Back in March, we noted that while a district court had ordered the US to hand over the evidence it was planning to use against Kim Dotcom, an appeals court had overturned that ruling, and said that the evidence wasn't needed for the extradition fight. Dotcom immediately appealed to New Zealand's Supreme Court, who has now said that it will review that ruling as well, so this case will continue to drag on for some time.

How many law enforcement officers does it take to subdue one intoxicated man? In Bakersfield, CA, it takes nine: seven sheriff's deputies, two CHP officers and a police dog. It also appears that being publicly intoxicated and resisting arrest in Bakersfield is punishable by immediate death in the same county.

At this point, consider everything regarding the beating to be "alleged." After all, we don't have any conclusive evidence of what happened, despite two people filming it (and a handful of eyewitnesses) because law enforcement made sure every recording of the event (except one -- more on that in a bit) was seized as "evidence."

Also, keep in mind that David Silva, the thirty-three year old father of four who was allegedly beaten to death by nine law enforcement officers, was only allegedly intoxicated and violent. Evidence of his crime(s) disappeared along with the footage of multiple cops swinging batons. (I suppose this will be verified when the autopsy results are made public, presumably featuring a full toxicology report.)

Here's an eyewitness account of the beating:

At about midnight, Ruben Ceballos, 19,was awakened by screams and loud banging noises outside his home. He said he ran to the left side of his house to find out who was causing the ruckus.

"When I got outside I saw two officers beating a man with batons and they were hitting his head so every time they would swing, I could hear the blows to his head," Ceballos said.

Silva was on the ground screaming for help, but officers continued to beat him, Ceballos said.

After several minutes, Ceballos said, Silva stopped screaming and was no longer responsive.

The phones used to record the incident were seized by law enforcement as "evidence." As it's highly doubtful the sheriff's department is looking into charging a dead man with a crime, the only "investigation" possible would be a look into the actions of the officers at the scene. This also means the only criminal activity captured on film would be the officers'. Turning over the only copy of evidence to the perpetrators is generally considered to be a terrible idea. But when you've just witnessed nine law enforcement officers beat a man into unconsciousness (and eventual death), your normal citizen is probably going to think twice before telling another officer, "No."

But the witnesses held out as long as they could. The incident happened around midnight. The two witnesses who had recorded the event (a male whose name hasn't been released and Maria Melendez) were called back to their apartment by the sheriff's department. This was at 3 AM. At that point, the officers demanded they turn over their cell phones. They refused to do so without being served a warrant. The officers then detained them in the apartment, telling them they couldn't leave without turning over their phones.

Three hours later, the male turned over his phone, stating he needed to be to work in a couple of hours. The officers detained Melendez for nearly nine hours. The search warrant finally arrived around noon and Melendez relinquished her phone. The two witnesses were told they could pick up their phones the next day. When the unnamed male went to recover his, he found the timeframe had now changed to "months, even years" before he could get his phone back.

Two bits of evidence have made their way into the public, unimpeded by sheriff's deputies with endless amounts of time to waste and rights to violate. The first is a 911 call reporting the beating made by Salinas Quair, Melendez's daughter. This call alerted law enforcement to the fact that the (alleged) beating had been recorded, triggering the intimidating roundup (and detainment) of these witnesses.

There's a man laying on the floor and your police officers beat the [explicit] out of him and killed him," said the woman. "I have it all on video camera."

The woman continued:

"I am sitting here on the corner of Flower and Palm right now and you have one, two, three, four, five, six, seven, eight Sheriffs. The guy was laying on the floor and eight Sheriff's ran up and started beating him up with sticks. The man is dead laying right here, right now."

The second piece of evidence, a security camera recording, was turned over by an individual who (unsurprisingly) has refused to go on camera or reveal his or her name. Here's KERO TV's (Bakersfield) description of the recordings' contents.

The grainy black and white video appears to show the alleged victim, David Silva, 33, lying on the ground. Another person is then seen walking up to Silva and attempting to pick him up. Both men appear to scuffle, and after a few minutes, Silva is seen being struck with an object.

Other cars are seen arriving at the scene with lights flashing on top of them. Several other men are then seen in the video, also striking Silva more than a dozen times with objects. Silva is then seen being taken into custody.

If you click through and watch the footage, at about 4:05 an officer can be seen taking a two-handed swing with a baton. Shortly thereafter, more officers arrive. One of the first to arrive also takes a two-handed swing with a baton. In all, nine baton-swinging officers showed up. A spokesman for the Kern County Sheriff's Office reassures everyone that the officers felt no need to deploy any of their other weaponry, as well as undercounting the number of respondents.

KCSO Spokesperson Ray Pruitt told 23 ABC it took 5 deputies, 2 CHP officers and a K-9 to subdue Silva.

Pruitt said officers were forced to use their batons to arrest Silva but no tazers, pepper spray or guns were used during the altercation.

His count is off. Here are the names of the Sheriff's Department personnel involved in the incident, as released by the Sheriff's Office.

The office did identify the officers involved in the arrest as Sgt. Douglas Sword and deputies Ryan Greer, Tanner Miller, Jeffrey Kelly, Luis Almanza, Brian Brock and David Stephens.

That's seven from the sheriff's department. The names of the two CHP officers have not been released. That's nine altogether, plus a police dog.

One has to wonder, though, how the officers were "forced" to use their batons. Perhaps some force was needed to subdue Silva, but with nine officers responding (and swinging), you'd think the tide would have turned in law enforcement's favor long before Silva lost consciousness. And how much "resistance" did Silva actually offer, considering the first officer on the scene was responding to a call from Kern Medical Center security who reported Silva as "passed out?"

End result: a man loses his life for being intoxicated. Nine officers beat Silva senseless take Silva "into custody," which in this case is synonymous with "attempt CPR and call an ambulance." Ironically, Silva was only a block away from Kern Medical Center, not that it did him any good.

Not content to limit its wrongdoing to a beating, deputies then barge into a home without a warrant and detain two citizens against their will, one of them for nearly nine hours, until the warrant they should have needed just to get in the door at 3 AM finally shows up at noon.

Now, all of the inarguable evidence is in the hands of the same people who would prefer it just went away. It will be tough for them to get away with simply deleting the recordings, but stranger things have happened to evidence that implicates law enforcement officers but has ended up in the possession of law enforcement. The recording can be termed "unrecoverable" or have inexplicably large gaps in the footage. Or the phone may be damaged during "processing." Sometimes, the evidence just vanishes conveniently and a lengthy internal investigation will unwind at a glacial pace until everyone loses interest.

There's a law enforcement problem here, and the problem is with the brand of "enforcement" that bypasses the law entirely. David Silva's death at the hands of police officers conjures up images of similar methods being deployed to subdue a schizophrenic homeless man in nearby Fullerton, CA. Kelly Thomas was beaten by several officers, resulting in a death by "mechanical suppression of the thorax." This one was caught on tape (via security camera), as well as captured more intimately by a microphone worn by one of the officers.

The people who witnessed this beating have nowhere to go. They can't trust the police and they've seen those who recorded the event quarantined in their home until they complied with the officers' requests to turn over their phones. If not for the constitutional violations committed by "law enforcement," the footage would already be publicly displayed. The longer the Sheriff's office delays in releasing this footage, the worse it appears. If this went down as described, there's no way law enforcement can hope to salvage some respect by attempting to downplay or justify the actions of these officers.

Even if Silva was putting up the fight of his life, he was intoxicated and was outnumbered 9-to-1. Any reasonable person would expect a suspect to be subdued before it got to the point where it became life-threatening. But any hopes of a reasonable outcome were discarded the moment that first two-handed swing connected.

One of the key things that has been a major concern to us for many, many years is how much of copyright policy tends to be driven by faith-based claims about what must be best (often this falls into the "more must be better" category), rather than any objective analytical look at actual data and evidence. We were encouraged when the UK's Hargreave's Report did start to look at some objective data when it sought to understand how best to reform copyright in the UK. And we've been hearing encouraging things out of Australia as well. With copyright reform back on the table in the US, and Congress seemingly open to the discussion, having reality-based policy discussions will be more important than ever.

That's why it's actually quite encouraging to see a new report from the US National Research Council that has begun the process of calling for more objective data to inform the upcoming copyright reform debate. You can get the full PDF via the National Academies Press for free. They have an embedding widget which we've placed below as well, though it uses Flash, which is a bit annoying. The effort was funded by a broad coalition of organizations with a variety of different views on the issue, so it's not limited to just one particular view. For example, you've got copyright maximalist organizations like the MPAA and the BSA, but also Google and Pam Samuelson, who tend to take a different view on the appropriate level of copyright protection. There is also support from a number of different government and private foundations, including the National Science Foundation, the Alfred P. Sloan Foundation and the Ford Foundation.

The committee who put together this particular work also has a wide range of viewpoints covered, including Mitch Singer from Sony Pictures, former federal judge Marilyn Hall Patel who presided over the case against Napster, Chris Sprigman (law professor who wrote The Knockoff Economy: How Imitation Sparks Innovation and who has been featured prominently on Techdirt in the past) among a number of other big names with various viewpoints.

While the paper itself doesn't have any answers yet, it does highlight the key questions that we should be trying to answer, and indicates the beginnings of some research being done in that direction, with the likelihood of more to follow. I am a little annoyed that they still refer to things like the public's rights to access and use content as "exceptions" to copyright, because that feels unfairly limiting, but overall the direction of the work is quite encouraging. Here's a list of some of the initial questions they note it would be good to answer, if possible, which gives you an idea of the research areas they're interested in supporting and encouraging:

With respect to changing incentives for creators, distributors, and users, research could help determine

• how the expenses involved in creative expression and distribution differ across sectors and the role of copyright in generating revenues to offset those expenses;
• under what circumstances sources of monetary and/or non-monetary motivation outside of that provided by copyright are effective in motivating creative activity;
• the motivations of various types of users and potential users of creative works, including both infringers and lawful users; the effects of enhanced enforcement remedies on promoting creativity, technological innovation, and freedom of expression; and
• how the costs of distributing creative content are affected by social media and other new technologies.

With respect to the enablers of and impediments to voluntary licensing transactions in copyrighted works, research would help determine

• the significance of transaction costs as barriers to utilization of copyrighted works;
• the extent of problems involving orphan works (whose owners cannot be identified), user-generated content, and collaborative and iterative works;
• what are successful arrangements for managing transaction costs;
• the roles of public and private institutions in facilitating licensing;
• the relationship of transaction costs to legal rules such as compulsory licenses; and
• changes in transaction costs with new technological and business developments.

With respect to the enforcement challenges, research could help determine

• how much is spent by governments and private parties on copyright enforcement;
• against whom enforcement efforts are targeted and what remedies are sought and granted;
• the results of enforcement efforts in terms of compensation, prevention, education, and deterrence;
• how the effectiveness of enforcement efforts is changing with the expansion of digital networks;
• the costs and benefits of current enforcement methods vis-a-vis those associated with proposed new enforcement methods;
• the relative vulnerability of different business models to infringement; and
• the costs and benefits of fair use exceptions and the Digital Millennium Copyright Act (DMCA) safe harbors.

In assessing the balance between copyright protection and the statutory exceptions and limitations to copyright research could help determine

• the costs and benefits of copyright exceptions and limitations in terms of the economic outputs and welfare effects of those individuals, businesses, educational institutions, and other entities that rely on them;
• how copyright and the various categories of limits and exceptions interact with innovative and/or disruptive technologies and platforms; and
• what adverse effects, if any, exceptions and limitations have on copyright holders and their potential to generate economic outputs and welfare effects.

Eventually, research will help inform decisions about key aspects of copyright policy, including

• the appropriate scope of copyright protection;
• the optimal duration of the copyright term;
• the best arrangements for correcting market imperfections that inhibit voluntary licensing;
• appropriate safe harbors and fair use exceptions to copyright;
• effective enforcement remedies for infringing use and the best arrangements for correcting deficiencies in enforcement mechanisms;
• the advisability of reintroducing a formal registration requirement; and
• the advantages and disadvantages of reshaping the copyright regime with different rules for different media.

The paper itself points to the concerns raised over things like SOPA and ACTA as reason to have a more empirical based approach to copyright reform, which is a good sign (and goes against those who insist that the SOPA protests had no real impact). The report goes into a lot more details, including a number of other important research topics as well.

One other point that they raise -- which is a key point we've brought up concerning our own Sky is Rising research -- is the need for those who have this data to be much more open about sharing it for the sake of making good overall policy. Since much of the data is considered "proprietary or subject to trade secrecy and privacy protections," the report outlines ways in which the data might be made available "on reasonable terms to qualified investigators." This, alone, would be a huge step forward in looking at many of the key policy questions above. The lack of real data is a huge impediment to being able to create effective policy.

All in all, it's a very good sign that this is underway, as it should really encourage a much more empirically-driven approach to the inevitable upcoming reform process. I hope that the results of future research driven by this particular effort do, in fact, play a role in any future debates on copyright reform. Moving from a faith-based look at copyright to an evidence-based one is a huge step forward, and long overdue.

On Wednesday, lawyer Morgan Pietz asked Judge Otis Wright if he could file some additional evidence in the big Prenda showdown case. Pietz, of course, is the lawyer who had been representing some of the anonymous Does that Prenda Law was targeting in various cases, and who was the lawyer who successfully convinced Judge Otis Wright that Prenda Law and its associated lawyers were up to highly questionable activities. The key thing was that Pietz pointed out that he had important evidence that Steele has admitted to having an "ownership interest in several of Prenda's clients" including AF Holdings. He also wants to file a response to the ridiculous character assassination of Alan Cooper, as well as the related filings by Team Prenda.

the outrageous attacks made on the real Alan Cooper are shameful. However, they are also easily discredited, and undersigned counsel would appreciate an opportunity to do so. Similarly, the other two declarations submitted by Mr. Duffy and Prenda also have problems, which undersigned counsel would like to briefly address and refute.

Pietz also wants to dig deeper into some of the actual legal issues associated with the cases at hand that go beyond just attorney misconduct, noting that some of these are important issues that shouldn't be lost in the focus on Prenda's conduct.

Not surprisingly, Prenda Law / Paul Duffy very quickly shot back, with a filing telling the court, rather vehemently, that it should not allow Pietz to file such things. It notes that the case itself is now a criminal investigation (interesting...) and thus opposing attorneys from the civil case no longer have a role in the case, because they're not "disinterested prosecutors." It then points out that Pietz is clearly not disinterested. Basically, it argues that Pietz is biased against copyright enforcement (ha!) and is just seeking to "pad his bill." Further, they claim that the evidence is "vague and inadmissable" (which some might interpret to mean "it says stuff we don't like very much, which hurts our credibility.") Very quickly after that, both Paul Hansmeier and John Steele filed "me too!" statements with the court, both saying that they "join" Prenda's objection.

Not surprisingly, these protests went for naught as Judge Wright very quickly approved Peitz's request to file the evidence by Tuesday April 16th. If you hadn't figured it out by now (and unless you've been living under a rock, you have figured it out by now), Judge Wright simply doesn't believe anything coming out of Team Prenda these days.

And, the next filing in the big Prenda showdown has been filed, and it's John Steele's response to the Order to Show Cause (OSC) for why he shouldn't be sanctioned for a variety of misdeeds. Not surprisingly, Steele builds on the previous filings from Paul Hansmeier and from Paul Duffy and Prenda Law. But the crux of his argument: "Judge, you've got nothing on me. There's no evidence I did anything wrong."

Ridiculously, he argues that there's no jurisdiction over him, because despite Brett Gibbs' detailed testimony of how Steele (and Hansmeier) basically ran the entire litigation campaign, that Gibbs' testimony: "lacks specificity regarding Steele's involvement in the subject cases or any California cases, and is otherwise inconsistent or contradicted by others." Amazingly, in support of this, he points to lawyer Jason Sweet's "Perry Mason moment" during the March 11th hearing, in which Sweet noted that Gibbs had claimed to be counsel for AF Holdings. This is really throwing Gibbs under the bus. Sweet's statements were not meant as an exoneration of Steele or Hansmeier (by any means), but rather to show that Gibbs wasn't completely a puppet, but a willing participant in a scheme that was mostly managed by Steele and Hansmeier. Steele goes on to take other Gibbs' comments completely out of context to pretend that Steele had nothing to do with the case (or other cases).

For example, although Gibbs claimed he was supervised by Steele and Hansmeier at Prenda Law, when pressed for specifics about the degree of supervision he received, Gibbs only offered that Steele and Hansmeier gave him authority to file certain cases here. See Dkt 108-5, at 77:8-24. Gibbs' further testimony has revealed he had significant autonomy in handling the cases. See Dkt 108-5, at 77:25-78:4 (claiming Steele and Hansmeier "gave me certain parameters [pursuant to] which I could settle the case myself.");

First of all, that is not the "only" thing Gibbs "offered." He also noted that Steele had the ability to use his email address and made it pretty clear that Steele was calling the shots. As for the "certain parameters" claim, that was Gibbs noting that Steele and Hansmeier gave Gibbs very limited autonomy within the context of controlling pretty much everything else. That's so obvious from the context that it's almost amazing Steele would try to bullshit a judge who clearly knows better.

On various other points, Steele dumps the blame on Gibbs (and a little on Hansmeier). And then we get to the Alan Cooper question. On that point, everyone has been consistent: Steele was the guy who got Cooper's signature. So how does Steele try to avoid being blamed for "fraud on the court" over that? First, he repeats the statement made by others that Cooper's signature is meaningless, since the copyright holder wanted to assign the copyrights, no matter who signed on behalf of AF Holdings. And then he completely avoids the question of whether or not he faked Cooper's signature, by saying, basically, it doesn't matter because it's not a sanctionable offense anyway (what....?) and then takes a dig at Cooper's "credibility." Uh, yeah.

The Court stated: "First, with an invalid assignment, Plaintiff has no standing in these cases." Dkt 48, at 9:8. Apparently re-articulating the same concern, the Court added: "Second, by bringing these cases, Plaintiff's conduct can be considered vexatious, as these cases were filed for a facially improper purpose." Dkt 48, at 9:9-10. As both Gibbs and Prenda/Duffy/ Van Den Hemel noted in their Responses To The OSC, the Court is mistaken about the law in this regard; the signature of the assignee is irrelevant to the validity of the assignment, so long as the assignor signs. See Dkt 49, at 25:9-26:19; Dkt 108, at 11:24-12:9.; see also 17 U.S.C. 204(a). Lastly, the Court stated: "the Courtm will not idle while Plaintiff defrauds this institution."; Dkt 48, at 9:10-11. However, even if the Court were to discount the evidence submitted impugning Cooper's credibility and blame Steele for this "fraud,"; it hardly rises to the level of fraud upon the court recognized by the Ninth Circuit, i.e., "a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication." In re Intermagnetics Am., Inc., 926 F.2d 912, 916 (9th Cir. 1991).

Regarding any other alleged fraud the Court may consider, as Section III above makes clear, except in rare circumstances not present here, this Court is not empowered to sanction Steele or anyone else based on conduct occurring entirely outside of the subject cases and the Central District. Based on its prior statements, the Court may have erroneously felt otherwise before.

I'm sorry, but if anyone believes that the evidence to date impugns Cooper's credibility more than Steele's credibility, they haven't been paying attention. At all.

On the question of hiding the ownership of various shell companies, Steele, amazingly, argues that "the evidence" shows that the Court is wrong to suggest that the folks from Team Prenda own/control the various shell companies:

Disturbingly, the Court's apparent conclusions about the relationships between the persons and entities named in the March 14, 2013 OSC wholly ignores evidence to the contrary. Compare, e.g., Dkt. 69-1, pp. 21:18-2, 38:22-39:15, 40:8-12 (regarding who owns AF Holdings) with Dkt 108-5, at 114:5-8 (I do have the picture, and I know who the client is. We have talked about the client, and the client has been running everything. Yeah, I know who the client is”); see also Dkt 108-5at 19:15-18 (suggesting Prenda law is "controlled by Mr. Steele.")

However, Steele cannot be sanctioned for any of these alleged misrepresentations made to this Court regarding the relationships among the parties and entities named in the Court’s March 14 OSC because Steele has taken no actions nor made any representations to this Court of any kind, nor is there any evidence before this Court that he acted or was otherwise involved in anyone else's alleged misrepresentations to this Court.

This part strikes as the most incredible part of it all. The entire purpose of the April 2 hearing was to answer questions about this very point. And Steele chose not to respond to any questions. And now, in this filing, he's basically claiming "nope, I had nothing to do with it" without presenting any evidence to the contrary. Incredible.

I get the feeling that Judge Wright is not going to react well to this particular filing, which (like Hansmeier's before it) makes statements that clearly are at odds with what nearly all of the evidence has suggested is happening, without providing any actual evidence to support their claims.

Meanwhile, despite not being willing to talk to the court, Steele apparently has no problem talking to some in the press, and has told Xbiz that he "never even heard of the case" until two months ago. That seems rather difficult to believe given Gibbs' statements concerning Steele's involvement in his cases. I would imagine that someone involved in the case will quickly make Judge Wright of Steele's sudden willingness to "talk" and the details of his statements.

Last Friday, Aaron Swartz's lawyers asked the court that had been overseeing his case to lift a protective order on material submitted during discovery, which Swartz's family and lawyers say will help show how bogus the case against him was -- and which they've hinted will show how MIT went way too far in trying to help prosecutors go after Swartz. According to exchanges between Swartz's lawyer, Elliot Peters, and MIT staff (including MIT President Rafael Reif), MIT has argued that such documents should not be revealed because (a) it might violate the privacy of MIT employees and (b) because MIT never intended the info to be public. Peters discovered this after a reporter for the Wall Street Journal forwarded him the following statement from MIT:

The decision to lift the protective order rests with the judge who put it in place. Documents provided by MIT in the Swartz case included individual names and information regarding MIT employees. It is MIT policy and practice to protect employee privacy. MIT provided the documents under the express understanding that they would be protected from disclosure, which is the purpose of the protective order. Given this, we are concerned about any public release of information about individual MIT employees: we will seek to protect their privacy. At the same time, MIT is eager to share important facts about its actions in the Aaron Swartz matter with the public: Professor Hal Abelson has been charged by President Rafael Reif with conducting an analysis that will be made public in the coming weeks.

Peters, quite reasonably, found this statement to be absurd. Especially the part about MIT claiming that it provided the documents in the belief that they would be kept secret. As Peters noted in response, this was obviously untrue.

"This statement is an insult to my intelligence. The documents were provided to the government before any protective order was entered, and directly contrary to this statement, with the express understanding that they would be used in a criminal prosecution', which would lead to a PUBLIC TRIAL, at which time the documents would be offered into evidence and the witnesses would testify, in public. MIT never could have expected these materials not to become public, and I find this statement to be shockingly misleading and insincere."

Around this same time, the Congressional investigation into Swartz's prosecution requested the same information. Given that, Swartz's legal team met with the DOJ to discuss releasing the documents currently under protective order. They agreed to redact certain personal information (phone numbers, emails, home addresses, social security numbers, birthdays), as well as the names of four people who were questioned during the investigation, but who "were not actively involved in either the Government's or any institution's investigation" into Swartz. However, where the conversations broke down was over redacting the names and info of just about everyone else: law enforcement, MIT employees and JSTOR employees.

Swartz's lawyer argues that this information should be public and if the case had gone forward would have been public:

Criminal proceedings in our nation's courts are presumptively public....

As described above, the circumstances in this case have changed dramatically. Perhaps most obviously, with Mr. Swartz's death, there is no longer a case to prosecute and thus no danger that disclosure will impede a fair trial. Mr. Swartz's tragic death has also led to an increase in public interest in both the details of the investigation and prosecution and the reasonableness of prosecutions under the CFAA generally. In its discussions with Mr. Swartz's counsel about modifying the Protective Order, the Government has not, to date, asserted any reliance interest based on the Protective Order. Even if it were to assert such an interest, any Government reliance on the Protective Order's terms is tempered by the fact that it is a blanket order and therefore inherently overinclusive. As this District explained in Bulger, modification of such a blanket order is not unusual. Id. at 54. As a result, the only interest left to be balanced against the significant public interest in access to unredacted documents is the alleged privacy interest of the government employees and third party individuals named in the discovery materials. For the reasons discussed below, those interests are minimal and are overcome by the public interest in the disclosure of these documents.

They further note that hiding the names of those actually responsible will make the Congressional investigation into what happened much more difficult. Second, the information was provided initially without any expectation that this info would be kept private, so to ask for it to be kept private now makes little sense. In fact, they note that most of the people named, who the government and MIT wish to redact, were likely potential witnesses had the trial been able to move forward. "Consequently, MIT and JSTOR cannot now claim any reliance interest on behalf of their employees in the continued privacy of their emails at the time they produced the emails at issue to the government." They further point out that most of the names in question are already public and highlight press accounts and previous releases of documents in the case that specifically name: "MIT employees Dave Newman, Paul Acosta, Ellen Duranceau, Ann Wolpert, Mike Halsall, and Mark Sillis and JSTOR employee Brian Larsen, identifies their positions, and quotes their email communications." Given that this is already public, it seems odd to further seek to redact their participation.

The argument in the other direction is that the attention this case has received means that names of such folks might lead to threats, but Swartz's lawyer says there has been no evidence presented of any threats to MIT or JSTOR employees -- and even if there was, that wouldn't necessitate blocking out info on all such employees.

Separately, his lawyers point out that redacting law enforcement officials names makes even less sense, given that they are public employees.

Days after this motion was filed, MIT "responded" by agreeing to release the documents itself... but with those same redactions requested by the DOJ. MIT President Reif has tried to spin this as being "in the spirit of openness, balanced with responsibility." Of course, that doesn't make much sense. The DOJ has already agreed that this same level of information should be released, so MIT isn't doing anything here other than making it appear -- falsely -- as if it is making some concession towards openness. On top of that, MIT has said it will not release this info until its overall investigation is over.

Not surprisingly, Swartz's family is not particularly impressed by all of this. In a statement provided to us, Swartz's girlfriend, Taren Stinebrickner-Kauffman, notes that this is misleading not just because MIT isn't doing anything new here, but also in that this isn't MIT's decision at all.

“I welcome President Reif's commitment to transparency. However, this announcement is misleading. MIT does not get to decide in what form the evidence is released publicly. The judge does. MIT has already given this evidence to the courts, at which point it gave up proprietary control over the evidence. President Reif's decision simply foreshadows the inevitability that the judge will release at least this much of the evidence. It sets a low bar, but it does not decide the matter. The redacted documents MIT is releasing only tell one part of the story. Huge amounts of information would still be hidden beneath the protective order -- information that MIT's investigators themselves will not have access to unless the protective order is lifted. If MIT is really committed to transparency and having a full, complete investigation, they need to join the call with Aaron’s lawyers to lift the protective order."

Similarly, Aaron's father, Robert Swartz, noted that this is not a concession by MIT, and that MIT already gave up its rights to these documents, so trying to control how they are disseminated makes little sense.

"This is not a change in MIT's position. MIT could have no expectation of privacy or security since this evidence was given to the government with the understanding that it was evidence in a public trial,” said Robert Swartz, Aaron’s father. “They understood when they gave these documents to the government that they had no rights to privacy or security. MIT should release all internal communications related to this case whether or not they were provided to the government including all internal communications they had related to how they handled it and decided not to ask the government to drop the case."

Stinebrickner-Kauffman also pointed out that "if MIT wished to protect these people's privacy, MIT should not have become involved in the criminal trial to begin with. They made a calculated decision not to nip this case in the bud. They don't get to avoid the consequences now, after Aaron’s death."

There is an extremely dangerous trend to remove proper judicial review from cases involving alleged copyright infringement. Sometimes that means "voluntary" actions by ISPs -- the SOPA and ACTA approach. Sometimes, it means appearances before tribunals by members of the public without adequate legal representation, as is happening under New Zealand's "three strikes" law. And sometimes it might involve a judge, but consist of the latter simply agreeing to requests from the copyright industry, without anyone challenging the grounds for doing so.

That was the case for the most recent action by the British Phonographic Industry (BPI), which represents the recording industry in the UK, as reported by Techdirt last week. Now Andres Guadamuz on his TechnoLlama blog has dug a little deeper into the judge's reasoning for granting these orders, and discovered the following remarkable section:

the evidence indicates that blocking orders are reasonably effective. The effect of the order made in Italy with regard to TPB [The Pirate Bay] referred to in 20C Fox v BT at [197] was a 73% reduction in audience accessing TPB in Italy and a 96% reduction in page views. The blocking order made in Italy in relation to KAT has had a similar effect. As for the effect of the orders made in England in relation to TPB, as at 19 December 2011, TPB was ranked by Alexa as number 43 in the UK, while as at 21 November 2012, its UK ranking had dropped to number 293.

As Guadamuz notes:

I had to look for the source of such astounding information, but I was not able to obtain any reliable resources, and I suspect that it is a figure given by the BPI, which may have been pulled out of the nether regions of their institutional anatomy. On the contrary, I found a report from Torrent Freak claiming the opposite, but this claim should be taken with a pinch of salt.

The use of Alexa is also rather surprising, since it is very rarely quoted these days:

Alexa works by measuring the behaviour of users who have installed a toolbar in their browser. This gives a snapshot of a very narrow demographic, that of Alexa toolbar users. Needless to say, people who are more likely to share files online are less likely to have any sort of toolbar installed on their browsers, particularly one that tracks online behaviour. Similarly, there are studies that prove that Alexa's rankings tend to be wrong for both small and big websites, as they tend to produce some serious mismatches with reality.

And Guadamuz goes on to point out:

In the end, the best way to try to ascertain the effect of ISP blocking orders is to ask the people who are engaged in the practice. This is precisely what was done by Dutch researchers Joost Poort and Jorna Leenheer. They conducted a survey of thousands of Dutch residents about their downloading behaviour. While more than 75% of respondents claimed that they never downloaded any illegal content, those who engaged in the practice replied that they were not affected whatsoever by the blocking of TPB in the Netherlands. Only 3.6% claimed that they are downloading less, and only 1.9% admitted that they had stopped downloading entirely. This seems like a huge failure of blocking orders.

But none of this information was presented in court. Instead, the judge used his own -- or maybe the BPI's -- figures to justify his blocking orders. That's why it's regrettable the ISPs involved did not mount any kind of challenge where they could have offered an alternative view on how effective such orders really are, so that the judge could form a more balanced view of the situation. More generally, this episode shows the dangers of moving to systems where the other side of the copyright story is not fully and fairly presented.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

To date, Kim Dotcom has been having a long string of victories in court in his ongoing battle with the US concerning their attempt to extradite him and try him in the US for creating and running Megaupload. One of the big victories was the district court ruling that the FBI needed to reveal its evidence against Dotcom as a part of the extradition procedure. The US DOJ had been arguing that the evidence only matters for the US trial, and that New Zealand should effectively rubberstamp the extradition. Eventually, you knew there had to be some setbacks in Dotcom's case, and now an appeals court has overturned that earlier ruling, and said that the FBI does not need to reveal its evidence.

In its judgment, the Court of Appeal says extradition hearings are not criminal trials and that the judge deciding whether to order extradition has only to be satisfied there is a case to answer.

The court said the US government had a duty of "candour and good faith" in making an extradition bid, but a summary of the evidence held would suffice.

Dotcom has made it clear that he's going to appeal this to the Supreme Court, so there's still the possibility of at least one more level of review before this is over. I'm sure there are specific reasons for today's ruling, but I have to admit it does seem odd that you can pull someone out of their home country and take them across an ocean without having to actually prove you have an actual case first. The idea that the US government is doing any of this in "good faith" seems like an assumption that isn't particularly supportable in reality.

It looks as if Judge Otis Wright is about done humoring Brett Gibbs and Prenda Law/AF Holdings/Ingenuity 13 LLC's continued legal asshattery. In a lengthy order that reads more like a smackdown, Wright attacks Gibb's abuse of the legal system and thoroughly dismantles his so-called "business model."

First, Wright takes on the evidence Prenda Law presents, consisting of a "snapshot" of possible infringement in progress. He points out that a time-coded screenshot hardly makes the case that actual infringement occurred.

This snapshot allegedly shows that the Defendants were downloading the copyrighted work—at least at that moment in time. But downloading a large file like a video takes time; and depending on a user’s Internet-connection speed, it may take a long time. In fact, it may take so long that the user may have terminated the download. The user may have also terminated the download for other reasons. To allege copyright infringement based on an IP snapshot is akin to alleging theft based on a single surveillance camera shot: a photo of a child reaching for candy from a display does not automatically mean he stole it. No Court would allow a lawsuit to be filed based on that amount of evidence...

And as part of its prima facie copyright claim, Plaintiff must show that Defendants copied the copyrighted work. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). If a download was not completed, Plaintiff’s lawsuit may be deemed frivolous. In this case, Plaintiff’s reliance on snapshot evidence to establish its copyright infringement claims is misplaced. A reasonable investigation should include evidence showing that Defendants downloaded the entire copyrighted work—or at least a usable portion of a copyrighted work. Plaintiff has none of this—no evidence that Defendants completed their download, and no evidence that what they downloaded is a substantially similar copy of the copyrighted work. Thus, Plaintiff’s attorney violated Rule 11(b)(3) for filing a pleading that lacks factual foundation.

TorrentLawyer summarizes Wright's opening salvo as laying down two rules via case law, ones that will adversely affect copyright trolling in California, and which could affect proceedings elsewhere:

RULE 1. IN ORDER TO SUE A DEFENDANT FOR COPYRIGHT INFRINGEMENT, YOU MUST PROVE THAT THE DEFENDANT DOWNLOADED THE ENTIRE COPYRIGHTED VIDEO.

RULE 2. A “SNAPSHOT OBSERVATION” OF AN IP ADDRESS ENGAGED IN DOWNLOADING AT THAT MOMENT IS INSUFFICIENT PROOF OF COPYRIGHT INFRINGEMENT

This sort of lawsuit has almost always relied on little more than a snapshot and an IP address as "evidence," the latter of which has been shot down by multiple courts for its inability to correctly identify alleged infringers. Now, Wright is throwing out Gibb's precious bundle of snapshots as well.

Wright tackles the IP address issue next, under a heading titled "Lack of reasonable investigation of actual infringer's identity." He points to earlier explanations by the plaintiffs as to how they arrived at the identity of the alleged infringer and picks apart their "methodology." Here's Ingenuity 13 LLC's explanation of their deductive process.

Though the subscriber, David Wagar, remained silent, Plaintiff’s investigation of his household established that Benjamin Wagar was the likely infringer of Plaintiff’s copyright. As such, Plaintiff mailed its Amended Complaint to the Court naming Benjamin Wagar as the Defendant in this action. (ECF No. 14, at 2.)...

In cases where the subscriber remains silent, Plaintiff conducts investigations to determine the likelihood that the subscriber, or someone in his or her household, was the actual infringer. . . . For example, if the subscriber is 75 years old, or the subscriber is female, it is statistically quite unlikely that the subscriber was the infringer. In such cases, Plaintiff performs an investigation into the subscriber’s household to determine if there is a likely infringer of Plaintiff’s copyright. . . . Plaintiff bases its choices regarding whom to name as the infringer on factual analysis. (ECF No. 15, at 24.)

"Factual analysis?" Really? Wright calls it for what it is.

The Court interprets this to mean: if the subscriber is 75 years old or female, then Plaintiff looks to see if there is a pubescent male in the house; and if so, he is named as the defendant. Plaintiff’s “factual analysis” cannot be characterized as anything more than a hunch.

Wright gives Ingenuity 13 LLC several suggestions on how to narrow this list of suspects down, including "wardriving" to check whether the WiFi connection in question is open, whether several downloads have occurred at the same IP address, or just a good old-fashioned stakeout.

Such an investigation may not be perfect, but it narrows down the possible infringers and is better than the Plaintiff’s current investigation, which the Court finds involves nothing more than blindly picking a male resident from a subscriber’s home.

This sentence is damning enough, but the followup is the killer:

But this type of investigation requires time and effort, something that would destroy Plaintiff’s business model.

Wright notes the difference between criminal and civil suits that rely on IP addresses for identification. In criminal proceedings, the court usually can rely on the fact that an actual investigation has taken place prior to the charges being brought. In a civil case, the court has no such guarantee, but that doesn't mean the judicial system has to entertain these claims.

[W]hen viewed with a court’s duty to serve the public interest, a plaintiff cannot be given free rein to sue anyone they wish—the plaintiff has to actually show facts supporting its allegations.

Back to TorrentLawyer with another addition to California federal court case law and another blow to trolling-as-business-model.

RULE 3. BEFORE SUING A DEFENDANT FOR COPYRIGHT INFRINGEMENT, YOU MUST DO A “REASONABLE INVESTIGATION” TO DETERMINE THAT IT WAS THE NAMED DEFENDANT WHO DID THE DOWNLOAD, AND NOT SOMEONE ELSE WITH ACCESS TO HIS INTERNET CONNECTION.

All in all, this smackdown is going to make copyright trolling in California a rather unprofitable venture. Expect to see some venue-shifting in the future. Unfortunately for Ingenuity 13 LLC, it's already entrenched in a losing battle, and it's going to get even worse. Wright also had some choice words for Brett Gibbs' misconduct. Two allegations stem from his failure to comply with the Court's orders to cease discovery. Gibbs first told the court the plaintiffs had not obtained any information about the subscribers in question, before later regaling the court with tales of its efforts to obtain the forbidden information when responding to Orders to Show Cause.

The third allegation is more serious, alleging fraud on the court. This circles back to the mysterious "Alan Cooper."

Upon review of papers filed by attorney Morgan E. Pietz, the Court perceives that Plaintiff may have defrauded the Court. (ECF No. 23.) At the center of this issue is the identity of a person named Alan Cooper and the validity of the underlying copyright assignments. If it is true that Alan Cooper’s identity was misappropriated and the underlying copyright assignments were improperly executed using his identity, then Plaintiff faces a few problems.

First, with an invalid assignment, Plaintiff has no standing in these cases. Second, by bringing these cases, Plaintiff’s conduct can be considered vexatious, as these cases were filed for a facially improper purpose. And third, the Court will not idle while Plaintiff defrauds this institution.

Wright then orders Gibbs to show cause why he should not be sanctioned for this misconduct, while declining to extend the sanctions to AF Holding and Ingenuity LLC -- based on Gibbs' "fiduciary interest" in the plaintiffs and the likelihood that the plaintiffs are "devoid of assets."

Wright gets in a little dig at the still-nonexistent Alan Cooper:

If Mr. Gibbs or Mr. Pietz so desire, they each may file by February 19, 2013, a brief discussing this matter. The Court will also welcome the appearance of Alan Cooper—to either confirm or refute the fraud allegations.

Things were already looking pretty grim for Brett Gibbs, but the worst may still be on the very near horizon:

Based on the evidence presented at the March 11, 2013 hearing, the Court will consider whether sanctions are appropriate, and if so, determine the proper punishment. This may include a monetary fine, incarceration, or other sanctions sufficient to deter future misconduct. Failure by Mr. Gibbs to appear will result in the automatic imposition of sanctions along with the immediate issuance of a bench warrant for contempt.

What started out for Gibbs and co. as a route to easy money has morphed into possible jail time and a complete undermining of the "business model" Prenda Law, AF Holdings and Ingenuity 13 LLC hoped would make them, if not actual millionaires, at least slightly richer. And so another chapter of the Gibbs/AF Holdings/Prenda Law saga concludes, leaving us with the sort of cliffhanger that only those whose names haven't been listed above will enjoy seeing played to its conclusion.

We've seen plenty of stories here dealing with law enforcement's general displeasure with having their actions captured on camera by citizens (with one rare, exemplary exception). An odd stance to take, considering most law enforcement officers are recording a majority of their interactions with the public -- except when it's more convenient not to. Scott Greenfield runs down the details of another case where a state trooper's camera was used selectively to "throw out" incriminating evidence.

The virtue of having a video of police encounters has been proven over and over, whether because it belies the allegations of a crime or proves them. But then, sometimes the guy with his finger on the dashcam's "on" button may not want evidence of what is about to happen. Via NJ.com:

Allen Bass, 50, sued Trooper Gerald Dellagicoma and others in 2009, claiming they punched and kicked him multiple times, causing him to urinate on himself, after he complied with their commands to get off his bicycle at Ellis Avenue and Clinton Avenue in Irvington a year earlier.

[Bass] was riding his bike July 10, 2008, in Irvington when Dellagicoma and other troopers who were on patrol in the area got out of their patrol cars and ordered him to stop. Bass claimed he laid on the ground chest-down and spread his arms and legs.

Troopers allegedly then punched and kicked him before arresting him. Bass was charged with drug possession, resisting arrest by flight and resisting arrest by force, court documents show.

Ultimately, the charges against Bass were dropped because the officers failed to show up in court. That, in and of itself, doesn't necessarily indicate any sort of irresponsibility or maliciousness on behalf of the troopers involved. But one of State Trooper Dellagicoma's actions during the incident certainly does.

Court documents show Dellagicoma, who joined the force in 2001, failed to activate his patrol car camera and was suspended without pay for 30 days, but only served 15 days of that suspension.

And this wasn't an isolated incident.

Records show Dellagicoma was reprimanded several times prior to the incident for the same infraction.

In fact, Dellagicoma is named in another federal civil suit for basically the same actions:

In another federal civil lawsuit, Salah Williams of Newark, an African-American, claims he was a victim of racial profiling, excessive force and malicious prosecution when Dellagicoma allegedly assaulted, maced, arrested and charged him for no reason while walking near his store in the city... Similar to the Bass case, Dellagicoma also failed to activate his patrol car camera and appear in court, resulting in the dismissal of the charges against Williams.

This is a big problem. As Greenfield points out, New Jersey State Troopers are required to record every interaction with the public.

What makes this special is that in New Jersey, there is a requirement that arose from the racial profiling scandal that rocked the Turnpike, that all encounters with State Troopers be videotaped. The state was kind enough to put cameras in cruisers. Never again would a trooper be falsely accused of profiling a driver just because he was black. (This is known as the "black plus" theory of profiling.)

The bigger problem is the handling of those who choose to grant themselves exceptions to this requirement. The offense is treated as a minor infraction, punishable by a written reprimand or a short suspension -- neither of which are severe enough to make troopers like Dellagicoma reconsider hitting the OFF switch when it suits them.

The only way an incentive system works is to make the cost of noncompliance greater than the cost of compliance. Apparently, a written reprimand and a few days suspension doesn't cut it. And when it happens repeatedly, it is clearly failing to serve as a deterrent. That's not good enough.

The efficacy of video depends on its actually being used, in every instance and including the entire encounter. Anything less reduces it to a game, where the police make the rules, and the rules will not be good for the other side.

Citizens aren't going to be on hand to record all of these interactions, although each passing day provides more and more documentation captured by the public, many of whom put themselves in harm's way to secure this footage. And it's a sign that the system is pretty screwed up if "recording the police" often equates to "putting yourself in harm's way."

This single incident cost New Jersey taxpayers $50,000 and did more damage to the already-questionable reputation of NJ state troopers. All it cost Dellagicoma was a single paycheck, leaving him free to "fail to activate" his camera again and again as the situation suits him.