A few years back we talked about how the concept of the "uncanny valley" could be applied to targeted advertising. Of course, the general concept of the uncanny valley is usually discussed in the field of robotics. It's the notion that people are comfortable with robots that clearly look like robots, but at a point where they become too similar to humans, but not actually human-like, people feel rather uncomfortable. However, if a robot appears fully human, then people go back to being comfortable with them -- even to the point of identifying with them and feeling empathy for them. The problem is the area where they're "too human" but just different enough to just... feel "off" that somehow makes it "creepy." As we noted the same thing really was kind of true for targeted advertising. As advertising gets more "targeted" it seems to creep people out, because they feel like they're being spied on.

A perfect example of that is seen in this recent NYTimes Magazine piece, talking about the details of how Target mines its purchasing data to figure out who's pregnant and when they're due. And it's not because they're buying diapers or something like that:

The only problem is that identifying pregnant customers is harder than it sounds. Target has a baby-shower registry, and Pole started there, observing how shopping habits changed as a woman approached her due date, which women on the registry had willingly disclosed. He ran test after test, analyzing the data, and before long some useful patterns emerged. Lotions, for example. Lots of people buy lotion, but one of Pole's colleagues noticed that women on the baby registry were buying larger quantities of unscented lotion around the beginning of their second trimester. Another analyst noted that sometime in the first 20 weeks, pregnant women loaded up on supplements like calcium, magnesium and zinc. Many shoppers purchase soap and cotton balls, but when someone suddenly starts buying lots of scent-free soap and extra-big bags of cotton balls, in addition to hand sanitizers and washcloths, it signals they could be getting close to their delivery date.

As Pole's computers crawled through the data, he was able to identify about 25 products that, when analyzed together, allowed him to assign each shopper a "pregnancy prediction" score. More important, he could also estimate her due date to within a small window, so Target could send coupons timed to very specific stages of her pregnancy.

But, of course, Target then appears to have run into the "uncanny valley" problem of having just enough info to target ads... but doing so in a way that feels creepy:

"If we send someone a catalog and say, 'Congratulations on your first child!' and they've never told us they're pregnant, that's going to make some people uncomfortable," Pole told me. "We are very conservative about compliance with all privacy laws. But even if you're following the law, you can do things where people get queasy."

About a year after Pole created his pregnancy-prediction model, a man walked into a Target outside Minneapolis and demanded to see the manager. He was clutching coupons that had been sent to his daughter, and he was angry, according to an employee who participated in the conversation.

"My daughter got this in the mail!" he said. "She's still in high school, and you're sending her coupons for baby clothes and cribs? Are you trying to encourage her to get pregnant?"

The manager didn't have any idea what the man was talking about. He looked at the mailer. Sure enough, it was addressed to the man's daughter and contained advertisements for maternity clothing, nursery furniture and pictures of smiling infants. The manager apologized and then called a few days later to apologize again.

On the phone, though, the father was somewhat abashed. "I had a talk with my daughter," he said. "It turns out there's been some activities in my house I haven't been completely aware of. She's due in August. I owe you an apology."

Target appears to have recognized just how creepy this appeared -- and once they discovered that the reporter was working on this story they cut off his access to the researcher and wouldn't talk to him at all, other than to make bland PR statements about "delivering outstanding value," and, later, to try to convince him not to publish his story.

However, there are indications that Target tried to cross the uncanny valley.... by making the extremely targeted advertising appear more "life like" by not being "too perfect." That is they still sent targeted ads, but mixed them in with unrelated ads, so people wouldn't realize how targeted they were:

"We have the capacity to send every customer an ad booklet, specifically designed for them, that says, 'Here's everything you bought last week and a coupon for it,' " one Target executive told me. "We do that for grocery products all the time." But for pregnant women, Target's goal was selling them baby items they didn't even know they needed yet.

"With the pregnancy products, though, we learned that some women react badly," the executive said. "Then we started mixing in all these ads for things we knew pregnant women would never buy, so the baby ads looked random. We'd put an ad for a lawn mower next to diapers. We'd put a coupon for wineglasses next to infant clothes. That way, it looked like all the products were chosen by chance.

"And we found out that as long as a pregnant woman thinks she hasn't been spied on, she'll use the coupons. She just assumes that everyone else on her block got the same mailer for diapers and cribs. As long as we don't spook her, it works."

I'm sure that this disturbs some people, who may sense that there's "trickery" going on here, but I'm not sure that's the case. It seems like this actually creates something rather useful. After all, perfectly targeted ads actually provide useful information in that it's ads/deals/coupons targeted for exactly what we need, such that we'll actually save money on the key things we want. That's a benefit to consumers. But if it's done in a way that doesn't feel as creepy, then there aren't those lingering concerns of being tracked -- and that seems a more reasonable fear.

One of the key problems with ACTA is the lack of transparency during its negotiation. That this is becoming a big issue in Europe is shown by the fact that the European Commission has tried to dispose of the question twice -- first in its "10 myths about ACTA", which I discussed recently on Techdirt, and now with a page entitled "Transparency of ACTA negotiations":

This factsheet aims at clarifying the way the European Parliament, civil society and all stakeholders have been informed and involved in the negotiation process.

Note that it insists all stakeholders were "informed and involved". I'd like to explore that a little.

One important group are the MEPs (Members of the European Parliament), since they are the representatives of the 500 million citizens in the European Union. The Commission spells out exactly how often they communicated with this group of politicians:

During the ACTA negotiations, the European Commission has shared the following documents with the European Parliament (see annex for full list of documents):

7 successive draft texts of the agreement
3 detailed written reports on the negotiation rounds
14 notes and internal working papers

But there's a problem with those documents, as the Pirate Party MEP Christian Engström highlighted in a blog post back in 2010: MEPs weren't allowed to pass on any information they obtained.

The ACTA negotiators from the Commission came to the European Parliament today, to inform the Parliament about what happened in the last round of negotiations in Luzern.

However, the meeting where the information was to be given was declared “in camera”, i.e.: closed to the public.

At the meeting, I asked if this meant that there were restrictions on how the information given could be used and spread. At first the Commission seemed unwilling to answer this question with a straight yes or no, but after I had repeated the question a number of times, they finally came out and said that I would not be allowed to spread the information given.

In fact, Engström pointed out that the situation was even worse:

According Article 218(10) of the Lisbon Treaty, the Commission has a duty to keep the European Parliament “immediately and fully informed at all stages of the procedure”.

To give oral information in a closed meeting, with no documents at all handed out, hardly qualifies as keeping the Parliament “fully informed”.

It is obvious that the Commission has no intention of living up to its obligations under the Treaty when it comes to informing the Parliament.

That is disgraceful.

So according to an MEP who was theoretically privy to at least some of those drafts, reports and internal working papers supposedly available, the Commission failed even to inform the European Parliament properly. Moreover, what information there was, could not then be passed on to the people the MEPs were representing.

But there was another route for information to be conveyed to them: via non-governmental organizations (NGOs). Here's the kind of transparency the European Commission says it provided to those groups:

the team of negotiators have invited, met and extensively debriefed NGOs, academia and representatives from political parties such as the Pirate Party during the last four rounds of negotiations in Wellington, Luzern, Washington and Tokyo. These meetings took place on side events during the negotiation sessions. The stakeholders had access to the negotiators' teams and issues and concerns raised by Civil Society were discussed and explained.

That sounds pretty good, but as Techdirt reported about the last of those meetings, the reality was rather different:

For the past month, negotiators had been telling the NGOs that the meetings were starting September 27th. Then, they suddenly announced that it would actually start September 23rd, and the NGO meeting would be on the 24th. Except, by the time they announced it, it was too late for most representatives to get to Japan in time (many had booked flights for the following week), and the Japanese government refused to change the time of the meeting. Then, finally, when the meeting was held and only 2 or 3 NGOs were actually able to make it, it wasn't so much a "meeting" as it was lunch -- and, even then, all the ACTA negotiators sat together, leaving no room for the NGOs.

So, it looks like the only channels of communication that the public had were direct ones. Here's what happened there according to the European Commission:

4 stakeholders' meetings -- open to all citizens -- were organised in Brussels:
23 June 2008
21 April 2009
22 March 2010 and
25 January 2011

That's it: one opportunity a year for 500 million people somehow to find out everything that had happened with ACTA -- based on the five documents that were publicly released, three of which were "speaking points" -- and to make their own views heard.

The European Commission is obviously aware that this is a joke, and desperately tries to mitigate its blatant failure to involve ordinary citizens by adding:

During the whole negotiation process, the European Commission has not recruited any consultants, be it from industry or from NGOs or civil society. The European Commission denies having provided any kind of preferential access to information to any group of stakeholders, be it from industry, trade unions or from other stakeholders.

Even if it's true the EU negotiators didn't provide such preferential access, that's irrelevant, because the US side did:

Apart from the participating governments, an advisory committee of large US-based multinational corporations was consulted on the content of the draft treaty, including the Pharmaceutical Research and Manufacturers of America and the International Intellectual Property Alliance (which includes the Business Software Alliance, Motion Picture Association of America, and Recording Industry Association of America). A 2009 Freedom of Information request showed that the following companies also received copies of the draft under a nondisclosure agreement: Google, eBay, Intel, Dell, News Corporation, Sony Pictures, Time Warner, and Verizon.

So the European Commission's claim that "all stakeholders have been informed and involved in the negotiation process" is true only at the most superficial of levels. Yes, MEPs were told minimal information -- but weren't allowed to pass it on to the people they represent; yes, NGOs were able to sit in the same room as the negotiators for an hour or two -- if they managed to overcome the series of obstacles designed to stop them getting there on the right day; yes, members of the public could express their views – but only once a year, by travelling to Brussels at their own expense, and without access to the vast majority of relevant documents.

In reality, the only stakeholders that were truly informed and involved were the copyright industries who were present right from the start. ACTA is simply the implementation of their one-sided demands without any meaningful checks or balances for the benefit of the billion people who will be most affected by it, but who were consistently ignored during its negotiations.

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

You may have heard that the Heartland Institute had some internal documents leaked recently, and noted the irony of the situation. If you don't know, Heartland is well-known in certain circles for its efforts to disprove that smoking causes any harm, as well as its efforts to deny climate change. The "think tank" also has done some telco policy issues, more or less supporting anything that involves not regulating telcos. The irony bit comes from the fact that a couple of years back, when there were some leaks of emails between scientists involved in climate change research, Heartland was one of the leading cheerleaders to push for misreading what was said in those emails to condemn climate change science.

Heartland is insisting that at least one document -- the one that's received the most attention and supposedly outlines the organization's dastardly plans -- is faked. Some observers have made compelling arguments that the document in question is, in fact, faked (and that's from someone who disagrees with Heartland Institute on the key issue of climate change).

I'm not going to comment on the leak or what's in the documents (either real or fake) because that's really not the kind of thing I care about that much. But, I will comment about one key thing Heartland said in its press release about the whole situation... where it effectively threatens to take legal action against anyone who comments on what's in the documents:

The individuals who have commented so far on these documents did not wait for Heartland to confirm or deny the authenticity of the documents. We believe their actions constitute civil and possibly criminal offenses for which we plan to pursue charges and collect payment for damages, including damages to our reputation. We ask them in particular to immediately remove these documents and all statements about them from the blogs, Web sites, and publications, and to publish retractions.

Now, I don't care what you think of Heartland, climate change or anything along those lines. Whether you think it's a wonderful organization or an evil organization... one thing I would hope we could agree on is that threatening people for "commenting" on documents with legal action, even if the documents later turn out to be fake, is not a good idea. I can certainly understand the temptation to try to get people not to comment, but the threat is pretty clearly bogus. The documents -- and the leak of the documents -- even if faked or altered, are still a public interest issue, and it's hard to see how there's any law broken in commenting about what's in the documents. There may be legal issues for whoever leaked the documents, but those who are commenting on them? Sorry, that's just silly.

Chemists routinely use equipment like rotary evaporators, centrifuges, and ultrasonicators to extract, separate, and mix various chemicals in the lab. But, the same equipment can also be used to prepare unique and tasty drinks. Why settle for ordinary? Classic beverages are getting a makeover thanks to the creative use of modern technology. Here are a few examples.

• Manhattan bar Booker & Dax uses molecular gastronomy techniques to give cocktails the "mad scientist" treatment. The bartenders are known to light drinks on fire with a 1,500-degree Fahrenheit red hot poker, extract essences from herbs with a rotary evaporator, clarify fruit juices with a centrifuge, and age wine or whiskey with ultrasonic waves. [url]
• In 2009, Coca-Cola introduced the Freestyle soda fountain, which features a touchscreen interface and more than 100 different flavor options that can be mixed however the user wants. The machines use "PurePour" technology -- originally designed for measuring exact amounts of dialysis and cancer drugs -- and they send data about beverage consumption, peak times, and popular locations to Coca-Cola's Atlanta headquarters, which can order the machines to stop serving drinks immediately in case a flavor is discontinued or recalled. [url]
• In 2011, Pepsi unveiled their Social Vending System, which features a touchscreen interface and allows users to gift a Pepsi drink to a friend, along with a recorded video message. The machine will send a text message to the friend with a special code that they can use to redeem their gift at the nearest Pepsi Social Vending System. [url]
• To discover more food-related links, check out what's floating around in StumbleUpon. [url]  

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

One of the common statements that we heard time and time again from SOPA/PIPA supporters in the last couple months was that all of the many civil liberties groups that worked against the bills were really "Google fronts." The key target in these attacks was almost always EFF -- a group which is pretty widely respected. It's also kind of strange, because looking over the EFF's most recent (public) financial statement (pdf), there isn't much evidence of Google support. Not only is corporate funding only about 15% of EFF's total budget, but Google isn't even listed as a company sponsor in the listing of companies which donated.

Either way, I'm curious how those who continue to insist that EFF is a Google front have to say about EFF's extremely pointed, open letter to Google for its latest privacy failure -- circumventing Safari's privacy settings for millions of users to track web browsing habits of people who specifically opted-out of such tracking.

For what it's worth, this does appear to be a pretty big screw-up on Google's part -- and knowing how quickly some Google haters assume any privacy issue is nefarious and make a big deal of it, I fully expect that Google is going to end up having to pay big time for this mistake. It's worth noting, of course, that at least three other ad companies, including giant WPP, were spotted using the same technique to get around restrictions. But since there's been so much focus on Google and privacy, Google-haters will certainly make quite a lot of noise about this particular issue.

I also absolutely agree with the EFF's statement that Google not only needs to acknowledge that it can do a better job on privacy issues, it should, in fact, be expected to do a lot more concerning privacy issues (though I'm not convinced the "Do Not Track" is really the proper solution). Google's privacy efforts often seem to lag behind its open and consumer-first focus on other issues. I think that's unfortunate.

The EFF doesn't mince words on this:

Google, the time has finally come. You need to make a pro-privacy offering to restore your users' trust.

Internet users worldwide have loved your products for years, and we've often praised your stance on free expression and transparency and your efforts to limit government access to users' information. But when it comes to consumer choice around privacy, your commitment to users has been weaker. That's bad for users, for the future of the Internet, and ultimately, for you. We need to create an Internet that gives users meaningful choice about sharing their personal data, and we need your help to do it.

It's time for a new chapter in Google's policy regarding privacy. It's time to commit to giving users a voice about tracking and then respecting those wishes.

Either way, I'm curious how those who continue to insist that EFF is merely a front group for Google respond to issues like this one -- which is probably an even more "core" issue for Google. EFF has been on the opposite side of Google on privacy issues in the past. Isn't it possible that EFF is an entirely separate organization from Google and has its own views on a variety of issues -- some of which align with Google and some of which do not? One would hope that issues like this would put to rest the silly claims that EFF's involvement in the SOPA/PIPA fights were really just about acting on behalf of Google.

We recently wrote about a new effort in Canada around "lawful access" (a nice way of saying internet spying by government). The really ridiculous part was that the Public Safety Minister pushing the bill, Vic Toews pulled out the ridiculous logical fallacy that anyone against the bill was "for child pornography." That, of course, is insane. But, because this is the internet, it responds as it does best, by creating a meme. Tons of people on Twitter are revealing all sorts of random information with Toews on Twitter using the hashtag #TellVicEverything. Apparently a bunch of people are leaving him voicemails as well. Watching the Twitter feed is fun, as you find out when people go to sleep, when they wake up and when they have trouble sleeping. Then there are some amusing confessional tweets, like the person who confesses using zucchini instead of meat in spaghetti sauce, or the person who admits to lying to a telemarketer when asked if he's "busy." Who knows if Toews will back down, but when you become a national joke, perhaps it's time to rethink your legislative strategy.

As you recall, last month's SOPA/PIPA protests were followed the very next day by the US government shutting down Megaupload. While there have been plenty of discussions about the wider implications of the January 18th anti-SOPA/PIPA protests, there's been less analysis about the wider impact of the Megaupload case. Lawyer Philip Corwin has a long (really, really long) article suggesting that the longer term impact will come more from the Megaupload shutdown... and not in a good way.

It is however the viewpoint of this article that the Megaupload indictment will likely be seen in the long run as having a more significant impact on Internet business models and innovation than the withdrawal of PIPA and SOPA — and this would be the case even if those bills had been enacted in some combined form.

The article covers a lot of ground (much of which you'll already be familiar with, if you read Techdirt regularly). But the gist of it is that the details of the indictment significantly blur the lines between what is civil and and what is criminal copyright infringement, and also rely on multiple, very common practices for various cloud service providers. While the US government cheers on the fact that other cyberlockers are changing how they operate, there's significant fear that this will massively alter the "cloud computing" landscape, in that it creates a tremendous amount of uncertainty, where services with perfectly legitimate intent can be accused of criminal activities based on very questionable claims. Perhaps the most ridiculous is the catch-22 situation in which Megaupload got blamed for trying to hide the infringing activity on its site. If it had left it up, it would have been accused of facilitating or inducing infringement, but by making it hard to find, it's accused of conspiracy to hide the activity.

Megaupload removed the search feature on its website, which had previously been of assistance to those looking for infringing content. The indictment alleges that this was done to disguise the company's willful infringement, much of which was purportedly facilitated by other "linking" websites operated by unrelated third parties. But if the search feature had not been removed, wouldn't that have been cited as evidence of facilitating infringement? Similarly, the indictment notes that "browsing the front page of Megavideo.com does not show any obviously infringing copies of any copyrighted works; instead, the page contains videos of news stories, user generated videos, and general Internet videos in a manner substantially similar to Youtube.com", but then cites "the most-viewed videos in the Entertainment category on Megavideo.com… has at times revealed a number of infringing copies of copyrighted works that are available from Mega Conspiracy-controlled servers" as evidence of knowing facilitation of commercial infringement.

Damned if you do, damned if you don't.

But the bigger fear is about the kinds of businesses that are put at risk under the vague standards used in the indictment. The article talks about popular services like Dropbox, which could be accused of many of the things in the Megaupload indictment. It also talks about YouTube, and how -- if these kinds of enforcement actions were popular five years ago -- we might not have had a YouTube any more:

A recent New Yorker profile of YouTube's evolution makes one wonder if the "YouTube Conspiracy" might not have been criminally targeted if this enforcement tactic was being employed when it launched in 2005, especially since e-mails between its principals indicated a deliberate toleration of infringing content to build traffic — e-mails that bear a distinct resemblance to some of those reproduced in the Megaupload indictment.

Instead, as Corwin points out, YouTube "has become a treasured piece of contemporary Americana."

For all the talk of how SOPA and PIPA were bad for changing the way the internet would have to work, it's worth noting the very very real impact of the Megaupload takedown on the potential development of various new services and business models. The risks and uncertainty increased massively on January 19th, and not in a good way for anyone.

It appears that the famed "revolving door" between government and the big entertainment industry lobbyists continues. The MPAA has announced four new hires -- all of whom come from roles within the government, and who raise significant questions about who they were working for when they were in their government positions.

Alex Swartsel, who has worked for several Democratic senators and campaigns, is the new director of global policy. Brian Cohen, who has worked in the Justice Department and for Immigration and Customs Enforcement, is the new director for external state government affairs.

Lauren Pastarnack, who has worked on the Senate Judiciary Committee, is the new director of government affairs. And Kate Bedingfield, who joins the MPAA from the White House Communications Office, is the new director of strategic communications.

Two of these aren't huge surprises. The Pastarnack hire hit the news a few months ago, when people noticed that she jumped from being a point person on PIPA to working directly for the MPAA. Swartsel's name may also be familiar. We tangled with her last summer, when she bizarrely took to the MPAA's blog to attack reporter Janko Roettger for accurately predicting that bad economic news might lead people to seek out unauthorized sources of movies, rather than paying through the nose for authorized versions. Now, the MPAA's former boss had said the exact same thing, but according to Swartsel it's somehow "intellectually dishonest" to point out what might happen. Swartsel also was the one who flat out mocked the concerns of tech entrepreneurs concerning SOPA and PIPA. Turns out she did all this as a "consultant" to the MPAA -- and they thought she did such a bang up job that they've hired her full time as "director of global policy."

Given her former attacks on reporting the truth and concerns of the tech industry, it seems pretty clear that the MPAA is not moving in the direction of their promised open conversation with the tech industry and internet users concerning solutions to infringement. It sounds like they're moving in the other direction.

A further indication of that, of course, is the hiring of Cohen, direct from the MPAA's private police force... better known as ICE. Remember, when ICE launched Operation In Our Sites to illegally seize and censor websites, it did so directly from Disney's headquarters. The close relationship between ICE and the MPAA should worry everyone. The fact that there's a revolving door in employment between the two should be cause for an investigation concerning possible corruption. But, of course, that won't happen... when that kind of revolving door also includes someone like Bedingfield, coming straight out of the White House.

It's stories like this that make you realize why the MPAA is so powerful. It knows that it has a strong hold on government employees, because it's offering a bunch of them high paying jobs once they leave their government positions. And, as Jack Abramoff has explained, the best trick in a lobbyist's pocket is to tell a government employee that there's a job waiting for them any time in the future -- because they're technically working for the lobbyist from that moment forward.

The federal government has been paying lip service to the idea that it wants to encourage new businesses and startups in the US. And this is truly important to the economy, as studies have shown that almost all of the net job growth in this country is coming from internet startups. Thankfully some politicians recognize this, but the federal government seems to be going in the other direction. With the JotForm situation unfolding, where the US government shut down an entire website with no notice or explanation, people are beginning to recognize that the US is not safe for internet startups.

Lots of folks have been passing around this rather reasonable list of activities for US-based websites:

Today's sysadmin todo list:

0. Get corporate membership with EFF.

1. Identify all applications with user-generated content.

2. Move all associated domains to a non-US based registrar.

3. Migrate DNS, web serving and other critical services to non-US based servers.

4. Migrate yourself to a non-US controlled country.

I'm sorry for US sites and users. Your government is hell-bent on turning the internet into a read-only device like TV, easily regulated and controlled. The population will be required to sit quietly and keep their eyes glued on the screen so they don't miss the ads, with any infringers deemed terrorists and pedophiles and thus deserving of summary punishment by DHS squads.

Hopefully the internet will route around the damaged segment, and the rest of us can continue to enjoy the amazing interactivity it has brought our society.

What's amazing is the "what's the big deal?" attitude the government has taken to all of this. For most of us, this situation is shocking. The US government should never be able to flat out shut down a business with no notice or explanation, only to say "sorry" a couple days later. It's done this in the past and insisted that it would be more careful in the future. So far, it doesn't appear to be living up to that promise. While these may be "mistakes," the wider impact should be frightening to federal officials. They're now actively scaring startups away from US businesses at a time when they should be doing exactly the opposite.

As Techdirt noted recently, policy-making behind closed doors is no longer acceptable. Until the end of the 20th century, it was hard for the general public to make their views heard, and so governments didn't really bother asking them. But that's no longer the case: the Internet has blown government wide open, and there is now no excuse for not consulting as widely as possible -- including the public -- before passing legislation or signing treaties.

That's a lesson that the Australian government seems not to have learned yet, judging by the following story:

The Federal Government has reportedly held a second closed door meeting held between the content and telecommunications industries to address the issue of illegal file sharing on the Internet through avenues such as BitTorrent.

The first meeting took place at the end of last year, and is part of the content industries' attempt to circumvent the Australian courts' refusal to order ISPs to act as a private copyright police force.

According to another report, the argument now seems to be mainly about who will pay for a proposed "graduated response" (three-strikes) scheme:

one source familiar with the discussions said local film industry representatives are concerned that the cost of operating graduated response schemes is too high.

Another source said the content industry’s response was to try to push the cost of managing infringement notices -- and an appeals mechanism for customers who felt they had been wrongly accused -- onto internet service providers.

Never mind the fact that the content industries not only want this kind of extra-judicial punishment, they want it for free: what's really appalling here is that "three strikes" seems to have been settled upon without any qualms about whether it is fair or would work, or whether it might be a good idea to conduct some research to find out. It's the usual evidence-free policy making that has bedevilled this area for decades. But that's hardly surprising, since the most important stakeholder here -- the public -- wasn't invited to the meetings to offer its views on moves that would have a major impact on using the Internet, on privacy and on civil liberties.

That's not only unacceptable, it's extremely unwise in view of what the Australian government plans to do next:

If the content and internet industries reach agreement on a scheme to deal with copyright infringement, the Attorney-General’s department is expected to put a draft proposal out for public consultation.

Given the way that such a draft proposal is being drawn up, any public consultation is likely to be seen as a sham, since the terms of the debate have already been set. And when the draft with a few token but irrelevant tweaks finally becomes law, guess how much public support that is going to have?

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

We've written multiple times about Kirby Ferguson's excellent Everything is a Remix project that has produced three videos highlighting the problems and history of intellectual property and how copying and derivative works are a core element of culture and invention. He's now released the fourth and final installment in the series, and it's a great summary look at the general problems with intellectual property law today. The key theme is that the theory (treating ideas, inventions, content, etc. as a form of "property" -- in the minds of many copyright and patent system supporters) simply doesn't match up with reality (where almost everything is a derivative work of some sort). What the video does nicely is highlight the hypocrisy of it all. As he notes brilliantly, when we copy (and everyone does copy), we justify it. When others copy, however, suddenly we attack them and vilify them. A perfect recent example of this, by the way, was former NYT executive editor Bill Keller's bizarre defense of the NYT copying and posting a work covered by someone else's copyright, just days after his own column came out in support of greater legal enforcement of copyrights.

As he notes, this is psychologically understandable. It's all about "loss aversion." People feel a sense that they "own" something which they really do not -- and that's often boosted by the concepts of intellectual property that really spread the idea that you can, in fact, own an idea (and, yes, technically neither copyright nor patents apply directly to "ideas," but that's a nuance that most people fail to grasp when they see how content and inventions are considered "owned" under the laws of today).

The video then talks about the continued expansion of copyright laws, and the more nefarious effort to continue to ratchet things up through trade agreements like ACTA and TPP. But he also points out that this is somewhat ironic, since in its early years, the US refused to sign similar trade agreements, and was a "pirate nation" that ignored copyrights from around the globe.

The video doesn't just cover copyrights, but digs into patents as well -- with specific attention paid to broad software patents that do little to contribute any knowledge to the world, but instead take broad concepts and seek to lock them up for the purpose of suing and trying to extract settlements from those actually creating and innovating.

From there he breaks out the original purpose of both copyrights and patents under the US system. In both cases, they were about benefiting the public: to encourage learning or to promote the progress of "useful" arts (inventions). But when the laws fail to do that, then we should see the system as broken and seek to remedy it.

All in all, Ferguson's series is a great introduction to many of the issues we cover around here. I don't fully agree with everything in all of the videos -- and the latest one has a slight undertone suggesting that capitalism and markets in and of themselves are bad (which I think is conflating a few different issues). But overall the videos are fantastic -- and in terms of production quality, it seems like each one in the series is better than the previous one. He keeps maturing as a video maker, which is cool to see. Ferguson is now moving on to a new project, called This is Not a Conspiracy Theory, for which he's raising funds on Kickstarter, so check it out.

We're still waiting for any actual evidence that this new cybersecurity bill is really necessary. An actual description of the real problem being dealt with would be a good start. Instead, we just get pure fear mongering. While some Senators are asking supporters of the bill to slow down and carefully consider the issue, the bill's backers, led by Senator Lieberman seem to be on "full speed ahead" mode -- trying to skip hearings and markups to take the bill straight to the Senate floor for a vote.

In this case, Senator John McCain is urging caution, and pushing back at claims that because totally different cybersecurity bills have been introduced in the past, this one can be rushed:

To suggest that this bill should move directly to the Senate Floor because it has ‘been around’ since 2009 is outrageous," McCain said. "First, the bill was introduced two days ago. Secondly, where do Senate Rules state that a bill’s progress in a previous congress can supplant the necessary work on that bill in the present one?"

Of course, it isn't that McCain is "the voice of reason" here. He's actually pushing for a different bill that will give NSA broad spying powers over the internet. The dispute between McCain and Lieberman is really a long-running territorial dispute -- concerning whether Homeland Security or the Defense Department get to control the "cybersecurity" budget. The Lieberman bill gives the power to Homeland Security. McCain wants to give it to the DoD. Neither seem to want to bother with evidence of the actual need here.

Of course, backers of the bill are falling back on their typical doomsday scenarios to explain why they have to rush and avoid any sort of discussion or evidence:

Sen. Jay Rockefeller (D-W. Va.), Sen. Dianne Feinstein (D-Calif.) and Homeland Security Secretary Janet Napolitano warned the committee there could be grave consequences if Congress does not act to protect cybersecurity.

"Think about how many people could die if a cyber terrorist attacked our air traffic control system and planes slammed into one another," Rockefeller said. "Or if rail switching networks were hacked—causing trains carrying people—or hazardous materials—to derail and collide in the midst of some of our most populated urban areas, like Chicago, New York, San Francisco or Washington."

Yes, and think about how life would suck if someone hacked the road system in West Virginia and turned all roads into cabbage patches? I mean, if we're talking about total hypotheticals with no actual likelihood of happening, that seems just as reasonable a scenario as Rockefeller's. It's pure, insane, unsupported hypothetical fear mongering. Is our air traffic system connected to the internet? I sure hope not. If it is, that's the problem -- not the lack of some cybersecurity bill. We've seen no evidence that the air traffic or rail switching are subject to attack, so creating Hollywood-style scenarios is pretty ridiculous. Is Rockefeller honestly suggesting that the folks who run these systems aren't doing everything they can to secure those systems and that there would be any significant differences if this cybersecurity bill is passed? Somehow I don't think the folks who maintain our air traffic control system are sitting around thinking there's nothing they can do until a cybersecurity bill is in place.

So how about we take a step back, and rather than passing a broad bill based on fear mongering, folks like Rockefeller and Feinstein (hell, or even McCain) produce some actual evidence of a threat? Or is that too hard?

There's been a lot of interest in the story of the Secret Service completely shutting down JotForm.com through a request to GoDaddy. It appears that the suspension is now ending, though it hasn't fully propagated. What's amazing is that no one in the US government (or at GoDaddy) seems to be willing to explain what happened. When GoDaddy completely shut down JotForm.com with no notice, the folks at JotForm had to inquire as to what the hell happened to their entire website. They were merely told to contact a Secret Service agent. That agent then told JotForm she was too busy to respond to them and would get back to them within a week.

Think about that for a second. The US government completely takes down a small business' website and then is too busy to explain why.

JotForm noted that it was willing to cooperate fully if there were specific users that were a problem, but the Secret Service did not seem to care that it had almost destroyed an entire startup's business:

When I contacted the Secret Service, the agent told me she is busy and she asked for my phone number, and told me they will get back to me within this week. I told them we are a web service with hundreds of thousands of users, so this is a matter of urgency, and we are ready to cooperate fully. I was ready to shutdown any form they request and provide any information we have about the user. Unfortunately, she told me she needs to look at the case which she can do in a few days. I called her many times again to check about the case, but she seems to be getting irritated with me. At this point, we are waiting for them to look into our case.

So far, the Secret Service still isn't talking, returning a bland and meaningless statement to press requests:

"We are aware of the incident and we're reviewing it internally to make sure all the proper procedures and protocols were followed."

GoDaddy, similarly, appears to be staying almost entirely silent.

All of this is completely unacceptable. Almost everything about this sets off alarm bells about over aggressive (and potentially illegal) censorship by the US government of protected free speech. We've been seeing a much more aggressive and overreaching effort by US officials against websites over the past 18 months or so, and at some point, they're going to get smacked down by a court who will explain to them the nature of the First Amendment and the fact that you can't unilaterally take down entire websites without recognizing the collateral damage on legitimate web businesses.

Although DMCA takedown notices figure quite frequently here on Techdirt -- especially abusive ones that use the system to remove material covered by fair use or even in the public domain -- the industry that has grown up around them remains somewhat in the shadows. That's what makes the site with the self-explanatory name "Takedown Piracy", found via the 1709 Blog, so fascinating: it offers a glimpse of the world of DMCA takedowns as seen from the other side.

As you might expect, Takedown Piracy sends DMCA notices to sites that it believes are holding copyrighted material belonging to its clients. But what's surprising is the scale of the takedown: one recent post on the site talks of "hammering these sites with DMCAs", and later goes on to give an idea of what that entails:

Once word got around that [the #3 adult torrent site] Cheggit was complying, myself and at least one other removal company began monitoring the site daily resulting in 100s if not 1000s of torrents were being reported every day.

Since the site was "complying", that presumably meant 1000s of torrents were also being taken down every day. Making extra work in this way lies at the heart of the company's service, as this helpful FAQ explains:

Piracy is rampant and can often seem like you’re playing Whack-A-Mole. However, in this case you’re not just hitting the moles with rubber mallets but we’re dropping napalm bombs on the whole field. Part of the success of piracy sites can be attributed to them offering a superior surfing experience for users. As long as copyright owners do nothing, that experience will continue to be superior. We interfere with that experience by introducing frustration to the mix. Whether it’s the site owner frustrated at the amount of time he/she spends on removing content or the frustration the downloader feels at not being able to find free content, frustration is a very valuable tool to use in combating piracy, and we excel at that.

What's fascinating here is the recognition that piracy sites offer a "superior experience for users" – compared to the official offerings. That confirms other evidence that what people who use unauthorized sources are really seeking is not free content -- because often they must pay to access them -- but the extra convenience those sites offer.

Which means, of course, that it is the copyright industries themselves, with their failure to provide that convenience, that are helping to drive potential customers to alternatives. It also implies that if the content companies managed to make their offerings competitive with pirate sites -- that is, even more convenient -- they would win back much of that lost business.

Significantly, that is what the Takedown Piracy service seems to advocate:

While we’re doing our thing, you’re able to adapt your business to the new digital world and have a chance for your new distribution models to flourish.

If even an avowed enemy of pirates can see what's needed, why can't the copyright companies themselves?

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

The Apple rumor mill is spinning at full speed again, with word of a new iPad release in March. This would be on schedule for Apple, so the real speculation is around exactly what improvements this iPad will feature. The Wall Street Journal, normally not the town gossip, wrote that the upcoming iPad would feature a smaller 8-inch screen, and would be LTE-enabled. LTE is the latest, fastest network technology available from Verizon, AT&T, and other network operators. But the intention here is not to pile on to the speculation of what Apple might deliver. The intention is to speculate instead as to what the carriers might have up their sleeves with respect to an LTE tablet pricing plan.

When the LTE iPad hits the market, expect to see it sold with a "shared data plan", or a plan that is connected to a smartphone plan, and share a common pool of MB of traffic per month. Verizon, in particular, has hinted that just such plans will be emerging soon. Lowell McAdam said in December that such plans would emerge "sometime in 2012" to accommodate the increasing number of people with multiple mobile Internet devices. Such devices include smartphones, laptops, tablets, and others. More and more, subscribers are adding devices, and are getting frustrated at having to open a separate account, with a ~$50/month price, just because they choose to browse on their tablet instead of their smartphone. Most customers, rightly, assume that it should make little difference to the operator whether they access the net on their tablet, laptop, or phone. This is just a substitution of the access device. Because of the current punitive billing, owners of multiple connected devices are defecting from the cellular game, and instead opting to use Wi-Fi only on laptops and tablets...and liking it!

Research from The NPD Group has shown how the attach rates (portion that sign on to cellular service) for cellular-ready tablets have been less than stellar, and decreasing over time. In April 2011, NPD says that 60% of tablets only connected via Wi-Fi, but by December 2011, that number had jumped to 65%, showing how Wi-Fi has been winning out over the more expensive and contract-laden cellular offerings. Tablets like the Kindle Fire are sold as Wi-Fi only, contrasting with the earliest Kindles which all had cellular radios embedded. The carriers are at extreme jeopardy of losing the connected device market (and embedded market and M2M) simply because they have lagged in offering the kinds of flexible plans that make sense.

Once a trend away from cellular connection takes hold, it becomes harder to stop. Wi-Fi networks will respond with increased capacity and increased hotspots, OEMs will respond with more Wi-Fi-only devices, and consumer behavior will respond by considering tablets as "portable" Wi-Fi devices, not fully mobile like smartphones. The strategic cost to the carriers is significant. While the trend won't be stopped, it is certain that carriers could retain significance by offering pooled data plans at sensible bundled prices. This means selling data to a consumer, not to a consumers specific device. And what better way to launch such a new pricing plan than with a device that the market has proven to love - a new iPad?

So whatever the shape of the new iPad, and the fantastic new features that fanbois laud while naysayers explain how they were just repurposed from other devices, we should fully expect an LTE iPad with a new kind of cellular pricing model, which drives up the attach rate, increases device utility at a reasonable price, and creates greater carrier loyalty and long-term gains. If Verizon and AT&T do this right, we could all win.