What an extraordinary year this has been for Net activism. After the great SOPA blackout led to SOPA and PIPA being withdrawn, and the anti-ACTA street demonstrations triggered a complete rethink by the European Parliament that may well result in a rejection of the treaty, now it seems that the Trans Pacific Partnership is falling to pieces.

Foreign Policy magazine, for example, has a feature entitled Is the Trans-Pacific Partnership Foundering?, where its author explains that a number of the smaller countries participating in the negotiations are starting to ask themselves whether there are any advantages in joining at all:

Of even more concern, however , is the sudden questioning by the Chileans of the value of the deal as presently being constituted. Chile had been considered a slam dunk supporter. So its raising of questions is a red flag danger signal. Beyond that it seems that the Malaysians are also questioning whether any benefits they may be getting are worth the trouble of further liberalization of their domestic economy. And just to put the icing on the cake, it is becoming ever clearer that the Vietnamese, whose economy resembles that of China with large segments controlled by state owned companies, are going to have great difficulty in actually meeting the high standards being proposed.

As Techdirt has reported, TPP has been negotiated in the utmost secrecy, but now that word is finally leaking out about its provisions, there is resistance building in the US:

Although the deal, known as the Trans-Pacific Partnership, has received relatively little media attention in the United States, it has sparked international friction among consumer groups and environmental activists who worry that terms demanded by the Obama administration will eliminate important public protections. Domestically, however, the deal's primary source of political tension is from a portion that could ban "Buy American" provisions -- a restriction that opponents emphasize would crimp U.S. jobs.

That seems like a pretty significant issue. After all, one of the supposed aims of the trade agreement is to remove such internal barriers to trade for all signatories. But in an election year, President Obama will hardly want to be painted as someone who is sacrificing American jobs.

Even assuming this major contradiction is resolved somehow, and the other Pacific Rim countries don't decide to abandon the treaty altogether, TPP is still fundamentally flawed for the same reason that ACTA is flawed: China is not a signatory. And the idea that once TPP (or ACTA) is in place, China will suddenly rush to sign up is extremely unlikely, for reasons that Arvind Subramanian, an expert in Chinese economic policy, explains:

"China would never agree to just fall in line with rules in the negotiations of which it has not participated," he writes in a policy brief.

If China did agree to participate in the talks, it would have huge bargaining leverage. Better to have multilateral talks where China’s power is diluted by the addition of Brazil, Europe, India and others to the talks.

A third possibility is that China comes to view the TPP as a hostile effort to "encircle" China economically. "TPP could thus provoke China into playing the regionalism game in a way that could fundamentally fragment the trading system," he writes.

However you look at it, TPP seems to be in serious trouble. Coupled with the withdrawal of SOPA, and the possible rejection of ACTA, this represents a string of setbacks for copyright and patent maximalism that a year ago would have seemed impossible.

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Of all the big patent fights going on these days over mobile phones/tablets, the highest profile has almost certainly been the battle between Apple and Samsung. But, in case you haven't been paying attention to all the lawsuits flying back and forth, in the past year it appears that there have been at least 50 lawsuits filed in ten countries around the world -- in just over a year. And to think, all of that money could have been spent on actually innovating. What a waste. Apple's Tim Cook is apparently claiming that he'd prefer to settle -- and the two sides are getting together in a few weeks to see what they can work out -- but also said:

"But it's important that Apple not become the developer for the world. We need people to invent their own stuff."

That's nice... but it ignores the fact that nearly every cool thing in the iPhone wasn't invented by Apple. Instead, Apple just did a nice job putting it together and bringing it to the market in a shiny package. We shouldn't deny how important that step is -- it's really much more important than most people are willing to admit. But, it's a shame that Cook would then go around repeating the myth that Apple "invented" the features that made the iPhone and iPad so popular. To complain that others need to "invent their own stuff" ignores how little of its own "stuff" Apple actually "invented."

There's a sucker born every minute -- if you like to believe unverifiable statistics. Usually, if it's too good to be true, it ain't true. But as technology gets better, sometimes it's hard to distinguish sufficiently advanced algorithms from magic. Here are a few scams that successfully fooled some folks for a while.

• A stock-picking robot named Marl convinced thousands of investors that it could identify penny stocks that were about to soar in price. The SEC is looking to impose a fine and force the creators of Marl to repay their duped investors... but with claims on a website like: "The longer Marl is allowed to run on a computer … The More Advanced He Becomes!" How could anyone go wrong? [url]
• Penn and Teller don't usually do pranks, but when it comes to tricking Nobel prize laureate, Arno Penzias, they apparently make exceptions. Creating a fake computer with voice recognition in the late 1980s fooled this brilliant physicist, but nowadays Apple's Siri is in TV ads all the time doing nearly the same routine. [url]
• Baron Wolfgang von Kempelen built a mechanical chess-playing machine (shaped like a Turk...) that gained widespread fame in 1769. This mechanical turk was actually controlled by a hidden human being, but only a few hundred years later, we actually could build a chess playing robot with grandmaster skills. [url]
• To discover more interesting AI-related content, check out what's currently floating around the StumbleUpon universe. [url]  

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

You may recall a few weeks back, we had a guest post from musician Erin McKeown about her reaction to finding out that a Sony Music artist had copied one of her songs without credit, and the copied song was now becoming a hit. That story kicked off quite a discussion. A few days later, I actually got to meet Erin in person at the Innovate/Activate conference, and we had a really enjoyable chat about the whole thing. So I was interested to see that Erin recently launched a crowdfunding project for her new album on PledgeMusic. PledgeMusic is a platform that's similar to Kickstarter, but focused just on music (obviously). It has some nice features (music player plus the ability to share some of the proceeds with charities) and some oddities (total goal amount isn't clear, and no way to embed anything?!), but if you understand Kickstarter, you'll understand what's going on here.
Of course, tons of musicians (and other creators) have jumped on the crowdfunding bandwagon over the past few years, so just seeing "yet another" project isn't newsworthy by itself. But what struck me about Erin's approach was that some of the tier offerings solidified an idea that had been bouncing around in my head lately about these kinds of projects: the ones that work are somehow uniquely personal to the artist in question. Figuring out what goes into the tiers is always something of a challenge, but I think going with purely generic tiers doesn't do much. I've said before that it's important for artists to understand the kind of relationship they have with their fans and build on that, and it appears that Erin does exactly that with her tier options. Some of them are just amusing, like offering her first Spotify check to a backer, or the anti-SOPA petition video she did during the SOPA fight.

But then there are some that seem like they're totally out of left field... and many of them really show off Erin's personality. Things like having her buy some books for you. Or spending an hour fixing your fantasy baseball game. Or actually going to a baseball game or a museum with her. Or, best of all, getting to play a game of wiffle ball with her and some friends (she seems to like baseball).


Now, again, quirky tier options aren't a new idea. We've been writing about them for years, and I know how some of our usual critics will react: with horror at the idea that Erin has to help people with their fantasy baseball teams to get them to support her music. Hell, we heard exactly that criticism three years ago when we highlighted Josh Freese's hilarious tiers, which included things like playing mini-golf with you, or getting lunch at PF Changs, having him wash your car, or giving you a tour of Disney land. To this day, one of our usual critics still brings up the mini-golf example derisively, arguing that if the new business model means musicians have to play mini-golf with their fans to get their support, the new model is a failure.

But that totally misses the point. No one is arguing that playing mini-golf or wiffle ball with your fans is the future of the music business. We're saying it's all about the kind of person you are and how you connect with your fans. That is, what works has to be something that is unique to the artist's personality, and which fits well with the kinds of things that make fans like that artist in the first place. One assumes that Josh chose minigolf and Erin chose baseball/wiffleball not because it was some horrific thing that they didn't like, but precisely the opposite: because those things are fun to them and they wanted to offer up something fun and unique that they could share with their fans as well. And, in both cases, it seems like they're succeeding.

These kinds of offerings help the artist not just make money, but to better connect with their fans by letting their own unique personality shine through. It's that kind of personality that makes people want to support the artists. It's not because they want to play mini-golf or wiffle ball, but that they like supporting the artist in a manner where the artist gets to have fun as well. And that's pretty cool.

It really appears that The Pirate Party is no fluke in Germany. After winning 9% of the vote in the Berlin parliament elections, and then 7.4% in Saarland, the party has now received 8.2% of the vote in Schleswig-Holstein. These are each local "state" elections, and there's another big one next week, in Northrhine-Westphalia, where they're apparently polling in a similar range. It seems clear that The Pirate Party is certainly surpassing the German Green Party as the preeminent 3rd party -- and it seems to be having an impact. As we noted, the Greens have tried to co-opt much of the Pirate Party's agenda as their own, and Germany's major political parties have started to show a much more reasoned approach to copyright as well.

And it's definitely getting increasing notice. Last week, we pointed to an op-ed piece in the NY Times about the Pirate Party in Germany, and this week, they've followed it up with a full article about the Party's success, which also discusses how the Greens are frantically trying to convince the younger generation that they're cool, too:

The Greens were once the insurgent activists on the political scene. Now founding members from the ’68 generation have started collecting their pensions. A Green campaign poster with a cursor arrow pointing at a Facebook thumbs-up icon carried a whiff of desperation to keep up with the Pirates.

Of course, it's worth noting a point that's been left out in many of the discussions about the success of the German Pirate Party: Germany has some of the worst copyright laws around, especially on issues like secondary liability. Perhaps those two things are linked... and perhaps those who keep pushing for more draconian enforcement of copyrights might want to take that into account. There's little to no evidence that such laws do anything to slow down infringement, but it sure seems to make people respect copyright law even less.

While the focus on the cybersecurity debate shifts to the Senate, the supporters of CISPA are still loudly trumpeting that bill's supposed merits. Though the final legislation that will go before the President is undecided, and may not even be based on CISPA in the end, the details of the bill are still very important, as they contribute to the overall shape of the discussion about cybersecurity. As part of the ongoing media campaign, CISPA author Mike Rogers took to the pages of The Detroit News last week to drum up support with a screed that reeks of nationalist fearmongering and utterly misrepresents the scope and purpose of the language in the bill.

The United States, over time, became a global superpower with its hard work and know-how leading to innovations in new manufacturing, health care and information technologies. Now China is trying to use cyber espionage and theft to take a short cut to achieving superpower status.

It began with China stealing hard-copy business plans and sensitive research-and-development information from U.S. and other Western companies when their executives traveled to China. U.S. companies soon began noticing a surge in counterfeit products as their innovations were being stolen, re-engineered, and sold by Chinese companies on global markets.

With the Internet boom, China turned its focus to cyber espionage and began stealing the hard work and innovations of U.S. companies on a far larger scale.

Rogers should be careful—if he says 'China' any more times, Fu Manchu might appear in the mirror and drain his 401(k). Once he's got the reader good and scared of the Yellow Menace (having thrown in a few emotional appeals to hardworking Michigan autoworkers for good measure), he explains how CISPA is needed to take care of all those annoying regulations that limit government power and protect people's privacy:

Unfortunately, American companies are not getting the best protection available.Today, the U.S. government has intelligence information about the threat posed by nation-state actors that could help the American private sector better protect itself. However, we don't currently have a mechanism for allowing the government to share intelligence about cyber threats with the private sector, nor do we have the ability for private sector companies to share information with others in the private sector, and with the government on a voluntary basis, so that the private sector can better protect itself.

And you know what? That's fine. Even though there is a lot of debate about the true scope of foreign cyber threats, if there is a way for the government and the private sector to share anonymous network analysis data in order to improve technological defenses against hacking and malware attacks, it makes sense to legislate a mechanism for them to do so. Unfortunately, CISPA goes way beyond that—now explicitly so.

This goes back to my opinion when CISPA was amended and passed in the House: my initial reaction that it had gotten much worse was partially incorrect, but even though the amendments did technically limit the government's power under the bill, I still had (and have) a problem with the way they expanded the stated intent and purpose. From the very start, CISPA supporters have insisted (as Rogers does in this column) that it's basically all about technical considerations in fighting off foreign cyber attacks. Initially, privacy and civil liberties groups objected that it would allow the government to do much more, including accessing the private data of American citizens without a warrant—and the response was basically "no, no, it has nothing to do with that".

Right up to the last minute of debate before the House vote, CISPA's backers held to the talking points and expounded on the threat from China and the need to share technical network data. But, to appease privacy groups, they supported an amendment to limit the ways the government could use shared data under the bill to a set of explicit purposes. And what were those purposes? Far from just foreign threats, they include investigating domestic cybercrime, investigating domestic violent crime, protecting children from exploitation, and of course the catch-all "national security" that was already in the language.

It feels trite to add the obligatory preventing violence and protecting children is a good thing here, because d'uh, but when exactly did CISPA become a bill about these things? If the government wants new exceptions to privacy laws for the purposes of fighting crime, that's a major discussion with obvious constitutional implications—a discussion that privacy groups have been trying to start all along, but have been brushed off with claims that CISPA is just about rebuffing those devious foreigners. Now CISPA explicitly includes provisions for collecting evidence on domestic crime, but Rogers is still writing editorials like this one that don't mention anything to do with child exploitation, violent crime, or anything else that doesn't have the word China attached to it.

Rogers finishes the piece with a rather astonishing little rallying call:

It took Michigan's auto industry decades to achieve its prominence and the United States centuries to become a global superpower. We cannot let China steal it all away in a few short years.

I'm not sure how long it's been since Rogers visited Flint, but I think it's changed a little since he was last there. Nonetheless, the point is clear: if the government can't snoop your data for child porn and affiliations with Anonymous, the Chinese are going to start manufacturing American cars and destroy the Michigan auto industry, in turn toppling the U.S. as an economic superpower. Wait, did I say "clear"?

For years, JK Rowling absolutely refused to offer an ebook version of the Harry Potter books, claiming that doing so would lead to piracy. As we pointed out at the time, that was ridiculous, because the books were already widely available in unauthorized forms online, and putting legitimate versions up wouldn't change that -- it would just allow people who wanted to pay to do so. It took years, but when Rowling finally came to her senses on ebooks, she even went further and ditched the DRM (and the middleman). And, while there were some questions about the true value of the setup, overall, it's hard not to consider it a pretty massive success.

In the first month alone, it appears that almost $5 million worth of Harry Potter ebooks were sold. But here's the interesting bit. Even with DRM-free books, and plenty of infringing copies being out there, not only did tons and tons of people pony up for the ebook, but it also increased physical book sales as well, even as some worried that it would cannibalize such sales:

The Harry Potter e-books are DRM-free. ”Obviously there were fears piracy would increase as a result of being DRM-free, and that sales of the e-books would cannibalize sales of the physical titles,” [Pottermore CEO Charlie] Redmayne told The Bookseller, “but we were delighted to see sales of the physical books go up, and piracy come down.” He also said that “though there had been an increase in piracy immediately after launch, the community had rejected these illegal versions because of how the e-books were brought to market.”

Indeed, it's good to see that Rowling's team figured out ways to add value to get people to buy, but it again highlights some points we've been making for a while. Just because things are available for free, it doesn't mean people will automatically go the infringing route. If you offer something better that people want, they'll buy it. On top of that, the fear of cannibalization may be overblown as well. We've heard similar stories in the past as well, where authors have found that wider ebook infringement also means increased physical sales.

There was some indication last week that the jury in the Oracle/Google lawsuit was having trouble coming to agreement, and it appears that despite some effort to try to fix that, in the end the jury remained deadlocked on a bunch of issues. However, it did decide that Google infringed on Oracle's copyright in the Java APIs it used -- but what the jury punted on was whether or not those uses were allowed via fair use. This seems a bit odd, since fair use, despite supposedly being a defense, still means that there was no infringement. So, basically the jury said that Google may have infringed... which is pretty useless for a jury. Separately, the jury rejected the idea that Google infringed on the documentation of the APIs. It also found that Google did not infringe on the comments for some of the code, but did infringe on using rangeCheck in two files. That said, the jury again punted on whether or not the use was de minimis (which, again, would mean non-infringement).

According to The Verge (who is in the court room), the jury also wasn't buying the claim that Google relied on Sun's statements saying that Google's use was okay. The jury's main problem with Google's claim here wasn't that Sun hadn't made clear that the use was acceptable. It was that there wasn't much evidence that Google actually relied on such claims from Sun. I can understand why the jury might claim this, but I wonder why it would matter. Given that Sun made clear that Google's use was acceptable, in what world could you later turn around and claim that its use was unacceptable?

Either way, the fact that the jury couldn't come to an answer on the fair use/de minimis questions effectively sinks the entire process. Google immediately asked the judge to declare a mistrial, and the judge has supposedly asked both companies to prepare arguments over whether or not a mistrial should be declared, so this is far from over.

We hear this idea pop up every now and again, and I'd thought by now it had been shown to be pointless enough times that no one would seriously consider it again. Apparently, I was wrong. UK Prime Minister David Cameron is considering requiring adults who want to see porn online to "opt-in" by getting what is effectively a "porn license" to surf the sites deemed naughty by the government. Those in the UK government who actually think this is a smart idea might want to talk to their friends Down Under. Australia has toyed with similar ideas in the past, and they've all gone down in embarrassing flames. There was the filter that blocked educational sites, but left plenty of porn available. And there was the filter that took a teenager all of a half hour to crack.

Both of these highlight the key problems with the plan. Once you go down the path of censoring the internet, suddenly very, very big questions are raised about what gets put on the censorship list. It's easy to say "oh, well, porn is blocked," but something countless people (including judges) have struggled with over the years is how to precisely define porn. It's not nearly as easy as many people think. In nearly every case with filters we see a pattern: perfectly legitimate content that almost no one would consider to be porn gets blocked. And tons and tons of "porn" isn't blocked. Second, people will very, very, very quickly figure out how to get around such blocks.

The other issue, which doesn't come up as often, is the sheer ridiculousness of requiring people to effectively announce to the government that they want to view porn. They describe it as an "opt-in," but as I've said in the past, it's really more of a "porn license." People may have all sorts of reasons for looking at porn, but having to tell your government that you want to look at porn seems like a clear attempt to humiliate people for no reason other than that some in the government don't like the fact that others like porn.

If there's concern about kids viewing porn -- often the "think of the children!" justification that we hear -- there's nothing stopping parents from putting in place their own filters (which are likely to be as effective as any national filters). Why go further and try to block things for everyone?

Apparently AT&T-land is a place where basic economics doesn't apply. AT&T boss Randall Stephenson, still hurt from the rejection of his attempted merger with T-Mobile, is telling the world that greater competition means higher prices and less efficient markets. That this goes against nearly all understanding of economics seems like an important point that would be worth bringing up to Stephenson, but apparently the reporters present didn't bother. In particular, he claims that AT&T had to increase its data rates by 30% because it doesn't own T-Mobile. That makes no sense, but okay. Then he claims that competition makes things less efficient:

"The more competitors you have, the less efficient the allocation of spectrum will be," he said. "It's got to change. I don't think the market's going to accommodate the number of competitors there are in the landscape."

This is how a monopolist argues: if we controlled everything, why things would be much more efficient. He's seriously arguing that the fact that they have to compete for resources means that they can't get the same level of monopoly rents. Yeah, that's called capitalism, where you actually have to compete in the market. I mean, I'm sure UPS hates that it has to share the roads with Fedex (so inefficient), but it's actually good for the consumers to have real competition. Apparently, though, AT&T has a different point of view.

Remember that old joke about how copyright law is only supposed to protect the specific expression and not the idea? Yeah... that was a good one. It seems that every day we hear yet another story about people and companies trying to claim much more than "the expression" when claiming copyright control over something. Take for example, this threat from CBS against ABC, claiming that ABC's in-production reality show, called Glass House, violates the copyrights CBS holds in its reality show, Big Brother:

CBS is the exclusive U.S. licensee of Big Brother, which it has been broadcasting since 2000. Big Brother is a reality television series in which a group of people live together in a large house, isolated from the outside world. The contestants are filmed continuously. Each cycle of the series begins with 12-14 contestants, and over the course of three months, contestants survive periodic evictions. Through interactive features, viewers are able to have input into aspects of the show, such as challenges in which the participants compete. The last contestant standing wins. Like other valuable creative works, Big Brother is protected by copyright law, and anyon creating substantially similar work without authorization -- as appears to be the case with ABC in this instance -- is liable for copyright infringement.

Reading through that description, it appears to describe the basics of pretty much every reality TV show ever. That is, it's a bunch of basic ideas that are used widely, usually with some variation here and there, but it's a pretty simple -- and totally unprotectable -- formula. Of course, as the article linked above notes, similar lawsuits have ended in settlement, and I wouldn't be surprised to see ABC cave and settle here as well, even if it seems to have a pretty strong case that everything it's doing is perfectly legit. But, really, when's the last time you saw Disney fight against anyone overclaiming copyright? Yeah, it's not likely to start now. So, we're back to telling old jokes...

On Friday, Declan McCullagh over at News.com had the latest reports of the FBI trying to get new laws in place that would require all kinds of internet communication services to include wiretapping back doors, so that law enforcement could tap into them. This isn't a new idea. The FBI has been calling for this for a long, long time. We had mentioned it just last year, but it goes back much further than that. Basically, the FBI is upset that it can't easily tap certain popular VoIP and social networking communication tools. So it wants to effectively force the tech industry to build back doors into pretty much everything.

It's understandable why the government would want this, but that doesn't mean it makes very much sense. First of all, there will always be ways around such taps, and you can bet that major criminals/terrorists are already figuring out how to use systems that are much more protected. Second, as soon as you open up such backdoors, you have pretty much guaranteed that they're going to be abused. Those with nefarious intent will figure out how to access them as well, and people using these systems will be much more at risk, not just of governments spying on their conversations. Second, it's really an impossible task. All that will happen is more alternatives, which will be decentralized and encrypted end-to-end with no possibility of back doors, will likely pop up. The end result won't make it any easier for the FBI to track down real criminals, but will put plenty of non-criminals at risk. Oh, and it will do this while making things much more expensive for any tech company that wants to let its users communicate. That doesn't seem particularly helpful.

When the Betamax/VCR first came out, Hollywood insisted that it was pure evil and that it would be "the Boston Strangler" to the movie business. And, if you looked at how the devices were used at first, you could easily argue that the vast, vast majority of the usage was, in fact, infringing. In part, that was because the movie studios were so freaked out about such devices, they couldn't even comprehend offering licensed movies for home viewing at the time. Instead, the device was purely about "theft." Of course, after a drawn out trial, the Supreme Court (very closely) came down in favor of the VCR, and said that because it had substantial non-infringing uses, it was legal. Just a few years after that, the home video market for the major Hollywood studios was so large, that it was widely claimed that the VCR saved Hollywood, rather than killing it.

This story is not a unique one. We seem to see the same thing with every disruptive technology that old guard entertainment firms can't comprehend. When radio was introduced it was declared that it would kill the music industry. The RIAA worked hard to have the MP3 player declared illegal.

It happens over and over again -- and each and every time, soon afterwards, new markets emerge, new opportunities become abundantly clear, and the platform that was supposedly pure evil and bent on the destruction of the industry turns out to be a huge new revenue base and opportunity, usually providing revenue in ways that simply weren't possible before that new technology came along.

It sure looks like the same exact thing is happening with YouTube. As you probably know, Viacom is still engaged in a drawn out lawsuit against YouTube over many thousands of clips that Viacom insists were infringing and a massive blight on its bottom line.

And yet... because YouTube had the time to develop, something interesting has been happening. By now you're hopefully all familiar with ContentID. While it has its quirks and issues, one thing that is clear is that it's become a tremendous source of revenue for content creators to monetize works uploaded by others. But it's not just others. NPR has a story about how the major MPAA Hollywood studios -- including Viacom -- are now profiting nicely by purposely uploading all sorts of clips from their various movies, knowing that people are searching for and watching key moments... which they can monetize:

Oh, and the fun part: she gets to watch movies, pick the most memorable moments, and upload those clips to YouTube. Today, it's L.A. Story.

"We always pick a clip that has a beginning, middle and an end," says Strickland, pointing out the various fields she has to fill out in the content management system before she uploads a clip to YouTube. "I put everyone that's in the scene: so Steve Martin, Richard Grant, Victoria Tennant, Sarah Jessica Parker, I put some of the memorable dialogue — 'SanDeE your breasts feel weird, oh, that's because they're real' — then you put discussion topics, character types, settings, eras, what they're doing."

It consists of hours of tedious work to ensure this licensed content will show up first when you go searching for your favorite movie clip on YouTube. Not an easy task when 60 hours of video are uploaded to YouTube every minute.

This is a company that all the big MPAA studios are hiring to go out, find these clips in their own movies, and upload them (and then do things to get them to the top of Google searches). Apparently, it's quite lucrative for the studios. Of course, what's funny is that the same people who are now celebrating this new revenue stream are also the ones who just a few years ago insisted not only that YouTube was illegal, but that it was dead, because no money could be made from it. But, somehow, these things have a way of working themselves out if they're allowed to do so.

This is one of the things that is so troubling to me about the abrupt shutdown of Megaupload. While, at an initial glance, it's easy to insist that the service must be illegal, the company was actually very actively trying out unique new business models for artists, which many artists celebrated. But we'll never know how well those would have worked. When the VCR, radio, the MP3 player and YouTube first came on the scene, the industry insisted they were all just as bad as Megaupload. In hindsight those arguments seem pretty silly -- but it seems like we'll never be able to get that same hindsight for Megaupload. And that's a real shame for the content creators who almost certainly would have embraced new business models enabled by this new technology.

Update: Apparently not. The Beastie Boys have just been sued for copyright infringement over samples on Licensed to Ill and Paul's Boutique (both albums over 20 years old).

Late last week there was the very unfortunate news of the passing of Adam Yauch, better known as MCA, one-third of the Beastie Boys. I know a few people who have known him, and people only have had the most amazingly nice things to say about the guy. Like plenty of other folks, I've spent the past few days firing up old Beastie Boys albums, and (in particular) their classic Paul's Boutique -- which Nancy Sims rightfully pointed out: "it's a sad copyright lawyer that doesn't at least own" that particular album. And that's because not only is it one of the all-time great albums, it's also well known for including hundreds of samples.

Thankfully, for the world, Paul's Boutique (and a few other classic hip hop albums) got in under the wire, before the industry started throwing around lawsuits against each other for sampling. An analysis last year of what it would cost to clear all the samples if the Beastie Boys decided to put together such an album today, when not clearing every song gets you sued. It turns out that based on how much labels seem to charge for samples, and the massive number of samples on the album, Capitol Records would have lost $20 million on the album, despite it selling 2.5 million copies.

In other words, you could not reasonably clear all the samples. There is no reasonable price.

As a result of that, of course, we can't have the next Paul's Boutique, unless it's done underground and whoever makes it gets lucky that no one spots the work and gets angry. What an incredible step backwards.

In response to all of this, the EFF has pointed out that it would be a fitting tribute to MCA to fix this problem by creating a way to make sure that samples could be used in songs:

We think it’s pretty clear that the samples the Beastie Boys used in Paul’s Boutique and that Girl Talk now uses in his records are classic examples of fair use. Unfortunately, many artists these days are nonetheless under pressure to pay licensing fees for similar uses. Despite the fact that most cases rightfully find that sampling is not copyright infringement, the mere threat of a lawsuit (and the specter of statutory damages) is enough to intimidate musicians and labels alike. This cottage market of sample licensing stands in the way of creating the next Paul's Boutique – a sad comment on MCA's legacy.

The time to come up with a new, effective licensing scheme is long overdue. Young artists should be encouraged to remix and create in all the exciting new ways that technology allows, not sidelined by expensive licensing battles. Solving this problem would go a long way in that direction and be a fitting tribute to MCA, the Beastie Boys, and the fantastic remix culture they helped foster.

Forget the Sonny Bono Copyright Extension Act, where's the Adam Yauch Right To Sample Act? We shouldn't even have to fight for our right to sample. But... such is the unfortunate state of the law.

One of the beloved tropes of the copyright industries is that they are being destroyed by online piracy. Superficially, it's a plausible claim, not least because of the false equation of copyright infringement with "theft", and the lingering suggestion that every time something is shared online, a sale is lost. Of course, as Techdirt's report, "The Sky is Rising", demonstrated from publicly-available figures, the facts are very different: all of the creative industries are thriving.

Here's news from the UK book publishing industry, where things are indeed looking pretty good given the current financial climate:

Consumer e-book sales increased by 366% to £92m [$150 million] in 2011, with sales across all digital formats accounting for 8% of the value of sales of all books, according to the Publishers Association's Statistics Yearbook 2011, published today (1st May).

Just as significant is the following comment from the Chief Executive of the UK Publishers Association, Richard Mollet, who is quoted in the above article as saying:

"story of the year is a decline in physical sales almost being compensated for by a strong performance in digital", with the combined sales of digital and physical books decreasing by 2% in 2011 to £3.2bn [$5.2 billion], according to PA data.

So you'd think the Publishers Association would be celebrating this resilience in the face of economic downturn, and underlining how its members are really getting the hang of this online stuff. But no:

Mollet said: "For many years now publishers have invested in digital products and services and this is being reflected in the increasingly mixed economy for books in the UK.

"However, online copyright infringement is increasingly making its presence felt for authors and publishers and that is why we continue to call on government and other stakeholders in the digital economy to work with us to do more to tackle it, and to ensure that the UK's e-commerce performance is as strong as it can possibly be."

Of course, no evidence is presented that the "presence" of online copyright infringement is a problem -- it's simply taken as a given, because that's what the orthodoxy says. But here's an alternative hypothesis: it's because people have started sharing ebooks online and making others aware of their virtues that the market is finally taking off. Now, that may or may not be true, but there is as much evidence for it as there is for the contrary position -- that is, not much.

So before the copyright industries start calling for yet more government crackdowns on copyright infringement, with ever-more disproportionate measures and a concomitant erosion of civil liberties, they might like to produce some independent, peer-reviewed research that backs up their claims about the supposed harm of online sharing. After all, if anything, these latest figures from the UK publishing industry confirm that, once again, the Sky is Rising.

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