And, here we go again. The press and "cultural commentators" absolutely love to blame new technologies for someone who does something bad. The latest is that in response to the crazy Luka Magnotta case (involving the guy in Canada who killed and dismembered someone, filming the whole thing, eating some pieces and sending others to politicians) a "cultural critic" in France is arguing that without the internet, Magnotta would not have committed his crimes.

Without the web, “the butcher of Montreal would not exist,” Mr. de Boni concludes. “This killer character is a narcissistic and deviant avatar, one of many virtual identities he invented in order to create celebrity.”

Because, of course, prior to the internet and Facebook, there were no such things as psychotic people who killed others and ate them. While the internet may have influenced the specifics of how Magnotta went about his crime, it seems ridiculous to jump to the conclusion that absent the internet, none of this would have happened. Magnotta was clearly a very sick individual. If anything, it's worth pointing out that unlike the other examples I linked to in this paragraph of sociopathic killers who dismembered and ate their victims, Magnotta was actually caught after just the first victim -- in part because he provided all sorts of evidence of his guilt online.

Meanwhile, over in Norway, where the trial of mass murderer Anders Breivik is going on, we had already noted that the press was having a field day with the claim that Breivik played a lot of World of Warcraft. That seems pretty silly considering the millions of people who play the game. However, bizarrely, the prosecution has brought it up in the trial, letting the press grandstand on the issue yet again. Even Breivik found that line of questioning to be stupid, declaring (correctly) that "it is not relevant to this case whatsoever."

But it is relevant to reporters who want to build a story about those crazy video games...

Why is it so hard to believe that there are psychotic/sociopathic people out there who do harm, and that's got nothing to do with their internet or gaming usage? These things aren't "triggered" by surfing the web or playing games. I recognize that people feel the need to look for a "reason" that these people exist and do such horrible things, but it should be pretty clear that it's a problem with them -- not their use of technology.

Of course, if we should be concerned about video games at all in the Breivik trial, perhaps it should be over the fact that a judge in the case was spotted playing solitaire on his computer during the trial:

Back in December, right after it came out that the Justice Department had seized and censored a hip hop blog for over a year and then gave it back, effectively admitting that there was no legal basis for the censorship, Rep. Zoe Lofgren asked Attorney General Eric Holder about what happened in the case. After making a joke that his daughters might know more about it than he did, he promised to get back to Lofgren with a more complete answer once he was more familiar with the situation.

Turns out he never responded to her questions.

Of course, since then the secret proceedings in the case (which Dajaz1 was not even allowed to know about, or even have their lawyer speak to the judge) have been unsealed. Those revealed that the ICE Agent in charge of the case, Andrew Reynolds, had basically sat around doing nothing for over a year, waiting for the RIAA to finally provide the evidence that Dajaz1 had broken the law. That evidence was obviously never produced, which is why Dajaz1 eventually got its domain back.

There was another oversight hearing yesterday, and Zoe Lofgren quizzed Holder again, noting that not only did he not respond to her questions, but also highlighting the unsealed documents, which show that the original affidavit was misleading.
Holder first responds that he "believes" the seizures were legal, because the court signed off on them. Lofgren immediately challenges that, noting the incorrect or misleading information in the affidavit, and asking if he believes it's okay to censor a site for over a year and not allow the site to even be heard by the court in all that time. At that point, he at least admits that if the affidavit was "misleading" that "that would not be an appropriate basis for action on behalf of the government." He also notes that seizure is a powerful tool that needs to be used "judiciously." And then notes that if what Lofgren descrbied was accurate "that would be of great concern."

Of course, none of that comments on what actually happened here -- and it's not like this is the first time he's heard of this. Remember, he was directly asked about it last year, and had promised to look into the details. Furthermore, after the hearing, Lofgren put out a statement saying that not only did she not hear back from him after her questions last year, but "prior to this hearing my staff told his staff to tell him the question I was going to be asking so he could be prepared to answer." Clearly, he was not prepared to answer.

As Lofgren notes, "I didn't think it was a very impressive answer, and to suppress free speech for a year with secret proceedings and no probable cause is a problem. It's not the way America is supposed to be."

Back in April, I wrote about the Hack Society meeting at Union Square Ventures, where Rep. Jim Cooper provided a great quote:

"The past, in general, is over-represented in Washington. The future has no lobbyists."

That is, indeed, a problem to some extent. Of course, that then leads to a debate about what to do about that if you believe in the importance of disruptive innovation, and fear incumbents holding it back. The answer is not necessarily to "hire lobbyists" and play the same game -- because that's simply not a winnable war. The real answer is change the way things are done. There are a growing number of groups trying to do that, and while some may accuse them of just being "more lobbyists" at first, that severely underestimates what they're actually setting out to accomplish. GigaOm has a nice summary piece on a few of the groups who are seeking to have "the future" better represented in policy discussions.

It kicks off with a brand new think tank, put together by CCIA, called the Disruptive Competition Project -- or Project DisCo for short. Its focus is to highlight the importance of disruptive competition. This is a big deal, since legacy players almost always seek to position disruptive competition as doing something "illegal," when the truth is merely that they're disrupting the business models of those legacy players. This is a brand new effort, but with some great minds involved, so I'm excited to see where it goes.

Then they discuss Engine, a group that (full disclosure) I helped put together initially, and remain on their steering committee/advisory board. Engine is really about a two way conduit for education and information exchange between policy makers and the startup ecosystem. Too often we've heard that entrepreneurs just ignore policy makers (and equally from policy makers that they never hear from startups). This is often because the entrepreneurs are so focused on getting stuff done and just want government to get out of the way. But ignoring the government is no answer -- it's how we get bad policies that favor incumbent players and stifle innovation. Engine is seeking to change that not by lobbying in the traditional sense, but by opening up channels of communication, and presenting a real data-driven approach to things. Oh, and if you're a startup entrepreneur, you should become a member -- it's free and it'll help make sure your voice is heard in policy debates.

Next up, we've got the Internet Defense League, in which (again, full disclosure) Techdirt is a member. This was put together by the folks at Fight For the Future -- who were instrumental in the anti-SOPA/PIPA fight, recognizing that it would be good to have a bunch of websites ready to respond to existential threats against the internet. With SOPA/PIPA the threat was so large and so clear that they were able to get a bunch of websites to sign on for things like the "Call Congress" day in November and the big anti-SOPA blackout in January. The goal of the IDL is to leverage that effort into having sites prepared to respond when other big threats come along, rather than having to cobble together a new coalition of sites every time.

The final piece listed is TestPAC, Please Ignore, the PAC that was built out of the Reddit community, though isn't associated with Reddit the company. While this is an interesting attempt to play the "traditional" game with an internet twist, I'm not convinced that playing the game this way is ultimately going to succeed. In the end, we know that the incumbents are almost always going to play the PAC game better than the upstarts. I'm glad that these guys are trying, but I'm much more interested in the efforts that are seeking to really change the game, not just be a new player in the old game.

Either way, it's good to see that more people are thinking about this, and it's not over yet. I'm aware of at least three other efforts to really try to change the game in politics and policy to make sure that "the future is represented." Any one -- or even all -- of these may fail completely. But I'm encouraged to see multiple groups trying to get involved, and recognizing that ignoring policy is no longer an option.

For people who are trying to watch their waistline, cake is generally off-limits. Sure, there are ways to make cake "healthier" -- for example, by using less sugar and substituting oil and butter with things like pureed fruit and vegetables or yogurt -- but that cake just won't be as satisfying as a rich and decadent piece of cake made the traditional way. Here's some good news and a few examples of decadence taken to the next level.

• According to researchers from Tel Aviv University, you can lose weight by topping off a 600-calorie balanced breakfast with a piece of cake. Apparently, the key is to have sweets in the morning when the body's metabolism is at its peak, then work off the extra calories during the rest of the day. Over 32 weeks, people who followed this diet actually lost 40 pounds more (and kept the weight off longer) than those who avoided eating sweets altogether. [url]
• A pastry chef in Wisconsin made a dessert version of a turducken and called it a "cherpumple." The cherpumple consisted of a cherry pie, an apple pie, and a pumpkin pie -- each baked within a cake. Then the cakes were stacked together and covered with frosting to form a giant 21-pound monster of a cake. [url]
• Mr. Kipling, a British baked-goods brand, is promoting its snap-pack "on-the-go" cake products with cake-dispensing posters. Specially converted poster sites will dispense free cake to the public, and some posters will also be sprayed with a special scent to emit the smell of cake. [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.

While there's room for debate on whether Rupert Murdoch's paywall strategy for the UK Times and Sunday Times has been disastrous or just mediocre, it certainly hasn't been a massive success or reinvented any online news business models. Now we're beginning to see some telling cracks in the facade: the Times paywall recently came down during the Queen's jubilee weekend, and now TNW reports that a similar free-access period is being considered for the 2012 Olympics.

Now, promotional giveaways are hardly a new or crazy idea, and they don't typically say anything bad about a business model—but I don't think that's really what's happening here. Certainly the Times hopes to convert some of those free readers into paid online subscribers, but there's also a clear pattern in the items they choose to make these exceptions for: huge social events that are attended and discussed by lots of people. In other words, precisely the sort of thing where blogs and social media offer the most competition to a newspaper. Why would anybody pay for Olympic reporting when the web is going to be absolutely flooded with constant updates on every little thing that happens, supplied for free by the fans and hangers-on? If the Times content is behind a paywall, it will be all but ignored.

And this really goes to show why, in the long run, paywalls are unsustainable. If the biggest, most popular topics are the hardest to control—and the ones that lose value the most when controlled successfully—while at the same, time social media and citizen reporting output is growing and expanding to new areas constantly, then the inevitable conclusion seems clear: paywalls are, at best, a temporary way of extracting a little bit of cash at the expense of long-term relevance. If your goal is to directly sell news as a product, but you discover that you have to eliminate your prices whenever product demand is highest, something is clearly wrong—you're trying to apply an old model where it doesn't actually fit, and getting kooky results. The solution is not to keep compromising the broken model, but to embrace the underlying realities (infinite content, no barrier to publishing, the huge value of share-ability) that broke it, and build new models around them.

One of my favorite radio programs/podcasts is Radiolab. They do absolutely amazing storytelling on really interesting things. I don't think I've ever listened to a Radiolab program and then not gone off to talk to someone about it. Their most recent full episode (they also do "shorts") is a really fascinating exploration of color. The final section, on why Homer (of Iliad & Odyssey fame, not the Simpsons character) never mentioned the color blue is simply brilliant.

That said, it's also been interesting in the last month or so to watch the Radiolab crew start to embrace some of the ideas that we've been exploring for some time, concerning CwF+RtB (Connecting with Fans and giving them a Reason to Buy). I first noticed this about a month ago, when Radiolab announced its Lab Partners premium offering. Just as we've seen with artists who offer up content for free, but give people "subscription" style offering for premium features (sorta like our own Crystal Ball offering), Radiolab is giving people a ton of extras if they subscribe.

Some will argue, of course, that this is nothing more than a modern update to the traditional patronage model of public radio -- wherein they beg for pledges every so often and you might get a tote bag if you spend enough. And, clearly, the ideas come from the same general place. But there are some key differences -- mainly that the premium features aren't worthless tote bags, but are actually related to the show, and include things like access. So, for example, you can join an editorial chat with the Radiolab team, or, my favorite:

Toss Your Name in the Hat: Enter your first name to a pool of names that we’ll draw from whenever we need to use a made-up character name in a story.

Like many of these kinds of offerings, Radiolabs has a couple tiers to let fans self-select. My one quibble is that I think there aren't enough tiers -- and there isn't a really low entry-level tier. In watching these kinds of experiments, at least having a very low level of support as an option can really help get more people involved and build up the buzz for a program. But, either way, it's neat.

Of course, that's not all Radiolab is doing. They really are doing a lot on the "CwF" side of things too. They've done a number of touring live shows (where they often bring along great musicians, like Zoe Keating). But they've also just launched a remix contest for the show. Remix contests are nothing new in the music world, but I've never heard of one for a radio show/podcast before. But they're doing the same basic thing -- releasing the stems, allowing you to re-score the music, etc.

If you've never listened to a Radiolab production, you might not understand why it would ever make sense to remix a radio show. But, the level of production that goes into every Radiolab episode is astounding. And they do a great job with how they reveal stories and plots. I'm honestly not sure that anyone could actually do a better job editing together an episode of Radiolab than host Jad Abumrad, but I'm actually really curious to hear what other fans can come up with.

As a brief aside, last fall, another great radio/podcast story teller, Ira Glass, from This American Life, did a thorough writeup of why Radiolab is so amazing, and it goes into some amount of detail about how Jad and Robert put together an episode. I think anyone seeking to remix an episode of Radiolab might learn a bunch of useful things from reading it.

Either way, I always think it's great to see more and more people in various areas start embracing these basic concepts and doing really cool things with them. At this stage, it's really just a bunch of experiments, but that's how amazing new things happen.

Okay, folks at 1pm PT join us for a Q&A discussion with Patricia Aufderheide, co-author of Reclaiming Fair Use. We published a bunch of excerpts: here's the first excerpt, the second excerpt, the third excerpt and the fourth excerpt, so check them out if you haven't had a chance to read the book. And then join in and ask some questions or provide your own thoughts on the book.

Judge Richard Posner is, perhaps, the most influential judge not on the Supreme Court. Beyond writing a ton of books (and columns and articles and blog posts), his rulings often seem to carry extra weight. On intellectual property, he's been something of a mixed bag. He's written an entire book (which I consult frequently) on The Economic Structure of Intellectual Property Law. While extremely knowledgeable on the subject, he does (too frequently) come down on the side of believing that without IP law, you couldn't have a functioning market for products that are covered by intellectual property. Still, he doesn't just roll over on IP cases (or, really, any case -- though I'm still troubled by his belief that filming the police in public can be a bad thing).

While he normally is on the 7th Circuit Appeals Court, appeals court judges will sometimes "slum it" down at a district court. So Posner was handling a big patent fight: one filed by Apple against Motorola for patent infringement concerning (of course) smartphones, down in the Northern Illinois district court. As we've discussed at length in the past, there are a whole bunch of patent disputes concerning smartphones, with companies suing each other in the courts or seeking injunctions from the ITC. This case was one of the "main events," especially considering Google's purchase of Motorola.

So it's pretty interesting to see that Posner has told everyone he's dumping the case. The trial was supposed to start on Monday, but he released a statement saying that there's nothing worth reviewing at a trial, and that he's dismissing the case with prejudice (meaning it can't be refiled), and effectively saying (in much nicer language) that the whole thing is a joke. The note concerning this says he'll issue a full ruling within a week -- though, he says that "in the course of... preparation I may change my mind" on the reasoning for the dismissal. Still, he lays out the basics, which are that there's simply nothing worth discussing. As he puts it: "neither party can establish a right to relief." Apple has admitted that "it cannot prove damages for the alleged infringement" of two of the patents, that two other patents do "not create a genuine issue of material fact" that would allow a trial to move forward and, with the final patent, Apple's evidence of damages "fails to create a genuine issue of material fact."

This isn't a huge surprise, since Posner's statements in filings from a few weeks ago certainly suggested his annoyance that a lawsuit had been filed over these patents. As quoted by Jeff Roberts at GigaOm, Posner had hit back at claims from both sides with pretty strong language:

[re a slide-to-unlock patent] Apple’s .. argument is that “a tap is a zero-length swipe.” That’s silly. It’s like saying that a point is a zero-length line.

Motorola’s contention that the term has a “plain and ordinary meaning” is ridiculous; Motorola seems to have forgotten that this is a jury trial.

The statement from Posner also rejects the idea that, outside of the damages question, "injunctive relief" (blocking one another from offering the products) was reasonable, stating that it would "impose costs disproportionate to the harm" and "would be contrary to the public interest."

Roberts also notes that, in a bit of interesting timing, Posner had just a few days ago posted a blog post discussing the importance of capitalism, but noting that our version of capitalism is lacking in many ways -- with him specifically calling out the "dysfunctional patent system" as one of a litany of problems with the way we've embraced "capitalism."

Posner has certainly always appeared to recognize that intellectual property law could be abused, but this seems like a strong indication that he's realizing just how widely it is being abused under today's patent system.

Yesterday, I wrote about the ridiculousness of the Department of Commerce/US Patent and Trademark Office "study" that claimed to show how many "jobs" there were in "IP-intensive" industries. Among the many problems with the report was how it defined IP-intensive industries, with the top one on the list being.... grocery stores. In fact, most of the "top employers" on the list are industries that -- while they may find IP laws useful to stop consumer confusion over trademarks -- are not at all dependent on intellectual property laws to exist. In fact, the only one of the "top" industries that you might normally think of as being "IP-intensive" was "computer systems and designs," which includes many of the companies and individuals who have been fighting hard against the expansion of copyright and patent laws.

And yet, the entertainment industry and government officials have been trotting out the massive "jobs" count in this report as proof that we need expansionist IP laws and agreements like SOPA and ACTA.

As I mentioned in the post yesterday, back before this report came out, the White House had reached out to say that they knew I was interested in this kind of information, and asked if I'd like to interview the "economic experts" behind the report. I said I'd love to interview their experts. I was passed along to a Department of Commerce spokesperson, who asked me to pre-submit questions before I could interview the "economic experts." I always find that sort of setup to be a little ridiculous. Either let me interview the people, or don't. Don't make me pre-submit questions.

Either way, I was in the middle of a heavy travel schedule, and it took me a few weeks to have the time to go through the report more carefully, and come up with a list of questions, which I eventually sent. The spokesperson seemed confused that I would still be interested in this report, even as it was being used repeatedly by entertainment industry execs and government officials as justification for bad policies. After I followed up a few times, I was told yesterday morning that they were "unable to accommodate an interview" (remember, they had reached out to me first), but provided me with the following "statement."

All evidence suggests that patents continue to drive innovation in technology. At the time of his death, innovator Steve Jobs had more than 300 patents. Companies such as Apple have made transformative changes in our lives, made possible by massive investments made by intellectual property. But while such companies develop brand-new technologies and services, they also perform incremental innovation. Thus, IP conflicts arise as the byproducts of a very healthy overall innovation environment. The tech industry is characterized by extremely sharp drops in costs over time, extremely strong increases in performance, and multiple changes in market leads, with different companies leading at different points in time. That tremendously competitive marketplace is a sign of the critical role IP rights play in driving technology companies to invest, compete, create jobs, and drive exports.

On methodological question:

The IP report focused on identifying “IP-intensive industries and examining their characteristics and contributions to the overall economy.” One measure of the contribution of these industries to the overall economy is the number of jobs in these industries; other measures we looked at are value-added; wages earned by workers in these industries; and exports.

As I said yesterday, this statement is so ridiculous that I emailed the spokesperson back and said that, while a statement like this one is a goldmine from the perspective of being able to write a story about just how clueless the Commerce Department is, I'd much prefer a substantive discussion in which they respond to the various criticisms and concerns about the report and the methodology. I pointed out that the statements above do not respond to the criticism, and instead appear to suggest that they don't have a substantive response to that criticism at all. And thus I hoped they would reconsider and actually respond to the questions.

Instead, they seem to double down on the exact things that sparked the initial criticism of the report: they don't even try to distinguish the fact that people get patents or copyrights from the question of whether or not those tools were needed for the innovation to occur. Instead, it's just "well, Steve Jobs had a bunch of patents, Steve Jobs made cool gadgets, thus patents are good." Correlation/causation fallacy, anyone? Of course, it's even worse than that. They talk about the natural state of innovation (competition, driving prices down) and then make the leap to the claim that this proves "the critical role IP rights play in driving technology companies to invest, compete, create jobs and drive exports," despite failing to mention how IP rights have anything whatsoever to do with any of those things.

As I told the Commerce Department, pointing to some correlation between Jobs having patents and Apple having cool products as proof that the patent system works is like standing on the deck of a sinking Titanic and saying that everything's fine because at least part of the boat is still above water.

At this point, I can only conclude that the government knows it put out a ridiculously misleading report... or the people involved are so clueless that they honestly think that correlation between companies getting patents honestly means those patents "drives" the innovation in that technology, contrary to plenty of actual studies on the impact of patents on innovation.

We should demand better of our government.

Last week, we wrote about the NYTimes investigative report that revealed that the US government was behind Stuxnet, and that President Obama was very, very involved in the process. It was widely assumed that the US was involved, but this revealed a bunch of details. We were surprised that the White House appeared not to pressure the NYTs to kill the story (as it has with other leaks of classified info), but wondered if the fact that this made the White House look "tough" and showed a "success story" for the administration, caused them to let it go forward. Since then, however, reports have come out that the FBI is investigating the leak, and Senator Feinstein is similarly calling for hearings on the leak (though, the cynical might argue that this just keeps the "success story" in the news).

But, the most bizarre response to this also comes from Senator Feinstein, who publicly worried that the leak would lead to copycat attacks against the US. The leak. Not the actual attack:

Sen. Dianne Feinstein (D-Calif.), chairwoman of the Intelligence Committee, said the leak about the attack on Iran’s nuclear program could “to some extent” provide justification for copycat attacks against the United States.

“This is like an avalanche. It is very detrimental and, candidly, I found it very concerning,” Feinstein said. “There’s no question that this kind of thing hurts our country.”

This is, to put it mildly, crazy. The argument appears to be that it's okay to do technological attacks... just as long as it's all done in secret and no one ever talks about it. Without the leak, the attack still happened, and that information became public quite some time ago. If anything was going to inspire copycat attacks it would have been that. Though, even then, the claim is questionable. Those who wish to do this country harm haven't been sitting around saying "gee, we can't do anything technological" until they saw Stuxnet come along.

What's really ridiculous about Feinstein's statement is the basic chilling effects that it puts forth. It suggests that the US government can do whatever it wants in attacking other countries, just so long as no one ever talks about it. The talking about factual information isn't the issue here. And Feinstein should know that, rather than suggesting that basic investigative reporting is the problem.

In the past year, we applauded two Illinois courts for protecting every citizen's right to record on-duty police, and ruling that a law criminalizing the act is unconstitutional. We similarly pointed to Boston, where a court forced the city to pay someone they arrested for filming the cops. Of course, it's pretty concerning that this was ever in question to begin with—normally, the argument that "you don't need privacy unless you've got something to hide" is fallacious for a number of reasons, but that doesn't extend to people who are empowered and armed, ostensibly with the consent of the citizenry and on the condition that they follow their own strict code of behavior. The fact that there is a clear push to let officers operate without public scrutiny is intolerable on every level.

But, perhaps worse still, there is the fact that police don't always need a law to protect them from the public's lenses—they can just take matters into their own hands. There are plenty of examples of police harassing people who film them, often threatening to arrest them or going ahead and doing it. It's an intimidation tactic, and really just part of a much larger problem, which is that no matter how much a person is in the right (and how much they know it), the police have plenty of ways to make their life hell for a long time before they see justice, if they ever do. This appears to be the case in a recent Chicago lawsuit, where two men allege they were battered, strip-searched and falsely charged for filming a traffic accident caused by a police car.

Benjamin Perez and Bobby Milton sued Chicago and nine police officers in Federal Court.

The men say they were talking outside with some friends in an early morning in August 2011 when a friend rode by on a motorcycle, heading south on Chicago Avenue.

"At the same time, defendant Captain [Kevin Navarro] was driving a marked Chicago Police Department vehicle, an SUV, northbound on South Chicago Avenue in the wrong lane of traffic, heading northbound in the southbound lane," according to the complaint.

"Defendant Captain drove his police vehicle into plaintiffs' friend, who was traveling southbound on his motorcycle, causing plaintiffs' friend to suffer serious injury."

Numerous police officers arrived quickly.

"Defendant officers observed plaintiffs using their cell phones to record the collision scene, and immediately took plaintiff Perez's cell phone and placed handcuffs on him, taking him into custody even though Perez was not doing anything illegal," the complaint states.

"Defendant officers placed Perez in the back of a police car and demanded that Perez show them how to delete the photographs he had taken with his cell phone.

"After plaintiff Perez was taken into custody, plaintiff Milton, who had also been using his cell phone to record the scene, was seated on his motorcycle, when defendant [Officers] Frahm and Hernandez approached him.

"Defendants Frahm and Hernandez grabbed plaintiff Milton, forced him off of his motorcycle, and threw him to the ground.

The suit continues, claiming that the men were taken to the police station and threatened with felony charges if they didn't help officers delete the recording, and one was strip-searched to check for "other cameras and recording devices" (because most people keep a spare iPhone taped to their inner thigh, of course). They are seeking damages for "false arrest, excessive force, unlawful search, conspiracy, false imprisonment, battery, and malicious prosecution".

Now, we don't have the officers' side of the story yet, but the allegations certainly look bad—and it's not hard to find plenty of instances of similar actions by the police. Assuming the complaint is even close to true, hopefully the court recognizes the affront to justice that this kind of police behavior represents, and joins the growing ranks of courts that are affirming the right to record the police and hold them accountable for their actions.

A couple years ago, we wrote about the bizarre case filed by Brownmark Films, who produced the "viral" video "What, What (In The Butt)," against South Park for doing a parody of the video.

The show had actually licensed the song, but the producers claimed that they should have also licensed the video, which is separate from the song (thus, the "singer" was not a part of the lawsuit). Viacom and South Park argued that this was clear parody and fair use and the district court not only agreed, but dumped the lawsuit without a trial on the fair use claim. Some copyright maximalists like to claim that fair use is only a defense to infringement, and thus can only be raised at trial, not earlier in the process. The loss was so complete and thorough, that the court even awarded Viacom legal fees from Brownmark -- something you rarely see in copyright lawsuits, except in the most egregious overreaches.

Brownmark appealed the ruling, and the 7th Circuit has wasted very little time in affirming the lower court ruling, which it calls "well-reasoned and delightful." The appeals court did differ slightly on the reasons a court can dump a case pre-trial when there's clearly fair use, but its quibble is really procedural, concerning which specific process should be used to claim fair use and get a bad case rejected. Either way, the key point stands: you can make your fair use claims upfront, and in truly egregious cases, courts don't have to go through a costly trial. In fact, the court notes that this makes sense, specifically to avoid copyright trolling behavior where defendants feel the need to settle rather than deal with the costs of fighting a bogus lawsuit. This is good news.

In fact, as Paul Levy notes, this may be the first time that an appeals court has specifically used the term "copyright troll," lending additional credence to that phrase:

We noted during oral arguments that such a broad discovery request, surely entailing expensive e-discovery of emails or other internal communications, gives Brownmark the appearance of a "copyright troll."

Similarly, it highlights why such copyright trolling is so problematic:

...infringement suits are often baseless shakedowns. Ruinous discovery heightens the incentive to settle rather than defend these frivolous suits.

This seems like a very useful precedent to cite in other such cases.

The court also goes through the fair use determination and says that not only was it proper to drop the case pre-discovery, but the fair use reasoning was perfectly sound. And here, we learn that the 7th Circuit Justices enjoy themselves some viral videos:

Moreover, the episode places Butters' WWITB video alongside other YouTube hits including, among others, the Numa Numa Guy, the Sneezing Panda and the Afro Ninja.

There's a sentence I never thought I'd see in a judicial ruling. There's also a lengthy footnote that, believe it or not, discusses historical South Park episodes that demonstrates that the character Butters "has repeatedly demonstrated a lack of understanding of sex," and goes on to name the specific episodes, including "Cartman Sucks" and "Stupid Spoiled Whore Video Playset."

No matter what, this ruling is a strong victory for fair use... and just in time for our 1pm Q&A discussion about the book "Reclaiming Fair Use." Perhaps the court was just looking to provide some discussion material for us.

You may recall, that the Australian government, the big entertainment industry players and some ISPs have been meeting down in Australia to come up with a plan to "fight piracy." Of course, the meetings have been so secret that the government won't even reveal who attended them, claiming that it would not be in the public interest. Considering that copyright law itself is supposed to be about the public interest, that seems preposterous, but despite the criticism, the government vowed to continue hosting these secret meetings. However, in a nod to the criticism, they apparently added a "consumer advocate." Just one problem: it turns out that the head of the consumer advocacy group invited to the meeting, the Australian Communications Consumer Action Network, just so happens to also be the chairperson of the Australian Copyright Council, a group which has advocated for stronger copyright laws for decades.

The group has an active role in influencing copyright policy in Australia, and this role sees it advocate strongly for the rights of the creative industries. For example, in a submission to the Federal Government’s Convergence Review earlier this year, the Copyright Council argued that under proposed changes to Australia’s Safe Harbour scheme, it was an important element that Australian Internet service providers should “adopt and reasonably implement policies to avoid liability for authorisation” of copyright infringement, “including termination, in appropriate circumstances, of the accounts of repeat infringers”.

That certainly raises significant questions about just how focused this group really is on consumers' best interests, rather than the legacy entertainment industry's best interests. The report at Delimiter notes that this guy, law professor Michael Fraser, has been involved in multiple other copyright-related issues, including running a copyright collection society:

Fraser also has an extensive background in copyright protection in general in Australia. He has been a director of the Australian Copyright Council since 2001, and was also a founder and CEO of the Copyright Agency Limited for 21 years. CAL is an organisation which seeks to collect copyright fees and royalties for copyright holders in Australia, including journalists (disclosure: Delimiter publisher Renai LeMay has received fees from CAL for re-prints of articles he wrote when employed by the Australian Financial Review).

It's pretty cynical for the Australian government -- and others involved in these secret meetings -- to position themselves as being more open to "consumer advocates" when this is what they end up with. As Delimiter notes:

It’s hard to see what bigger conflict of interest there could be in these talks, than for the chair of the consumer group attending the talks to also be representing the creative industries, and I feel very strongly that Michael Fraser must recuse himself immediately from attending the talks held by the Attorney-General’s Department.

Fraser’s defence in this case would no doubt be that he is attending the talks in his role as director of UTS’ Communications Law Centre. However, it is my strong personal opinion that that it is impossible to separate Fraser’s role at UTS from his other roles chairing both the Australian Copyright Council and ACCAN. This is the same person, after all.

Of all the possible groups representing consumer interests, the government just so happens to choose this one?

Recently, Techdirt wrote about the increasing number of Web sites that were dumping Google Maps and turning to OpenStreetMap (OSM) instead. But that's only one aspect of the increasingly important digital mapping sector: another is for use with in-car satnav systems. So an obvious question is: how is OpenStreetMap doing here?

Looks like the satnav manufacturer TomTom has just provided us with an answer (found via Slashdot):

Despite the positives, recent studies have highlighted some major drawbacks of open source mapping, specifically with regard to safety, accuracy and reliability. In one particular instance, a leading open source map was compared against a professional TomTom map, and shown to have a third less residential road coverage and 16% less basic map attributes such as street names. Worse still, it blended pedestrian and car map geometry, and included 'a high number of fields and forest trails' classified as roads.

As TomTom explains, this is a Bad Thing:

Many drivers rely heavily on satellite navigation for precise directions, and mapping errors can be extremely dangerous, particularly in the case of one-way streets.

Just in case you didn't get the message, TomTom concludes:

Open source mapping certainly has its benefits and can be extremely useful, particularly for pedestrians and in city or town centres. The way that the maps incorporate input from a wide community of contributors can result in impressive international coverage, whilst also driving down costs of production. However, when it comes to automotive-grade mapping, open source has some quite serious limitations, falling short on the levels of accuracy and reliability required for safe navigation.

Unfortunately, TomTom doesn't share its sources for these figures, but Carlo Daffara pointed us to this research from December 2011 that provides a more detailed analysis of the relative merits of TomTom and OpenStreetMap in Germany. This is what it found:

With a relative completeness comparison between the OSM database and TomTom's commercial dataset, we proved that OSM provides 27% more data within Germany with regard to the total street network and route information for pedestrians. On the contrary, OSM is still missing about 9% of data related to car navigation. According to our projection for the future, this discrepancy should disappear by the middle or end of 2012, and the OSM dataset for Germany should then feature a comparative route network for cars as provided by TomTom.

So OpenStreetMap is actually better than TomTom for the total street network and route information for pedestrians. However, the study also considered the issue of street names raised by TomTom and "turn restrictions" -- places where drivers must or must not turn:

In addition to the route network comparisons, we conducted further analyses regarding topology errors and the completeness of street name information. The results showed that the OSM dataset is not flawless; however, the trend shows that the relative and absolute number of errors is decreasing. Thus, it can also be discerned that not only is new data being added to the project database but also quality assurance is becoming a major factor within the OSM community. Our findings with regard to turn restrictions within the OSM database, which are of critical importance to navigation, showed that based on the current development rate and activity, it will take more than five years for OSM to catch up with the information found in the proprietary dataset used in our analysis.

So in Germany at least, TomTom's criticisms about the poorer coverage of street names and "turn restrictions" are probably justified -- at the moment. But what the research clearly suggests is that it is probably just a matter of time before OpenStreetMap becomes better than TomTom in this area just as it already is in terms of basic street coverage.

The fact that TomTom has chosen to highlight this current deficiency in OpenStreetMap shows two things. First, that it is watching the open source alternative very closely, and secondly, that it is sufficiently worried by what it sees to start sowing some FUD in people's minds. But as history has shown with both open source server software and open source encyclopaedias, once vendors of proprietary systems adopt such a tactic against up-and-coming free rivals, it's a clear sign that it's already too late to do anything about it, and that their days of undisputed dominance are numbered.

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