We've been discussing for a while some of the ridiculousness behind both Facebook and Google requiring "real names" and shutting down the accounts of those who used pseudonyms. Frankly, it didn't make any sense to be so strict about it, and Google especially seemed to be at a complete loss to give any coherent reason why the real names policy made sense. And while the company defended the position for a while, it's nice to see that it appears to be planning to relax that policy with a new system that likely will allow the use of pseudonyms. While it's not yet entirely clear how this system will work, this seems like a move in the right direction, and will likely make Google+ a lot more usable by many people.

We recently wrote about Righthaven trying to get the appeals court to drop the requirement that it put up a $34k bond to cover legal fees owed in the Hoehn case, as it argued it needed the money for its other cases. The appeals court didn't buy the argument. As you can see below, it denied the "emergency motion" with no real commentary, other than to point to a few previous cases. So, Righthaven now just has a short period of time to find $34k to put up for bond, or it may expose itself to contempt charges or other sanctions.

Scientists haven't quite figured out everything about the genetic code of living things on Earth, but plenty of folks are tinkering with genetic engineering and creating some interesting results. Here are just a few neat projects with some modified microbes.

• The evolution machine is just a prototype right now, but it could speed up genetic engineering projects with directed and automated mutations for microbes. One of the projects for the evolution machine would be to create an organism that was immune to all viruses. What could possibly go wrong with that? [url]
• Single-cell biological lasers have been created with green fluorescent protein and human embryonic kidney cells. It's not sharks with lasers attached to their heads, but it's a start. [url]
• The technique of steganography by printed arrays of microbes (SPAM) sounds like the nerdiest way to send a message. Using bacteria to encode secret messages could also be another interesting method for lots of copies keeps stuff safe (LOCKSS). [url]
• To discover more interesting biological curiosities, check out what's currently floating around the StumbleUpon universe. [url]  

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

Eric Goldman pointed us to a bizarre legal complaint against Amazon.com by an anonymous actress. Her complaint? That Amazon's IMDB movie info site put her real age on her profile page. She claims that she never gave Amazon that info directly, but that it pulled the info from her credit card file, which she used to sign up for a "pro" IMDB account.

In Plaintiff’s case, Defendants were able to and did access Plaintiff’s personal and credit card information by intercepting and recording her confidential electronic communications without or beyond her consent, further using that information to cross-reference public records and other sources to obtain, among other things, Plaintiff’s legal name, age, date of birth, and other personal, confidential information, and making some of that unlawfully-obtained confidential information available to the public at www.imdb.com and other affiliated and unaffiliated websites.

By this practice, Defendants committed fraud, breached the terms of the Subscriber Agreement and Privacy Policy entered into with Plaintiff, and violated Plaintiff’s statutory privacy and consumer protection rights as described herein. Plaintiff brings this action seeking declaratory, injunctive and monetary relief to redress Defendants’ unlawful conduct.

All of this... because she didn't want her age identified on her IMDB page. The details behind all of this is that the actress is apparently Asian American, but does not use her real name for acting. Instead, she uses an Americanized name, and claims that she has been meticulous in not connecting the two identities at all. Thus, she claims that no one could possibly know the real age of the actress' stage name, unless they could connect her real name to the stage name. She claims that in signing up for IMDBPro, she supplied her credit card, with her real name, which Amazon then used to identify who she was and to figure out her actual date of birth. The woman insists that she appears much younger, and that she's suffered greatly from having her age revealed:

First, because lesser-known forty-year-old actresses are not in demand in the entertainment business, Plaintiff has suffered a substantial decrease in acting credits, employment opportunities and earnings since Defendants’ addition of Plaintiff’s legal date of birth to the Internet Movie Database. Second, because Plaintiff looks so much younger than her actual age indicates, Plaintiff has experienced rejection in the industry for each “forty-year-old” role for which she has interviewed because she does not and cannot physically portray the role of a forty-year old woman.

So what's the actual legal issue? She's claiming breach of contract, fraud, and violations of Washington State's privacy and consumer protection acts. The details suggest that it's not quite as crazy as it seemed at first... but still pretty crazy. First off, it's not entirely clear that Amazon actually did what she claims (used her credit card info to establish her age). It's entirely possible that the info on IMDB came from other sources. Second, even if it's upsetting to her, it's not at all clear that one's age is the kind of info that could ever be deemed "private" or personally identifiable info that is subject to privacy rules. The case seems to hinge on whether or not there's any real expectation of privacy in one's age. I just can't see a court buying that argument.

PayPal has an unfortunate reputation for arbitrarily shutting down accounts for various organizations, without much rhyme or reason. The latest is that it has frozen the donation account for Diaspora, the heavily hyped up effort to create an open source, distributed Facebook alternative. Diaspora kicked off with a ton of money via Kickstarter, but (as we worried) the project has proven to be more difficult to get off the ground than some expected. It recently sought more donations... only to discover that PayPal froze the account. Whether or not you agree with the project, it seems pretty ridiculous that PayPal just freezes such accounts. We hear stories of this way too frequently for it to be a mere mistake. The world desperately needs more payment processing options, because the ones out there today are woefully limited. Thankfully, there is at least some movement in that arena. We've been hearing a lot about Stripe -- a Silicon Valley payments startup, with funding from some original Paypal folks -- and, it's nice to see that they quickly jumped in to help Diaspora. Still, the more payment solutions out there, the better off we'll be.

We've talked a few times about s.978, the bill from Senator Amy Klobuchar, that attempts to make streaming videos potential felonies. The bill is poorly drafted (at best). It basically just adds "public performance" as a possible felony under the law. That seems simple, but it's way too broad, in an era when all sorts of things can be a public performance. Defenders of s.978 again insist that it's not that bad because the law would only apply to willful "commercial" infringers -- but as we've seen repeatedly, the feds seem to interpret that extremely broadly.

Thus, the bill could, in fact, be used against people streaming videos via YouTube for their own benefit. People like... Justin Bieber. In fact, a new advocacy group has kicked off a campaign against S.978 by asking people to help free Justin Bieber. As they point out, Bieber became famous by posting videos of himself singing famous songs on YouTube as a kid. As the campaign notes, this video was a big part of advancing Bieber's massively successful music career -- so you could easily make the case that it was clearly commercial infringement. It was "willful" and he clearly intended to infringe on the Chris Brown song. Clearly it was for "personal gain." As the law notes, you don't have to make money directly from the video for it to be criminal infringement. The law "does not require that a defendant actually realize a commercial advantage or private financial gain. It is only necessary that the activity be for the purpose of "financial gain or benefit." Check. It also has to involve 10 or more "performances" within 180 days. That video has over 35 million views. Check. And did it cause more than $2,500 in losses to the rights holder? Given how the RIAA defines losses, hell yes. Think of all that unlicensed use. If the label licensed the song for 35 million plays, I'm sure it would have cost a lot more than $2,500.

Game, set, match. Under Klobuchar's streaming felony bill, Justin Bieber likely committed a felony.

Now, I realize that many people don't much like Bieber or his music, but does he deserve to go to jail? Now, obviously, defenders of s.978 will claim that they don't intend to go after the likes of Justin Bieber. But just the fact that they could suggests a massively problematic bill. And, realistically, the problem isn't the Biebers of the world, but the next kids who upload a video of themselves lip synching to some song. This is a massively problematic bill, and hopefully you'll check out the Free Bieber site to help let Congress know that this bill is bad news.

While US courts have started to make it clear that recording police on duty is perfectly legal, it appears that France is going in the opposite direction. In a recent ruling, a French court has ordered ISPs to block access to a website, which hosts videos and photos taken by citizens demonstrating police misconduct. Apparently, the court claims that such videos and photos, in conjunction with the names and affiliations of the officers seen, is a violation of privacy rights. As is explained in a comment on Volokh's site:

the dissemination of photographs and videos in addition to the names and affiliations of those police officers therein were treated as privacy violations. The court cites Art. 2 of the law of January 6, 1978, which makes makes it illegal for private sector entities to process personal identifying information without first registering with a government commission (CNIL). Moreover, dissemination of that personal identifying information has to be done under conditions that respect the privacy of the persons in question. The court also treats certain statements made about the police on the website as defamatory.

The "defamation" claim at the end may make some people think that this move is more justified, but a later comment clarifies the statements seen as "defamatory." None appeared to implicate any individual, but rather complain about the police in general and seem to be pretty obvious hyperbole -- i.e., things that wouldn't normally be seen as defamatory. The privacy claim is simply ridiculous. It seems to assume privacy rights where none exist.

It's difficult to see how this decision is anything other than an attempt by the French courts to hide police misconduct. That seems rather shameful.

The Olympic Games are not just about sporting success, but also legal excess – in particular, taking laws to extremes in order to "protect" sponsors, who are routinely elevated to the level of Greek gods during the games, with similarly superhuman rights over lesser beings like you and me.

Techdirt has already written about the UK police getting special powers to enter homes during the 2012 games, as well as free speech being curtailed. Now there are plans to suspend the presumption of innocence too:

One of the fundamental principles of European justice will be temporarily suspended during next year’s London Olympics to protect the commercial interests of sponsors, if Government proposals are accepted by Parliament later this year.

Under the plans, anyone suspected of so-called “ambush marketing” or unauthorized trading near the Olympic Park during the Games would be presumed guilty until proven innocent – a clear contradiction of the European Convention on Human Rights.

The Department for Culture, Media and Sport (DCMS) believes the move is justified to facilitate the staging of the Games, which it describes as a “once-in-a-lifetime occasion”.

Regulations proposed by the DCMS state that an interference with the right to be presumed innocent “will be justified” as long as it is confined within reasonable limits.

So great is the threat of ambush marketing to the 2012 Olympic Games that other basic freedoms are being abrogated – like the right to run around naked in public with advertisements on your body:

Streakers who use their bodies to advertise during the Olympics could face a £20,000 [$32,000] fine under new rules.

The London Olympic Games and Paralympic Games Act 2006 is being tweaked to target people who attempt marketing stunts during the tournament.

A man invaded a diving event at the Athens 2004 Olympics with a brand daubed on his bare chest.

The good news is that the tweaked 2006 Act would not apply to people running around naked without advertisements, although a spokesman said: "there may still be legal ramifications". So please do bear that in mind if you experience a sudden urge to take off your clothes in London during the Olympics next year.

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Zoe Keating is a wonderful musician, who you hopefully already know about. A truly independent (but quite successful) musician, she's been showing how to connect with fans in a variety of interesting ways, building up a massive fan base (and she recently explained how she approaches her career over at our Step2 service). A few months back, she had mentioned to me that she was surprised when she received a statement from SoundExchange (who collects money for artists for online streaming), in which the royalties for some of her original music was being claimed by Universal Music Group. I was curious to see how such a thing could happen. Keating filed a complaint with SoundExchange, who checked with Universal, who admitted the music was Keating's alone... and the whole thing was worked out. Mistakes happen, and while it was a bit of a pain, it all got corrected, and we decided not to write a story about it.

However, earlier this week, Keating noted that Universal Music was once again claiming her own music as its own, and trying to claim the royalties owed to her. I asked her for some details, and she passed along all of the various emails, including the ones from earlier this year, in which SoundExchange insisted that everything was sorted out. Of course, in one of those emails, SoundExchange also admits that such situations are "not uncommon." That seems pretty ridiculous, but as long as they sorted everything out.

The latest, however, is that even though SoundExchange had previously reached out to Universal Music, on behalf of Keating, it now sent her an email saying that there were, once again "overlapping claims." Even worse, the note said that if she didn't respond within 90 days, the royalties would go to Universal, because they give preference when songs are claimed directly by a label.

Keating was forced, yet again, to complain to SoundExchange over Universal Music trying to take her royalties. In response, someone from SE suggested that it may have been Keating's own confusion -- even suggesting that she may have been confused about the difference between master sound recordings and compositions (Keating was not confused, and holds the rights to both, since they're entirely original compositions and recordings by her).

Those with a conspiratorial bent might think that this is a neat way for the major labels, like Universal Music to simply claim the rights to any indie artist's music. Just keep making the claim, and leave it to the artist to sort it out by working through SoundExchange's bureaucracy. I certainly doubt that's truly the case. It probably is just someone, somewhere making an administrative mistake in how things are recorded -- but just the fact that Keating has to continually explain this situation just to keep Universal Music from getting the royalties owed to her is pretty crazy. On top of that, each time this happens, such funds are held until the conflict is resolved. For an indie musician, having such funds held can be a pretty big deal.

The whole situation seems pretty ridiculous all around.

Update: The situation has now been resolved, with Universal admitting -- yet again -- that it does not have any claim or rights to Keating's music. Separately, SoundExchange wanted to make clear that the "conflict" in data came from a (nameless) webcaster, who incorrectly listed Keating's music on their playlist as belonging to Universal Music. They insist that Universal had nothing to do with the actual claim. What's unclear is why SoundExchange relies on webcasters for the copyright holder info. I can understand getting a listing of songs and artists, but asking them to figure out who the label/copyright holder is seems like a situation that is going to turn up all sorts of bogus data, something that SoundExchange admits outright is "a challenge across the industry."

Separately, SoundExchange claims that they do not give preference to labels as I stated in my post. But in the letter sent to Keating on Monday, it states: "our policy is to give preference to repertoire that is claimed directly by a label. Therefore, if we haven't heard from you within 90 days, we will adjust the claim in favor of the new claimant." That certainly sounds like they would have given preference to Universal Music. If that's not the case, it seems like they should clarify the language in such emails.

Thanks to Neppe we have learned of a trio of researchers who took it upon themselves to objectively study game piracy over BitTorrent and determine some quantifiable data on game piracy. (PDF and Embedded Below) The researchers, Anders Drachen, Kevin Bauer and Robert W. D. Veitch, observed a huge lack of objectivity in research from both sides of the piracy debate. They saw a lot of negativity on the side of the industry and positivity on the flip side.

According to Forskning.no, this lack of objectivity has led the games industry to inflate piracy numbers:(from the Google Translation)

These include an influential 2009 report, made by the U.S. trade association for game manufacturers, ESA. It is this which, according Drachen indicate that piracy is two to three times greater - depending on how the ESA press release is interpreted.

The Danish researchers estimate that is 290 million games a year. In comparison indicates ESA figures that 600 million games pirate copies in a year, and because of uncertainties in the measurement method, which is highly secret, the American figures to be considerably larger, according Drachen.

To counteract this subjectivity, the researchers took a sampling of all commercial games from November 2010 to January 2011 and watched the activity of those games on BitTorrent and combined that information with other information on the games, such as genre and review scores. In all, they listed 173 games of interest, of which 127 were found on BitTorrent. Using this data, they came to the following conclusions:

• The majority of games they tracked had fewer than 50,000 unique peers observed on BitTorrent. At the same time, the 10 most popular games had a combined 5.37 million unique peers.
• 'Action' games made up the lion's share of BitTorrent activity, comprising 45.61% of unique peers in all. 'Role-Playing Games', of which only 10 were observed, accounted for 15.58% of unique peers. However, when they looked at individual games, 'Action' games were less popular than 'Racing', 'Role-Playing', and 'Simulation' games, comprising 0.95%, 1.6%, 1.43%, and 1.08% respectively.
• Aggregated review scores correlated positively with the number of unique peers. Meaning, the higher the MetaCritic score, the more unique peers will be found on BitTorrent.
• In all, observed about 12.6 million unique peers accessing the 127 games on BitTorrent.

The researchers plan to continue their research by observing other features of games such as the ESRB ratings, marketing strategies and international release dates. They also plan to observe time-frequency distribution rates as well. They had already tested this by looking at 20 randomly selected games and found that games have a high peak around initial launch and then drift down to fairly low levels of unique peers.

This is a great first step in bringing objectivity into piracy debates. Hopefully, what will come of this is more interest in objective studies on piracy not just for games but also for other entertainment such as movies and music. The more information that is available will help content creators and distributors to make educated decisions on how to minimize the risk of piracy and better connect with their fans. Sadly, this study has made no headway on any of the major games industry news sites. One would hope that objectivity and quantifiable information would make for some interesting news.

For years we've seen Silicon Valley basically ignore what's happening in Washington DC, and this has allowed certain other industries to take advantage of that policy. Hopefully, more people are beginning to realize that this is a problem and that speaking out and doing something may have an impact. Thankfully, some in Congress are helping to spread that word as well. Senator Wyden, who we've obviously mentioned a bunch due to his willingness to actually fight against attacks on free speech and innovation, showed up in San Francisco earlier this week to speak at the Web 2.0 conference, where he laid out the issues behind PROTECT IP clearly. You can see the full interview below: Around the five minute mark, he lays out the real issue behind the PROTECT IP Act, rather than the BS claims of those supporting it:

Let me go right to the question of the PROTECT IP Act... What this is, at its heart, is a question of whether one part of our economy -- the content sector -- can use government as a club to go after another part of our economy -- which is the innovation sector and everything that the internet represents.

My only issue with this characterization is that it's a little broad. For example, Techdirt is, very much, a part of "the content sector." But we're quite worried about PROTECT IP. I recognize that the Senator was using shorthand, but it's helpful to distinguish the legacy content sector from the next generation content players who don't want to rely on the government to prop up our business models. Either way, the overall point is absolutely true, and it's too bad that almost no one else in Congress is willing to address the reality of the situation. It has everything to do with a small group of companies -- who are unwilling to adapt -- trying to lash out at the industries they need most.

The PROTECT IP, when you really strip it down, is about whether or not you're going to have arbitrary seizure of domains. Whether or not you're going to have these vague standards for going in and seizing a domain. And then, and something I think is particularly ominous, ceding a significant portion of the authority over the internet to private companies, in effect, allowing them to bring private rights of action.... This legislation, in its current form, would take a significant toll on both freedom and innovation. And particularly now, when the digital space is one of the most exciting parts of an economy, where we've had some tough times.

The rest of the interview is equally interesting as well, touching on his efforts to make sure the 4th Amendment applies to the GPS info associated with your mobile phone, his efforts to press the Obama administration to reveal its secret interpretation of the PATRIOT Act, and a variety of other subjects that we talk about here all the time -- including the idea that people here need to pay attention to what our government is doing and speak out when lobbyists and politicians are trying to hold back civil liberties or innovation.

I know it feels like we mention Senator Wyden pretty frequently, but there are two reasons for that: (1) So much of the things he gets involved in are the issues that we normally discuss here and (2) he's one of the only people in Congress who seems to really be interested in these things. It's good to see him come to Silicon Valley and spread that message directly to folks here.

We've noted over and over again that Spanish courts have quite reasonably interpreted Spain's copyright law to mean that a site that just links to infringing content is not liable for the infringement. This makes a lot of sense. You should not blame a third party for the actions of its users. Yet the entertainment industry has made these rulings out to be an absolutely horrible miscarriage of justice, and have -- with the support of the US government -- pushed hard for draconian new copyright laws within the country. While public outcry (and leaked State Dept. cables showing that the US was really behind it) helped derail the effort the first time around, supporters are still trying to push it through.

However, while the existing law stands, it's a bit surprising to see that one Spanish court has gone completely in the other direction and found the operators of a couple sites to be guilty of criminal copyright infringement, for which they may face a year in jail, in addition to fines. The lawyer for one of the guys suggests that this ruling is a result of politics, not the law. It's hard not to think that way given how it appears to fly in the face of most other decisions in Spain. I would imagine that there's still going to be an appeal in the case before it's really settled.

As a bunch of folks have submitted in one form or another, police in the United Arab Emirates are claiming that a significant dropoff in traffic accidents in the past week or so is due to the giant Blackberry outage that made many of the devices useless for quite some time. Of course, as the report notes, there's nothing beyond correlation to back this up, and there may be an alternative explanation as well:

At the end of last month, popular UAE footballer Theyab Awana was killed in a high speed crash near Abu Dhabi, and it was claimed that he was sending a message on his BlackBerry when he hit a lorry.

The football star's father, Awana Ahmad Al Mosabi, made an emotional plea to people not to use smartphones while driving, and a Facebook campaign against the use of BlackBerry Messenger while driving has grown in popularity.

That would suggest a pretty major third variable which likely distorts the impact of the Blackberry outage.

One of the important achievements of the open government movement in recent years has been a widening of consultations. Where before the only external input came from industry interest groups and their lobbyists, today the general public in many countries is invited to give its views on a range of proposed government policies. But is this just window-dressing?

That's what Chris Taggart, co-founder of OpenCorporates and founder of the UK local government site OpenlyLocal, wondered recently when he was preparing to participate in a UK government workshop about open data:

Yesterday I received an email from a Cabinet Office civil servant in preparation for a workshop tomorrow about the Open Data in Growth Review, and in it I was asked to provide:

"an estimation of the impact of Open Data generally, or a specific data set, on UK economic growth… an estimation of the economic impact of open data on your business (perhaps in terms of increase in turnover or number of new jobs created) of Open Data or a specific data set, and where possible the UK economy as a whole"

My response:

"How many Treasury economists can I borrow to help me answer these questions? Seriously."

Because that’s the point. Like the faux Public Data Corporation consultation that refuses to allow the issue of governance to be addressed, this feels very much like a stitch-up. Who, apart from economists, or those large companies and organisations who employ economists, has the skill, tools, or ability to answer questions like that.

Taggart's rhetorical question exposes the continuing bias in apparently open consultations that ask for detailed responses: only big companies with the people or resources to apply to such questions are taken seriously, which means that the views of the general public are once more discounted.

In fact, it's worse than that, since the actual figures produced by big companies – particularly those with a vested interest in preserving outdated copyright laws, say – often turn out to have no real basis in fact, as numerous previous Techdirt stories have shown. Large organizations can just use their size to lend an air of credibility to estimates that may be little better than some back of the envelope calculation.

Recognising this fact, Taggart decided to fight fire with fire by producing his own estimates that were pretty much jotted down on the back of an envelope. He also cleverly turned the question around, calculating not the positive impact of open data – something hypothetical and hence very hard to estimate – but the observed negative impact of closed data.

His calculations are surprisingly detailed (it must have been a big envelope), and are well-worth reading. His final figure? A loss of £17,850 million – around $28 billion – a year to the UK economy:

That, back of the envelope-wise, is what closed data is costing us, the loss through creating artificial scarcity by restricting public sector data to only those pay. Like narrowing an infinitely wide crossing to a small gate just so you can charge – hey, that’s an idea, why not put a toll booth on every bridge in London, that would raise some money – you can do it, but would that really be a good idea?

And for those who say the figures are bunk, that I’ve picked them out of the air, not understood the economics, or simply made mistakes in the maths – well, you’re probably right. If you want me to do better give me those Treasury economists, and the resources to use them, or accept that you’re only getting the voice of those that do, and not innovative SMEs [small and medium enterprises], still less the Big Society [ordinary people].

Just because consultations are open doesn't mean the submissions are representative.

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