence destroyed. The MPAA says it is okay with data being returned... if there is a 100% guarantee that no infringing works are accessed (an impossibly high standard). The Demand Progress filing points out that this whole thing flies in the face of being innocent until proven guilty, and argues that users who are non-parties to the lawsuit should have access to their files.

Related to this, Demand Progress has also put together a petition, asking people to sign on to support a user's right to his or her own files -- and against the government just magically taking files out of the cloud:

One day after the Internet staged a massive blackout to protest Congress's Internet censorship legislation (SOPA/PIPA), the United States responded by seizing millions of ordinary user files hosted on the popular website Megaupload.com.

With an aim of shutting down Megaupload and other Cloud-based hosting services (like Dropbox, YouTube or even your email provider), the government is trying to claim website operators should face decades in prison for the misdeeds of some of their users. But while they pursue trumped up criminal charges against the companies' founders, they are shutting down dozens of websites, and leaving ordinary Internet users without any way of retrieving their files.

Apple co-founder Steve Wozniak called the case against Megaupload a "threat to innovation." Wozniak likened the Megaupload site to a highway and those who shared pirated movies and songs to speeding motorists. "You don't just shut down the whole street because somebody is speeding," he said.

Numerous laws on the books already give copyright holders plenty of avenues to stop actual infringement, but that's not enough to satisfy Hollywood's lawyers and lobbyists. The prosecutor in the case, Neil MacBride, previously served as the Anti-Piracy Vice President of the Business Software Alliance, where he represented the intellectual property interests of countless multinational corporations.

Now Hollywood's lobbyists, represented by the Motion Picture Association of America, want him to make it nearly impossible for ordinary Internet users to get their property back.

As I write this, the petition appears to have just short of 50,000 signatures, and the number is increasing rapidly... The Internet vs. Hollywood

So much for "transparency." While the USTR continues to talk up its faux transparency as if it's real transparency, the truth is always going to come out. Earlier this week, we wrote about how Rep. Darrell Issa had asked the USTR if he could come and observe the next round of TPP negotiations, taking place next week in San Diego. The USTR took all of two days to reject such a request, showing that it's not at all interested in any sort of actual transparency with the Congress who is supposed to oversee issues of international commerce. The USTR told Issa he could only attend the "public" portions, like anyone else. In response, Issa put out the following statement:

“The U.S. Trade Representative has once again chosen to block Congress from observing negotiations for this vital trade agreement over which the House and Senate have fundamental constitutional responsibility.

“The TPP process should be transparent and open to oversight, not a secretive backroom negotiation. TPP agreements impact multiple sectors of the American economy--especially our ability to innovate and create new intellectual property, as well as preserve an open Internet.

“Congress has a constitutional duty to oversee trade negotiations and not simply act as a rubber stamp to deals about which they were kept in the dark. While I had hoped the TPP would permit me to observe this round of the negotiation process firsthand, our efforts to open TPP negotiations up to transparency will continue.”

As Techdirt reported in 2010, the passage of the Digital Economy Act was one of the most disgraceful travesties of the UK parliamentary process in recent times; it was badly drafted, hardly revised and then pushed through with almost no debate in the dying moments of the previous government. Since then, two UK ISPs -- BT and TalkTalk -- have challenged the Act in the courts, but lost earlier this year.

This has cleared the way for the UK communications regulator Ofcom to spell out how the 3-strikes system would work by publishing

a draft code for consultation that would require large internet service providers (ISPs) to inform customers of allegations that their internet connection has been used to infringe copyright.

Here's the summary:

The code will initially cover ISPs with more than 400,000 broadband-enabled fixed lines -- currently BT, Everything Everywhere, O2, Sky, TalkTalk Group and Virgin Media. Together these providers account for more than 93% of the retail broadband market in the UK.

The draft code requires ISPs to send letters to customers, at least a month apart, informing them when their account is connected to reports of suspected online copyright infringement.

If a customer receives three letters or more within a 12-month period, anonymous information may be provided on request to copyright owners showing them which infringement reports are linked to that customer’s account. The copyright owner may then seek a court order requiring the ISP to reveal the identity of the customer, with a view to taking legal action for infringement under the Copyright Designs and Patent Act 1988.

A crucial aspect of this approach is how those allegedly infringing on copyright can appeal:

Customers would have the right to challenge any allegation of infringement through an independent appeals body. Ofcom will appoint this body and require it to establish transparent, accessible appeal procedures. Copyright owners will need Ofcom approval of their procedures for gathering evidence of infringement before they can be used under the scheme.

That last point, that the evidence-gathering system employed by copyright owners must be approved by Ofcom, is one welcome change to the first draft of the code, which was put out for comments in May 2010. Indeed, Ofcom has announced that it plans to sponsor the development of a publicly-available standard to help promote "good practice in evidence gathering". This should ensure that at least the IP addresses of alleged infringers are obtained in a reasonably rigorous way.

However, an IP address on its own doesn't identify the person responsible for the alleged infringement -- the use of an open wifi network is an obvious reason why not. This touches on one of only four grounds allowed for appeal (in the original draft, other reasons were permitted, but Ofcom has now narrowed this down "following a direction from the [UK] Government"):

the act constituting the apparent infringement to which a copyright infringement report relates was not done by the subscriber and the subscriber took reasonable steps to prevent other persons infringing copyright by means of the internet access service;

The big question, of course, is what constitutes "reasonable steps": would, for example, WEP-encrypted wifi be enough, even though WEP is now easy to break? Ofcom passes the buck on this one:

we believe it is for the appeals body, not Ofcom, to assess the evidence presented by subscribers and to determine the basis on which it will assess the reasonableness of any steps that the subscriber may have taken to secure its internet access service.

This means a crucial aspect of the Digital Economy Act -- on what grounds people can appeal against allegations of copyright infringement -- is still unclear. And remember that this current code is only about sending out warning letters: we still don't know what might happen after that. Ofcom merely says that any "technical measures" -- like throttling speeds or disconnection -- would require further legislation before they could be considered.

Although far from complete, the current code already imposes an unnecessary burden on ISPs that are merely providing the digital plumbing. Worse, it starts from the assumption that those accused of infringement are guilty, and must prove their innocence in an appeals process – but how on earth do you prove a negative: that you didn't download a file?

What makes this even more deplorable is that the copyright industries still haven't provided any credible, independent evidence that unauthorized file sharing is damaging them. In fact, as Techdirt has shown in its report The Sky is Rising, they are all flourishing. This means that fundamental rights are being harmed, and costs incurred, without justification and probably for no ultimate benefit, since determined downloaders will simply switch to using VPNs or other means. The longer the great Digital Economy Act farce drags on, the more absurd it becomes from every viewpoint.

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We take antibiotics and their ability to kill practically all bacteria for granted. But scientists are increasingly warning that we may be about to leave what might come to be seen as a golden age for anti-bacterial drugs, and enter a post-antibiotic era. As the World Health Organization’s Director-General said, quoted in an article on the Citizen Vox site:

"A post-antibiotic era means, in effect, an end to modern medicine as we know it. Things as common as strep throat or a child’s scratched knee could once again kill."

The problem arises from natural selection. The more we use an antibiotic -- especially if we use it carelessly, failing to complete the full course -- the more we select for bacteria that are partially resistant to it. Over time, those bacteria thrive, displacing bacteria that are unable to withstand the antibiotic. Eventually, bacteria that are completely resistant to that particular drug are likely to evolve -- a situation that can have dire consequences. For example, even five years ago, methicillin-resistant Staphylococcus Aureus (MRSA) was killing more people in the US annually than AIDS.

The obvious way to mitigate this problem is to reduce the use of antibiotics, saving them for truly life-threatening situations, and that's what's happening to a certain extent in Europe:

To preserve the effectiveness of antibiotics for human use, Europe banned feeding antibiotics to livestock for growth promotion in 2006. In Denmark, where such use of antibiotics had been phased out more than a decade ago, drug-resistant pathogens in livestock are down while industry output is up.

As the Citizen Vox article notes, a similar proposal to restrict the use of antibiotics has not gone very far in the US, partly because an alternative approach has found far more favor, for evident reasons:

the Generating Antibiotic Incentives Now, or GAIN, Act has piggybacked into the FDA bill reauthorizing user fees for drug approval. GAIN would provide five more years of monopoly protections for new antibiotics. Already receiving three to seven years of exclusivity, some antibiotics may receive up to 10 years of protection after market approval. This measure defies both the economics and biology of antibiotic resistance.

The reason for that comes down to the nature of patents. Since they are time-limited, their owners have a natural incentive to exploit them as fully as possible during their entire term, when they can charge elevated monopoly prices. For other kinds of patents, that might be regrettable from an economic viewpoint, but it's hardly a matter of life or death. For antibiotics it's more problematic.

The more holders of patents for antibiotics seek to maximize their profits by boosting production and selling them as widely as possible, the more antibiotic resistance is likely to develop -- especially if they are given to livestock as well as humans. That growing resistance is a classic negative externality -- it's not something the pharma company needs to worry about, since the cost will come later and be borne by the general population in the form of increased medical expenses, longer stays in hospital, more serious infections and higher mortality rates.

Antibiotics are perhaps the clearest example of how the interests of patent holders are not only misaligned with those of the public, but are diametrically opposed to them in some cases. Although, in the short term, patents may encourage more antibiotics to be developed, in the long term they undermine their effectiveness. Even more than for drugs in general, antibiotics are an area where we need different kinds of incentives to stimulate development of new drugs -- government-funded prizes, perhaps.

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Today at 11am PT/2pm ET (and 8pm for Rick & Christian) we'll be hosting a live Q&A session with Rick Falkvinge, founder of the first Pirate Party and Christian Engstrom, the first Pirate Party member elected to the European Parliament. As mentioned this is part of the Techdirt Book Club series, and we are discussing their recently published book called The Case for Copyright Reform. The efforts of Christian and others are already having a big impact in the EU Parliament, with the EU Greens already adopting the Pirate Party's position on copyright. We'll be talking about the book, but I believe both Christian and Rick are open to talking about a wide variety of topics.

Well, here's an interesting twist on a common story. We've pointed to lots of examples of companies and public figures using questionable copyright claims to take down content that was critical of them. Now, we've got what appears to be a newspaper hiding behind bogus copyright concerns as an excuse for taking down content that was critical of one of their advertisers. A press release from the Canadian Pirate Party points us to the story of a political cartoonist for the Vancouver Province, who claims a parody video he made criticizing an oil company was taken down from the newspaper's website after the company threatened to pull all its advertising from the newspaper's parent chain.

Dan Murphy, of the Vancouver Province, created an animated parody targeting Enbridge Inc. and the potential environmental impact of its proposed multi-billion-dollar Northern Gateway pipeline proposal that would cross B.C. and Alberta.

...

The original Enbridge video was designed to promote its controversial pipeline project.

Murphy’s animation mocks Enbridge, splashing oily goo on the screen while questioning the oil giant's environmental record.

Murphy told CBC News that he was told Enbridge was outraged that its ad was mocked and put heavy pressure on Postmedia News.

The parody was taken down and Murphy says he was given a blunt message by Vancouver Province editor Wayne Moriarity.

"'If it doesn't come down, Enbridge says they're pulling a million dollars worth of advertising from Postmedia, and if it doesn't come down, I, Wayne Moriarty, I'm going to lose my job,’” Murphy said Moriarity told him.

The editor, however, told a different story, offering vague "copyright issues" as the reason for the takedown. Meanwhile, the advertiser denied almost everything:

Contacted by CBC News, Moriarty would only say copyright issues are involved. Other managers at Postmedia did not return CBC’s phone calls.

Enbridge has released a statement saying it did not threaten to pull its ads and that it did not ask for the video to be removed.

An Enbridge spokesman did say a conversation took place with Postmedia, but he wouldn't divulge any details about who contacted the newspaper company or what was said other than post media [sic] had apologized for the spoof.

Though it's currently a his-word-against-theirs situation, it's pretty hard to take the statements from the editor and the advertiser at face value. As the cartoonist mentions, he is putting his career on the line to speak out about this, and knows he may end up in hot water with Postmedia—and he has made specific statements about what his editor said to him. If it's a publicity stunt, it's a pretty damn stupid one. Meanwhile, the "copyright" claims are flimsy—especially considering Enbridge says nothing about copyright in their statement. This is most likely just another example of copyright being used as a convenient way to hide real motivations.

Now, it's important to note that this is not an issue of censorship. The newspaper is free to publish and unpublish whatever it wants, and the editor doesn't have to tell anybody why—and, of course, it's up to the reader to look at their decisions and stated reasons then decide whether it's a newspaper they want to pay attention to or trust. The relationship between newspapers and advertisers has long been uneasy, and this isn't the first time an editor has been forced to make a tough choice. Of course, this also isn't really a first for this newspaper chain and its relationship with oil companies: back when it was a part of Canwest (the publishing division of which later spun off into what is now Postmedia), it sparked complaints to advertising standards regulators over a series of paid advertorials about Canada's tar sands that were misleadingly labelled as "Special Information Features".

Maintaining integrity as an advertiser-supported news source is a serious challenge that newspapers have struggled with for decades, and once an editor is stuck in one of these conflicts, there's often no easy way out—except, perhaps, saying something about copyright and hoping that does the trick.

Professor Eric Goldman is quite reasonably worried about a recent ruling in a case the National Assocation of the Deaf brought against Netflix, claiming it was a violation of the Americans with Disabilities Act (ADA) to not have closed captioning. Never mind the fact that this flies in the face of a ton of precedent (none of which is cited). Goldman is reasonably concerned that this could have a massive impact on all kinds of websites:

If websites must comply with the ADA, all hell will break loose. Could YouTube be obligated to close-caption videos on the site? (This case seems to leave that door open.) Could every website using Flash have to redesign their sites for browsers that read the screen? I'm not creative enough to think of all the implications, but I can assure you that ADA plaintiffs' lawyers will have a long checklist of items worth suing over. Big companies may be able to afford the compliance and litigation costs, but the entry costs for new market participants could easily reach prohibitive levels.

The key issue is whether or not a website is a place of public accommodation, which this court ruled it was, despite plenty of other rulings that went the other way:

The most crucial ruling is where the court says that a website qualifies as a "place of public accommodation." The court deviated from--and, incredibly, didn't cite to--a nearly unbroken line of precedent rejecting that conclusion. I don't have a complete roster of cases in this area, but cases that came to mind include Noah v. AOL (a Title II case), Access Now v. Southwest Airlines (an 11th Circuit case), Stern v. Sony, Young v. Facebook and Ouellette v. Viacom. The only plaintiff win in this area is the offbeat National Federation of the Blind v. Target case (which this court did cite), where the court held that Target's obligations to comply with the ADA in its offline retail stores extended to its website. Because of its fact-specific nature, the Target ruling really hasn't had much of an impact on Internet litigation over the past 6 years.

Bypassing all of this precedent, the judge instead relies almost exclusively on the heavily-criticized First Circuit Carparts decision from 1994. The NAD made a crafty venue move suing in a court bound by Carparts. Even so, I wonder how this ruling would fare on appeal to the First Circuit (if Netflix goes that route), and I wonder if judges in other circuits will be persuaded by this judge's ruling.

Of course, some have pointed out in response that this isn't that big of a deal, because of the ADA's "undue hardship" clause, which lets companies avoid accommodating the ADA if it presents an "undue hardship." While that may limit the most egregious cases, it still creates a ton of problems. The "undue hardship" clause is only a defense, and it's judged on a case-by-case basis, where the standards are incredibly vague and it has been described as a high bar to meet. Plus, the entire burden is put on the company (in this case, website), so there will likely be tons of lawsuits against websites until the actual standard for what counts as "undue hardship" is cleared up.

Even more insane in all of this is the one issue that Goldman only briefly alluded to in his piece: the requirement for closed captioning presents a massive potential copyright issue. We've seen people get in trouble for providing subtitles already. So suddenly this creates a damned if you do, damned if you don't situation: provide closed captioning and get sued for copyright infringement, or don't and get sued for ADA violations. Is copyright infringement (and a possible lawsuit?) an "undue hardship?" Who knows.

Of course, the paragraph above points out another issue with this ruling: that this is really an issue for the movie studios, not Netflix. Blaming Netflix is blaming the wrong party. Of course, the judge didn't seem to care about that. When Netflix raised that issue, the judge said that "this argument lacks traction" because the judge has already decided that Netflix is a place of public accommodation, and that's all that matters.

Hopefully Netflix successfully appeals this ruling. Otherwise, we're about to be in for a whole bunch of ADA claims against websites until the "boundaries" are worked out. For lots of small websites, such lawsuits could be extremely expensive and damaging.

So called "cybersecurity" and "intellectual property" are two very different issues, but it seems that politicians are realizing that they get further by screaming about "cybersecurity threats" than about "intellectual property infringement." The latest proposed appropriations bill for the State Department includes a role for a "coordinator for cyber issues" -- which is an awful title. However, snuck into the job description is the fact that this person will have to create a "naughty" list of countries who are "cybersecurity concerns." Okay, fair enough. Except, the bill goes on to define what constitutes a cybersecurity concern, noting that if this person determines that there has been a

"... pattern of incidents of cybercrime against the United States Government or United States persons, or that disrupt United States electronic commerce or otherwise negatively impact the trade or intellectual property interests of the United States....

This seems to suggest that the State Department can now shame entire countries claiming they're a "cybersecurity concern" if the reality is that their copyright enforcement efforts are more lax. With such a broad definition, it seems like just about any country could be blamed if they don't magically somehow stop the "negative impact" of file sharing.

A few years back, IFPI sued Irish ISP Eircom for not waving a magic wand and stopping infringement. It was part of the legacy entertainment industry's strategy to try to force ISPs into kicking people offline under a 3 strikes regime, even if they couldn't get a law to that effect (the two key places where this was tried were in Ireland and Australia). Eircom actually folded and agreed to start kicking its own customers offline on a 3 strikes (accusations, not convictions) approach, as long as the legacy recording industry also pressured its competitors to do the same thing. Of course, once Eircom started, it totally screwed up and sent a bunch of notices to people who were entirely innocent, triggering a governmental review. The end result was that the Irish Data Protection Commission rejected the 3 strikes system, over significant concerns about how it involved spying on customers.

The labels fought back... and have now won. A court has rejected the findings of the Data Protection Commission (DPC) and argued, amazingly, that there are simply no privacy concerns at all with having ISPs track what you do online. Well, that's not quite how the court put it. Instead, it said that there's no privacy questions involved in "the detection and punishment of individuals who engage in unlawful Internet file-sharing." Er... considering the whole issue that kicked this off was false accusations against those who did not engage in such things, it seems the judge is pretty confused. Furthermore, the judge seems to think that there's a way to spy on users, but only track their infringing efforts. The problem -- and the main privacy concern -- is not so much in the tracking of infringing activity, but all of the legitimate activity that gets tracked as well.

Perhaps Justice Peter Charleton should open up his own log files to the public so that we can see if he's infringing. There is, according to his version of things, no privacy violations there, because we all promise only to make sure he's not breaking copyright law.

Update: The blog has been taken down, but a Google cache remains.

We just wrote about the extremely troubling ruling in the UK that has left Anton Vickerman, the operator of the TV linking website SurfTheChannel, facing up to ten years in jail. The charge is the rather ambiguous "conspiracy to defraud", which is not surprising, because it's still not clear what STC did that was actually illegal—it certainly wasn't copyright infringement, since similar sites in the UK have been found to be non-infringing in the past. These websites don't host any pirated content, they only index links to videos on other sites—and there's no evidence that their operators assisted in the uploading of that third-party content. At worst, it can be argued that they were somehow implicitly encouraging their users to upload infringing content and submit the links, which is why "conspiracy to defraud" is just about the only charge that could stick. The UK has a notoriously low bar for conspiracy charges, which can be used to go after people who have gotten on someone's nerves without really breaking any laws, and this has been the subject of controversy for some time.

But, even when it comes to the conspiracy charge, there are some serious questions that need to be answered—especially after a look at this collection of notes from the trial posted by an anonymous blogger. I'm taking this information with a grain of salt, because the source is unidentified, and it also can't be ignored that the notes are one-sided and focus on flaws in the prosecution's case—so there may well be another significant side to the story. But there is also enough specific information about the case that it seems unlikely that the notes are fake, and some of the things that happened look very bad no matter what other evidence was presented.

First, there are several things the judge did that are concerning:

• Judge leaves jury little choice after directing as a matter of law that knowingly linking to infringing content is illegal despite no such offence in the UK;
• Judge ignores SportsRadar High Court judgement that states if an infringement takes place it takes place in the country the server is based (linking to infringing content legal in Spain where SurfTheChannel was based);
• Judge states "if I have got the law wrong then a higher court than this one will sort it out";

What the entertainment industry has wanted all along is for linking to content to simply be illegal, so they twist around interpretations of various laws to try to make it so. From the sound of it, the judge let that happen to some degree, despite precedent to the contrary. The notes then go on to detail the activities of FACT, the Hollywood-backed private group that independently investigated Vickerman (without police knowledge) then helped set up the raid on his offices. Their investigation included posing as potential home buyers to gain access to his house, and telling service providers (like his ISP) that he was selling counterfeit DVDs to get them to share information about him. There was even a bizarre dispute about whether or not Vickerman was wearing a false beard at some point, but the details are unclear, and the FACT agent claimed in court to have lost the log book about the incident. FACT also admitted that it conducts about 15 of these surveillance operations a month. Other statements made by FACT reveal that it was extremely sloppy in its evidence gathering methods, and that it had a clear goal of shutting down STC regardless of legal authority:

• FACT Ltd staff admit to attending raid on Vickerman's address with USB stick that contains a replacement home page to be placed on SurfTheChannel website that states “This website is under investigation” despite having no legal authority to do so and in contravention of the Computer Misuse Act 1990;
• FACT Ltd contractor Ben Clelland admits to copying all case evidence from Vickerman’s computer to a USB drive, putting USB drive in pocket and leaving house without alerting Police that this evidence existed or bagging and tagging it. All forensic evidence in case emanates from this USB drive.
• FACT Ltd contractor Ben Clelland admits to “making a mistake” by not attaching a write blocker to his examination computer before examining USB drive data. All file creation dates on evidence are changed.

I don't know the details of UK procedure, but it sounds like there should be serious questions about the admissibility of that evidence. The other component of FACT's case was their star witness, Brendan DeBeasi, who had been involved with STC in the past and admitted offering to bring the site "to its knees" for the highest bidder. DeBeasi faces charges in the U.S., and testified in exchange for immunity and more:

• DeBeasi says he is not tailoring his evidence to help FACT despite admitting that his immunity deal in the US is dependent on him “performing well” in the Vickerman prosecution;
• DeBeasi admits MPAA offered him a job not long after he agreed to cooperate in prosecution of Vickermans;

A representative of the MPAA also testified, revealing that he posed as a potential STC investor to gain access to Vickerman. Then, some interesting facts about the MPAA's broader strategy were revealed. It turns out that STC had commercial deals with some networks, including A&E and Discovery, but those partners withdrew before the charges were brought—allegedly under targeted pressure from the MPAA:

• Defence accuses the MPAA of arranging commercially damaging news stories containing false information about STC in an attempt to isolate it as a “piracy site” so that its commercial partnerships with TV networks such as Discovery Channel, A&E Television Networks and others are destroyed;
• [MPAA representative] Pascal Hetzscholdt admits that senior MPAA personnel including John Malcolm contacted NBCUniversal to pressure them into terminating A&E Television Networks partnership agreement with SurfTheChannel;

The notes also highlight several serious errors on behalf of FACT's lawyer throughout the trial. Most notably, the prosecution repeatedly presented digital forensic evidence that was clearly flawed and in some cases seemingly presented in a very selective way to paint a picture of guilt. Though FACT did back down on some of these instances, it casts a lot of doubt on their approach to building a case:

• [FACT Prosecutor David] Groome opened case by saying that the Chinese websites linked to by STC are “run by Chinese Gangsters”, “obviously and completely illegal” and “owned by thugs” amongst other things. Anton Vickerman accuses him of misleading the jury when he presents evidence that the sites referred to (Youku & Tudou) are listed on the New York Stock Exchange and that another (56.com) is funded by the Venture Capital arm of FACT Director Walt Disney Studios. Vickerman also presents evidence that many of FACT's directors have partnership deals with these so called “Chinese Gangsters”;
• Groome tells jury that there were many many movie files found on Vickerman's computers and that he was uploading them to third party websites before linking to them from STC. This is again proven false when the defence shows that there is only 1 movie file found on any of Vickerman's computers and the other handful of video files are for TV shows all of which were downloaded for personal use. The defence also shows that there is not one shred of evidence that any uploading took place from Vickerman's computers despite 3 separate teams of forensic investigators inspecting the computers;
• Groome tells jury that Vickerman saved specific forum posts and private messages to his computer that talk about uploading and other controversial topics. Vickerman accuses Groome of again misleading the jury by showing that the posts they have exhibited are extracted from a backup of the forum which contained 91,000 posts which he had only seen a tiny amount when browsing the forum from day to day. Groome tells the jury that a spread sheet produced by the prosecution proves that links to movies were added to the STC site by Vickerman from his computer. When Vickerman says that is not true Groome tells him that he is therefore calling FACT witness Andrew Smith a liar. Vickerman then points out that the spread sheet is an extract created by Smith of a backup from the STC database that shows list of links to movies added to the STC database by those users. Not Vickerman adding the links from his computer. Groome eventually agrees.
• Groome ambushes Vickerman with a printout of a forum post and accuses him of running a server that staff uploaded material to which was then streamed to STC's users. Vickerman flatly denies this and explains that he is getting confused and that STC used a complicated system for hiding its links from its rivals. The next day Vickerman accuses Groome of misleading the jury again by printing out only the first page of the forum post when the third page actually shows that the forum thread is regarding the link hiding system not the hosting/streaming of content by STC.

Vickerman himself raised some damning points as well, including something that sounds a lot more like a genuine "conspiracy"—evidence of infringing links being added to the site by anti-piracy groups themselves:

• Vickerman explains that SurfTheChannel's then number one rival, BlinkX.com, has commercial partnerships with every one of FACT's directors despite BlinkX.com having the exact same links that FACT is using as evidence of illegality in this case;
• Vickerman provides unchallenged evidence that Anti-Piracy companies, in particular Aiplex Software, are responsible for automated adding of around a million links to the STC website.

(Interestingly, BlinkX.com—once a well-known pirated TV destination—seems to have been recently scrubbed of most infringing links.)

Again, it's entirely possible that there are errors and omissions in these notes—but the points of concern really are piling up. It seems insane that Vickerman faces ten years in jail for actions taken primarily, and perhaps entirely, by the users of his website and not by him. In court he noted that he researched the law and received advice that merely linking to infringing material was entirely legal—and from the many apparent flaws in the evidence showing that he participated in uploading, it looks like he was careful to ensure that he didn't cross that line. Some will call this exploiting a legal loophole, but it's not a loophole—it's a vital safety valve on copyright, a law that already flirts dangerously with curtailing freedom of speech. It is not illegal to merely point to something in the internet. The real legal loophole is the charge of "conspiracy to defraud"—a seemingly magic way to create a general sense of wrongdoing where no lucid laws have been broken.