While I enjoy reading The New Yorker when I get the chance, it's rare they cover an issue that I'm deeply familiar with. So it's great to see James Surowiecki jump into the pool with an article about the problems with the US's view towards skilled immigration. It's an issue we've been covering for years, and I still can't figure out why people are against opening our shores to skilled immigrants. It often seems like the arguments against it are a mix of just under the surface racism with a healthy dose of ignorance about economics. Skilled immigrants help expand the pie, creating new companies and new jobs, rather than taking away from the market, as some falsely assume.

The Surowiecki piece is a good one in debunking many of those arguments and highlighting why we really need reform to let in skilled immigrants -- because as we keep turning them away, plenty of other countries have been welcoming them with open arms, meaning that they'll be building businesses that compete with domestic companies, rather than building companies in the US. And, even worse, a large number of those that we're turning away are people who were schooled here. So we're building our own competitors -- who want to stay here and help our economy -- and then sending them elsewhere to compete with us. How does that make any sense at all?

Of course, with unemployment here above eight per cent, too little immigration may not seem like a bad thing: surely we need more jobs, not more workers? But this is a shortsighted view. Economies are not static, with a limited set of resources to go around. As the work of the economist Paul Romer has shown, economies grow faster when there is more innovation, and having more smart people in the workforce is a key driver of innovation. And the quickest, cheapest way to get more smart people is to make it easy for them to move here. What’s more, historically there has been a clear connection between immigration in the U.S. and entrepreneurship, with immigrants creating companies (and jobs) at a disproportionate rate. In one famous study, the social scientist AnnaLee Saxenian showed that Chinese and Indian immigrants alone founded a quarter of Silicon Valley start-ups between 1980 and 1998, while a 2007 study found that a quarter of all technology and engineering start-ups between 1995 and 2005 were founded by immigrants. On a larger scale, more than forty per cent of the companies in the 2010 Fortune 500 were started by immigrants or their children.

Of course, the piece also explains why various bills to fix this (even with bipartisan support) don't seem to be moving: "there is no urgency in Washington on the issue, and voter anxiety about the weak economy and the scarcity of jobs gives politicians an excuse for inaction." Basically, some fear mongering among those who don't like "foreigners" during an election season is holding back good and useful policy, much to our own detriment.

Neil Armstrong's recent passing has reminded lots of folks about the first manned mission to the moon. The whole idea that "we could put a man on the moon" seemed incredible in the 1960's, and the feat is still remarkably difficult -- even if kids today can't fully appreciate the accomplishment. Maybe someday, we'll go back to the moon (and this XKCD will have to be adjusted), but in the meantime, here are just a few links about that historic first moonwalk.

• Neil Armstrong's first words as he stepped on the moon were slightly misheard by everyone on Earth, and audio analysis of the recordings suggests that Armstrong didn't just mis-speak. "That's one small step for *A* man, one giant leap for mankind." [url]
• In 2006, NASA realized that it had lost its original Apollo 11 moon landing videos, but fortunately, archived footage of the moonwalk was found in Australia in 2010. The tapes were restored and digitized -- and hopefully we won't lose them again when nobody remembers what MP4 is. [url]
• President Nixon was prepared for an Apollo 11 disaster with a speech that he thankfully never read to the American public. The "moon disaster" speech is a creepy reminder that space exploration is an inherently risky venture... [url] [page2]

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

It is easy at times to look at some of the stories of the misinformed or abusive on Techdirt, shake our heads at the stupidity of them, and then move on, assuming the issue is passed. This is a misunderstanding of how things work. Rather, when we take into account factors like chilling effects of these cases, they are more like earthquakes in that there is the initial burst of activity followed by the rippling effect and aftershock.

Take, for instance, the story of Lendink Tim Cushing brilliantly outlined a few weeks back. That story helped to create a firestorm in which a large swath of authors were caught up in the backlash of the internet, all because they couldn't be bothered to both know their own contracts and do even a modicum of investigation into the site they decided to lynch. One would think that such a well-publicized backlash, coupled with what was a fairly impressive number of knowledgeable authors who did know their stuff trying to educate the rest, might have a positive ripple effect in favor of Lendink and sites like it. And, perhaps to some degree, it did. But the ignorance of the offending authors also created a negative ripple that has been felt immediately now that Lendink has reopened its site.

From Lendink's Facebook page we learn that they have reopened. And, upon reopening, they almost immediately received what appears to be a bogus DMCA takedown notice.

"Well, I t certainly did not take long before I received my first post-lynch mob DMCA Violation notice. I received the following email from an attorney this morning and promptly responded. I was afterwards advised that they are going to contact Amazon to have the lend status changed and they expect the books to be removed from my site. Yet another example of how people do not understand their agreements with Amazon and fail to realize that Amazon allows affiliate to sell their books even if they are not lendable."

Lendink then promises to post every single DMCA notice they receive, perhaps banking on the previous internet backlash against authors and rights holders being a deterrent. Now, if this notice was just another ignorant author, that'd be one thing. But, a little sleuthing by the Slashdot crowd seems to indicate that this is just a troll.

A few folks dug and it appears that the "lawyer" who issued it is no lawyer at all, and probably an Internet troll (evidence includes not being listed as a lawyer in PA, using a home address, and sending the takedown from gmail). Or just a really bad lawyer.

The point is that these things don't occur in a vacuum. Regardless of whether the takedown notice is from a lawyer or a troll, the ignorance and overreaction of a group of authors has put Lendink in the sights of others either equally ignorant or else nefarious. The ripples continue and the damage done not completed.

As an author myself, I can't tell my peers how liberating it is to not give a damn about anyone who wishes to share my work. It alleviates me of all the drama against readers. It alleviates me of all potential missteps against legitimate services. It alleviates me of the responsibility for any ripple effects those missteps might cause. Have I read every word of the contracts I've signed? Yes. Do I understand every word of them. Of course not. 

Because I don't have to.

Earlier this year, we noted that Twitter was standing up for the rights of one of its users, Malcolm Harris, who had been charged with disorderly conduct during an Occupy Wall St. protest event. The government had sought info on Harris' Twitter account using a 2703(d) order. Twitter told Harris about the request, and Harris sought to quash the order. The courts said that Harris had no standing, because he had no interest in his own tweets, based on a complete misreading of Twitter's terms of service (which actually say the user retains ownership of the content).

Unfortunately, the NY court didn't buy it, and told Twitter to hand over the info. It ignored many of the bigger questions, and basically just says that since Harris tweeted publicly, there is no issue here. But that ignores a few things: (1) not all of the info sought was just what he tweeted and (2) not all of the tweets are available publicly.

Harris has appealed, and it's good to see that Twitter is also appealing, arguing that the court made some significant mistakes. The company basically reiterates its earlier argument that Harris has standing to quash the order, and also some reasonable privacy protection in some of the content sought.

Twitter respectfully submits that its users have standing on three separate and independent grounds to move to quash subpoenas directed to Twitter for their records. First, Twitter’s users have standing under New York law because Twitter’s Terms of Service have long established that users have a proprietary interest in their records. Twitter users own their Tweets and should have the right to fight invalid government requests. Second, Twitter’s users have standing under § 2704(b) of the federal SCA, which provides that a user who receives notice of a subpoena for their account records “may file a motion to quash such subpoena . . . in the appropriate . . . State court.” 18 U.S.C. § 2704(b). Finally, Twitter’s users have standing based on a long line of precedent establishing that individuals whose constitutional rights are implicated by a government subpoena to a third party can challenge the request. Accordingly, the Court should find that Twitter’s users have standing on any one, or all, of these bases.

Defendant’s Tweets are also protected by the Fourth Amendment to the U.S. Constitution and art. I, § 12 of the New York Constitution because the government admits that it cannot publicly access them, thus establishing that Defendant maintains a reasonable expectation of privacy in these communications.

Seems pretty simple and straightforward, though the courts haven't bought this argument yet. Hopefully the appeals court is a bit more enlightened and/or informed.

Last year, in writing about the US government's vindictive lawsuit against whistleblower and former NSA employee Thomas Drake, we also talked about William Binney -- another ex-NSA employee and whistleblower (who was also raided by the feds, though they failed to find anything they could pin on him in a lawsuit). Binney is the mathematical genius behind one of the key algorithms the NSA is using to track everyone. Here's what the New Yorker said about Binner over a year ago:

Binney expressed terrible remorse over the way some of his algorithms were used after 9/11. ThinThread, the "little program" that he invented to track enemies outside the U.S., "got twisted," and was used for both foreign and domestic spying: "I should apologize to the American people. It's violated everyone's rights. It can be used to eavesdrop on the whole world."

Now, the NY Times has something of a following, including a short documentary feature about Binney and his whistleblowing over the NSA's domestic spying. It's really worth watching as it very simply highlights how vast the domestic spying effort is, however powerful it can be -- and also how the NSA dances around the fact that it's not allowed to spy on Americans. They claim that as long as they're not actually looking at the content they record and store directly, it's just collecting the info and not actually spying on people. That is, they think that acquiring all this data is fine, so long as they don't directly query the info. But... as Binney explains, his algorithms (which have likely been updated quite a bit) can still go through all this info and build basic "profiles" of just about anyone. It's really worth watching, if only to wonder how anyone thinks this is acceptable.

I'd embed the video here, except the geniuses over at the NY Times seem to have not figured out how to allow embeds with their video player.

The documentary was put together by Laura Poitras, who notes that thanks to some over-aggressive surveillance she, too, is on a "watch-list," thanks to a documentary she did about Iraq.

I have been detained at the border more than 40 times. Once, in 2011, when I was stopped at John F. Kennedy International Airport in New York and asserted my First Amendment right not to answer questions about my work, the border agent replied, “If you don’t answer our questions, we’ll find our answers on your electronics.”’ As a filmmaker and journalist entrusted to protect the people who share information with me, it is becoming increasingly difficult for me to work in the United States. Although I take every effort to secure my material, I know the N.S.A. has technical abilities that are nearly impossible to defend against if you are targeted.

All of this attention, by the way, is to question why Congress is so intent on re-authorizing the FISA Amendments Act (FAA) which is what gives the NSA a pass on much of this spying, thanks to a "secret interpretation" of the law, which the public is not allowed to even know about. If this sounds like the sort of thing that shouldn't be allowed in a free and open society, you're just beginning to grasp the problem.

For fans, the ability to expand upon and share their understanding of their favorite books is an important past time. People can spend days, months, years talking about their favorite books and eating up any new information that comes their way. Sometimes this new information comes from the original creator, but other times it comes from the fans themselves in the form of fan fiction. Fan fiction is a growing area of fan engagement that many authors and creators have learned to love and embrace.

There are some people, though, who just absolutely hate it. Take Ewan Morrison as an example. In a recent essay on the subject of fan fiction, he doesn't hold back his feelings on the matter.

It may seem like a joke, but for many the rise of fanfic is "the end of the world". Fanfic is seen as the lowest point we've reached in the history of culture – it's crass, sycophantic, celebrity-obsessed, naive, badly written, derivative, consumerist, unoriginal – anti-original. From this perspective it's a disaster when a work of fanfic becomes the world's number one bestseller and kickstarts a global trend.

This is absolutely amazing. While many writers try to hide their disapproval of a subject, Ewan decides to just lay it all out in the open so that you know right off what to expect from his little rant. But what exactly has his panties in a twist? Fifty Shades of Grey.

As we all know, Fifty Shades of Grey, originated as a piece of fanfic based on the Twilight series. Since it hit 31 million sales in 37 countries worried voices are asking: is this the beginning of an era in which fanfic overthrows original creation?

Come on. How can fan fiction produce anything of worth? Am I right? Well, Ewan thinks he is right. He just can't believe that anyone could turn fan fiction into a profitable career. Fan fiction is some horrible blight on the entertainment industry, at least to him. Nothing good can come from it, right?

Ewan decides that now is the time to show off just how little he knows about fan fiction in general. He starts off with a nice bit of revisionist history.

If one sees fanfic as "the work of amateurs retelling existing stories", then one would have to conclude that the number one book in the middle ages – the Bible – was a work of fanfic, as Matthew, Mark, Luke and John were non-professionals retelling the same story about the same character. However, such a definition of fanfic is skewed historically. There were no fans in the middle ages, and there were also no authors.

Isn't this lovely. There were no authors in the middle ages. Since there were no authors, then that means there were no fans. All those works that we look back upon came out of ether for us to enjoy. Since there were no authors and no fans, there was no fan fiction. Fans, authorship, fan fiction, all of this is simply a modern construct.

If we see fanfic as "the reworking of another author's characters" then this form really only appears for the first time in history with the invention of legal authorship in the 18th century through copyright and intellectual property laws, after the invention of the printing press. After all, you can't have derivative works or copies if there are no regulations over what constitutes original works, or separates ownership from theft.

Notice the nice equating of fan fiction with theft. But don't let that distract you from the main discussion points here. You see, authorship never existed until modern copyright law was written and passed in order to create such a role in society. Back then, no one was creative. Everyone just stole ideas from everyone else. It was just one big swirling miasma of derivative characters occupying the same roles. No one exercised any kind of real creativity because of this. It makes sense right? We honor Homer and Shakespeare because they were just thieves who stole the work of others to become famous.

From here, Ewan goes on to share a bunch more about what he thinks of fan fiction and the different types of it. One common theme running through this breakdown is a bitter distaste for pornographic fan fiction. He even lets this get in the way of describing slash fic correctly as one commenter to his rant explains.

The first point is a semantic quibble, but it really gets on my nerves. 'Slash' does not refer to all pornographic fanfiction. There may have been a time when it did. Having spent ten years in fandom, I have never heard it used to describe anything but stories about m/m relationships. (A story does not actually have to have sexual content to be considered slash. A story can be slash without so much as a kiss if it involves a male character who is attracted to another male character.)

When you are revising history to fit your preconceived notions, accuracy can get in the way. So perhaps we can just let this one slide. Maybe not.

Another interesting point in his rant is when it comes to crossover fan fiction. He just can't understand why anyone would want to cross universes to create a story.

The most postmodern and aesthetically bankrupt of all fanfic, is when two well-known franchises from the same genre are "crossed over". So you get BattleStar Gallactica, crossed with Star Trek, which results in the story: Star Trek: Way of the Battlestar – author Carson Napier.

One of the problems with this sub-genre is that narratives and character motivations have to be warped to fit convoluted, meaningless mergings.

That he even makes this complaint shows that he doesn't even realize that even original creators have a hard time justifying the crossover conflict. When was the last time an Avenger vs X-Men comic line actually made sense or just wasn't a shout out to fans of certain characters? What about anything DC vs Marvel. Shoot, the DC vs Mortal Kombat game was one big convoluted meaningless merging. And all of those were authorized mergings. If the original creators have such a hard time making a crossover meaningful, why hold fans up to a higher bar?

Then he jumps right back into his absolute hate of Fifty Shades of Grey. After all, that is what spawned this rant, so he can't let it off easy.

Fifty Shades is actually a very generic work of Twilight fanfic from amongst tens of thousands already created. It is, in fact, a piece of "AU het slash Twilight fic", and as we've seen, in all slash fic, sex and sexual violence are the predictable components of the genre.

We should not consider EL James an author in the conventional sense for the same reasons that we wouldn't call someone from before the invention of copyright an author. Rather, her books are like medieval lore – in a sense she doesn't own the content.

To be honest, I haven't read Fifty Shades nor do I have a desire to do so. However, to make the claim that no creativity went into creating the work is beyond ignorant. Despite what he claims, all reports, that I have read, make it pretty clear that it was not simply a location and name change of Twilight. It was massively successful because it was something unique that people wanted. Of course this massive success lets Ewan break into another rant against how it became successful.

The only innovation is not in the story itself but in the delivery system that launched it – Amazon KDP. Without Kindle the book(s) would never have escaped the gravitational pull of fanfic sites and would not have been able to earn their author any money. KDP, has become the Enchanted Duplicator that has monetised fanfic and propelled it into the market. The historic difference, the point we have just crossed, is that now, through the mechanism of epub, fanfic is heading towards becoming the cultural dominant.

Amazon, with its e-publishing service, is what made successful fan fiction possible. Without Amazon, such fan fiction would have been relegated to the various basements and dodgy parlors of the internet. According to Ewan, this outbreak of self publishing is only going to lead to one gigantic mess of fan fiction feeding off each other spawning new works. This is going to be the fall of modern culture.

It is possible that with the enchanted duplication systems of fan-based epub, we might have arrived at a point in history where we've accumulated enough cultural material from the past for fans to remix indefinitely, and as they can now sell this content to each other this becomes a boom industry where none existed before. However, the point where fans become the creators, and a derivative work becomes the new original is also the point at which the culture industries stop needing to create anything new. Fanfic begets fanfic, which then in turn becomes mainstream which then begets further fanfic and so on. When we reach that point our future will not be fifty, but fifty thousand, shades of grey.

What is worth pointing out to Ewan is that we already have this within the established industries. As we have written about many times in the past, everything is a remix of something else. There is no 100% vacuum for created art these days. Someone is inspired by or copies aspects of another person's work. Shoot, some industries are blatant with their remixing of old works. Whether it is endless sequels and remakes of movies, or the dozens of first person shooter games released each year. But this is how culture is built. It is built on the work of those that came before.

Now, if I may add my own little bit of history to the mix, fan fiction, or more accurately derivative works, is an important part of what made our culture what it is today. I am going to bring in two examples of derivative works from the past that had massive impacts on the state of culture today.

The first is Nosferatu. We wrote about this film in the past. Bram Stoker's estate had refused to assign the rights to Albin Grau so that he could make his film. Instead, he went about creating the film anyway, making many changes to vampire lore in the process. Today, much of what we apply to vampire lore comes from Albin's movie not Bram's book. This is example one of the positive cultural impact derivative works can have.

My second example is that of Edison's Conquest of Mars by Garrett P. Serviss (thanks io9 for pointing this out). In this article, Cracked points out six major sci-fi tropes that exist today that have their roots in this unauthorized fan sequel. Of these we have the handheld ray gun, space battles, the space suit, and aliens building the pyramids. If we didn't know better, one would be excused for thinking this book was the result of a time traveling fan of H.G. Wells. Without this book, we may not have had much of what we consider sci-fi today.

So despite what Ewan claims, fan fiction and derivative works can be an important part of the spread of culture. It is how communities are born and grow. Without the ability of fans to expand on the work of their favorite creators, many would become bored as the content would become stale. When they become bored, they stop buying the works of that creator. Why would we want that to happen to creators?

We've talked in the past about how YouTube's ContentID system fails at fair use and the public domain -- whereby it is unable to distinguish public domain material. That has resulted in ridiculous situations, often where large companies with huge catalogs end up shutting down perfectly legal content. Sometimes it's crazy stuff like taking down a video because of birds chirping in the background, but other times it can result in public domain music being pulled down.

Musician Dave Colvin appears to be dealing with the latter, as he noted in a frustrated Facebook post about how the publishing arms of the major labels keep claiming copyright on public domain cover songs that he's been recording and posting to YouTube. The end result is that, even though all of these claims are bogus, YouTube is threatening to take away his ability to monetize his account, and have already disabled it on a public domain song.

I am fed up with YouTube. Several times I have provided evidence that my video "O Little Town of Bethlehem" is a Public Domain song and each time I get an email saying the song is owned by either Warner Chappell or UMPG or Sony. Now they have disabled my being able to earn any money for the number of times the video is viewed. We are only talking about pennies but no one "owns" a Public Domain song.

They now have threatened to totally disable my account from monetizing any of my videos because of multiple "false" claims of ownership. Since there is no way to speak to a human being directly, there will never be a way to convince them of the error of their ways....Fed up!

(And just to cut this argument off before it even begins: you can absolutely make money from public domain material, you just can't stop others from doing the same thing). Again, this isn't the first time we've seen this kind of thing, and it's a situation that YouTube really needs to figure out a solution to.

While there's been a fair amount of focus lately on the legal status of Aereo, the company offering broadcast TV over the internet by setting up a bunch of individual antennas and letting people access them online, there's also the ivi case. ivi, if you don't remember, offered what sounds like a very similar service to stream broadcast TV over the internet (for a fee). However, it used a completely different legal theory, believing it had found something of a loophole in the Copyright Act; namely Section 111 which allows cable providers to rebroadcast content for a compulsory payment to the Copyright Office.

The district court was not impressed, and basically said that ivi was trying to do an impressive tapdance -- defining itself as a cable provider to be able to use Section 111, but then claiming it was not a cable provider under the Communications Act. On appeal, ivi has lost again (pdf and embedded below), as the appeals court went a simpler route, and pointed out that reading the legislative history of Section 111 makes it clear that it was not intended to be used by services over the internet.

While I had bounced around on this earlier, I actually think that the court is probably right here, in terms of what Congress' intent was.

There still are some troubling parts to the ruling, mainly concerning purely faith-based claims by Judge Denny Chin that a service like ivi creates irreparable harm to the TV networks. Chin specifically claims that if ivi streams the videos online it hurts the networks:

First, ivi's live retransmissions of plaintiffs' copyrighted programming over the Internet would substantially diminish the value of the programming.

I don't see how that's true at all -- and it's certainly not obviously true. In fact, it could increase the value of the programming by making it easier and more convenient for more people to watch. Judge Chin tries to back up this statement by arguing that because the TV guys often sell ads targeted at specific segments and times, this could mess with that:

Plaintiffs broadcast their copyrighted programming to various communities at different scheduled times, for example, based on time zone or local network provider. For this reason, negotiated Internet retransmissions -- for example, on Hulu.com -- typically delay Internet broadcasts as not to disrupt plaintiffs' broadcast distribution models, reduce the live broadcast audience, or divert the live broadcast audience to the Internet.

If ivi were allowed to continue retransmitting plaintiffs' programming live, nationally (and arguably, internationally), over the Internet, and without plaintiffs' consent, ivi could make plaintiffs' programming available earlier in certain time zones than scheduled by the programs' copyright holders or paying retransmission rights holders. ivi's retransmissions of plaintiffs' copyrighted programming without their consent thus would devalue the programming by reducing its "live" value and undermining existing and prospective retransmission fees, negotiations, and agreements. ivi's retransmissions would dilute plaintiffs' programming and their control over their product.

But... that makes no sense. If that's true, then one could just as easily make the same argument about VCRs or DVRs. Yes, they disrupt the "traditional" way that a certain industry's business model works, but that doesn't necessarily mean that it's automatically diminishing the value of the original. After all, the TV guys made the same arguments about both VCRs and DVRs and now most of them admit that the DVR has actually helped their business by increasing the value of shows by making them more easily watchable by people. There's no reason to think the same thing wouldn't be true here.

In the end, as we argued from the beginning, the situation with ivi and Aereo (and Zediva and others) is silly. They're all looking for loopholes in the law to do what should clearly be allowed anyway. But because of the ridiculously expansive nature of copyright law, which is allowing legacy players to kill off new technologies, such things aren't allowed. And we end up with results like this, where an interesting concept (even if it tried to jump through crazy legal hoops) is flat out declared to break the law and shut down. Innovation be damned. NBC has to sell you more diapers via the commercials it's always sold in prime time. And you're not allowed to mess with that.

While we're big fans of Creative Commons in general, for many years, we've raised questions about some of the licenses/clauses -- with the NonCommercial one being of particular concern. Almost four years ago, we worried about the very blurry line between what was commercial and what was non-commercial, and how trying to separate them out in a license could lead to serious problems. Two years ago, Nina Paley also argued about significant problems with the NonCommercial licenses, and how they actually hurt Creative Commons itself in the long run by creating branding confusion. In particular, many people think that all CC licenses bar commercial use, even though that's not the case at all.

Given that, it's interesting to see a suggestion over at the website for Students for Free Culture to take this a bit further and suggest that as Creative Commons is exploring its next round of licenses, it's time to get rid of both the NonCommercial clause and the NoDerivatives clause, arguing that they both run counter to the nature of free or open culture:

The two proprietary clauses remaining in the CC license set are NonCommercial (NC) and NoDerivatives (ND), and it is time Creative Commons stopped supporting them, too. Neither of them provide better protection against misappropriation than free culture licenses. The ND clause survives on the idea that rightsholders would not otherwise be able protect their reputation or preserve the integrity of their work, but all these fears about allowing derivatives are either permitted by fair use anyway or already protected by free licenses. The NC clause is vague and survives entirely on two even more misinformed ideas. First is rightsholders’ fear of giving up their copy monopolies on commercial use, but what would be considered commercial use is necessarily ambiguous. Is distributing the file on a website which profits from ads a commercial use? Where is the line drawn between commercial and non-commercial use? In the end, it really isn’t. It does not increase the potential profit from work and it does not provide any better protection than than Copyleft does (using the ShareAlike clause on its own, which is a free culture license).

The second idea is the misconception that NC is anti-property or anti-privatization. This comes from the name NonCommercial which implies a Good Thing (non-profit), but it’s function is counter-intuitive and completely antithetical to free culture (it retains a commercial monopoly on the work). That is what it comes down to. The NC clause is actually the closest to traditional “all rights reserved” copyright because it treats creative and intellectual expressions as private property. Maintaining commercial monopolies on cultural works only enables middlemen to continue enforcing outdated business models and the restrictions they depend on. We can only evolve beyond that if we abandon commercial monopolies, eliminating the possibility of middlemen amassing control over vast pools of our culture.

Most importantly, though, is that both clauses do not actually contribute to a shared commons. They oppose it. The fact that the ND clause prevents cultural participants from building upon works should be a clear reason to eliminate it from the Creative Commons license set. The ND clause is already the least popular, and discouraging remixing is obviously contrary to a free culture. The NonCommercial clause, on the other hand, is even more problematic because it is not so obvious in its proprietary nature. While it has always been a popular clause, it’s use has been in slow and steady decline.

Of course, as they note, the NonCommercial clause is still used pretty frequently -- though often without much thought given to why. The site suggests that perhaps those clauses could actually be rebranded or moved out of Creative Commons directly, to keep CC more focused on true open culture efforts.

It's an interesting proposal all around, and we're already seeing a fair bit of buzz about it. It will be worth watching to see if it really gets any traction.

We've discussed the push to get both major political parties in the US to adopt language around internet freedom in their official platforms. With the RNC Convention happening, there's been some news that they are, in fact, putting in some internet freedom language, but the specifics do matter. The Daily Caller report indicated that the language was based on the manifesto that Ron Paul and Rand Paul released a few weeks ago, which had serious problems (such as arguing that the public domain was a "collectivist plot" and that the end-to-end principles of the internet were also some sort of awful conspiracy). One would hope that cooler heads would prevail.

Of course, at the same time, there are numerous reports saying that the same GOP platform will include significant anti-porn language. The GOP has had anti-child porn language before, which makes sense, but they're expanding it to porn in general. And it's being cheered on by various groups who seem... a little excessively happy about this (you should see some of the press releases I've been getting from groups in favor of this). They argue that porn, in general, is "a major, major problem." And Mitt Romney seems to support this, arguing that "every new computer sold in this country after I'm president has installed on it a filter to block all pornography."

No matter what you think of pornography, it's hard to square the idea of supporting internet freedom (or freedom of speech in general) with mandatory filters. Porn filters already exist and are widely available in the market. For those who wish to put them on their computers, it's not like they have a lack of options. To make them mandatory seems highly questionable, and it's difficult to see how one can argue for both internet freedom and mandatory filters at the same time.

Of course, this is politics that we're talking about, where it's pretty common to hold two completely conflicting viewpoints at the same time. I expect we'll see similar contradictions in a couple weeks when the Democrats hold their convention as well...

Catching up on some older stories, Aaron DeOliveira points us to the bizarre news that the DEA sought (and got) dismissal of a case against someone involved in a online pharmacy prescription drug scam (basically prescribing the drugs without ever seeing the patients) because the DEA was sick of storing all of the evidence, both electronic and paper. How much evidence?

More than 400,000 documents and two terabytes of electronic data that federal authorities say is expensive to maintain....

[....] "Continued storage of these materials is difficult and expensive," wrote Stephanie Rose, the U.S. attorney for northern Iowa. She called the task "an economic and practical hardship" for the Drug Enforcement Administration....

[....] The evidence took up 5 percent of the DEA's worldwide electronic storage. Agents had also kept several hundred boxes of paper containing 440,000 documents, plus dozens of computers, servers and other bulky items.

Two terabytes is enough to store the text of 2 million novels, or roughly 625,000 copies of "War and Peace."

None of this makes much sense. You can pick up a two-terabyte drive for a little over $100 (I was just looking to pick up a couple for a backup system). The fact that it can store 2 million novels is meaningless. The idea that it's expensive to store that much seems silly -- as does the claim that 2 terabytes represents 5% of the DEA's "worldwide electronic storage." I recognize that government procurement is a ridiculous process, but if there's any truth to this, then the DEA is even more dysfunctional than originally believed.

As Scott Greenfield noted in the link above:

The revelations from this motion, if true, are amazing and appalling. Given the scope of electronic data involves in investigations, the claim that two terabytes constitutes five percent of the DEA's storage capacity is laughable. It suggests that they're screwing with us, and have no ability to do 90% of the things they claim or we fear they're up to.

Indeed, while we worry about their creating mirror images of hard drives of thousands of computers, or obtaining digital evidence from hundreds of thousands of cellphones, this isn't conceivably possible if the total storage capacity of the DEA is 40 terabytes. It just can't be.

For a few years now, we'd been noting serious problems with the Computer Fraud and Abuse Act (CFAA), which was supposed to be about "criminal hacking" of computers. That's the theory, at least. Except that various prosecutors had defined it so broadly that they felt basically anything people did that violated a computer use policy or terms of use policy could make you a criminal hacker. It's why prosecutors went after Lori Drew for supposedly "violating" MySpace's terms of service. There was nothing else they could pin on her, so they twisted the law. Of course, that also creates great power for anyone who creates a terms of service agreement, as it makes it easy to turn your users into criminals.

Early last year, we wrote about a very troubling CFAA ruling, which effectively found that if you do anything on a work computer that your employer doesn't like, you're a criminal for violating the CFAA. Yes, by failing to abide by your employer's broad "computer use policy" you could be charged with a being a criminal hacker under the CFAA. That's what happened to David Nosal. He had accessed some information from his employer's computer system -- which he was authorized to access. He wanted to use that info because he was going to a competitor. That's obviously questionable on the ethics scale, but computer hacking? Hardly. Except that the district court thought it was.

Thankfully, earlier this year the 9th Circuit appeals court reversed the ruling, with Judge Kozinski noting that it makes little sense to interpret a statute in a manner that turns "ordinary citizens into criminals."

A few weeks ago, the DOJ (who seemed to love these kinds of cases) seemed to realize that perhaps it was silly to keep arguing against Nosal here, and admitted that it wouldn't ask the Supreme Court to hear the case on appeal, meaning the 9th Circuit ruling stands. While it's good that the DOJ apparently realized that pursuing this any further was a bad idea, it's still ridiculous that it went forward with this theory in the first place, and argued it all the way through the initial appeal. Either way, while Kozinski's ruling is only binding on the 9th Circuit, hopefully other courts will pay attention to the reasoning behind it.

Jon Brodkin, over at Ars Technica, has an interesting discussion about a paper from some researchers suggesting that we could augment first responder communications efforts by letting them make use of the public's WiFi routers. Basically, if I understand the proposal correctly, if turned on, it would make use of your router to try to form an ad hoc mesh network with other, similar routers in the area that, in theory would only be used by those public safety first responders. It's no secret that there are efforts underway to make sure that emergency personnel have better access to communications spectrum, and this is, at the very least, a creative way of attacking the problem.

The theory is that this doesn't impinge on anyone's security, because it would effectively carve out a separate service on the router, not unlike home WiFi routers that offer up different logins for residents and "guests." Of course, theory and reality aren't always one and the same, and Brodkin reached out to Bruce Schneier who raised his concerns:

“The problems are the same,” Schneier told Ars. “Once you build such a system, you have to build the security to ensure that only the good guys use it. And that's not an easy task. It is far more secure not to have the capabilities in the first place.”

That said, if such a system were purely voluntary, and individuals were able to offer up such connectivity for first responders (or even for anyone else), would that necessarily be so bad? I've been skeptical in the past of attempts to create truly comprehensive mesh networks building on people's home WiFi routers, and there hasn't been much success there. But, perhaps there's something interesting in special use cases, such as one involving first responders. I agree with Schneier that there could be some risks, but I'm not sure how they would be much different than running a basic guest access WiFi network that doesn't involve a password. As long as you're not using that network for sensitive and unencrypted info, it seems like a similar level of risk.