QuestionCopyright has an interesting article about the role that open access might play in opening up China to new ideas. But what really caught my attention was the following section:

Because copyright originated from publishing, it is is primarily concerned with protecting the expression of works – whereas the ideas expressed are not copyrightable. In other words, it is illegal to copy or reproduce a work without authorization, but perfectly fine to borrow one's ideas by paraphrasing. Yet, if you talk with any scholars or professors in China, you will find that most authors are more concerned if others borrow their ideas without giving them credit. It is not a big deal if their papers or journal articles are posted online by others without their authorization. Some of the authors may even be pleased to know their ideas are more widely circulated so long as the works are attributed to their names and are not altered without their permission.

I think this raises an important issue. Perhaps copyright protects the wrong thing for academics: what they really care about is credit for the ideas their papers contain, not how they phrased them.

This analysis echoes suggestions I've heard elsewhere that one approach to reforming copyright would be to abolish it completely for academic publishing. Not only do scholars not need copyright for their work, if it's ideas not expression that counts, it gets in the way by putting obstacles between them and the research of others.

Moreover, as the QuestionCopyright article points out, fully opening up research would also be the best way of tackling what seems to be the chief fear of academic authors: plagiarism. More readers able to access more works would mean a greater likelihood that unacknowledged copying between them would be noticed and exposed.

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While there's been plenty of (quite important) focus on the National Defense Authorization Act and its ability to detain Americans indefinitely, the Senate also recently passed the Intelligence Authorization Act of 2012, which (as the name implies) authorizes various intelligence activities. One important thing was missing from this bill: a multi-year extension of the FISA Amendments Act.

As you may recall, earlier this year, the Senate tried to rush through a multi-year renewal of the FISA Amendments Act. The FAA, originally approved in 2008, retroactively made warrantless wiretapping efforts by the US government legal. The supposed intention of the bill was to make it easier to tap foreigners outside the US. However, it appears that the government has interpreted parts of it in ways that go beyond what people might expect, leading to significant surveillance of Americans inside the country. Senator Ron Wyden had sought information on just how many Americans had their communications intercepted under this law and was told it was "not reasonably possible" to answer that question. In response, he put a hold on the bill, and the Senate chose not to fight him on it, choosing not to put such a multi-year extension into the bill -- meaning that the issue will have to be voted on again in 2012. According to Wyden:

“I’m pleased that the final version of the 2012 Intelligence Authorization Act does not include the multi-year extension of the FISA Amendments Act that was included in the Senate version of the bill. I opposed the Senate version of the bill, and I announced a public hold on it, because I believe Congress has an obligation to get more information about the effects of this law before extending it for several more years. The FISA Amendments Act of 2008 was intended to give the government new authorities to conduct surveillance of foreigners outside the United States, but right now nobody in government knows how many people inside the United States have had their communications collected and reviewed as a result of this law. Congress will inevitably need to debate the reauthorization of the FISA Amendments Act at some point during 2012, and when this debate occurs I plan to continue to press for more information about the impact that this law has had on the privacy of law-abiding American citizens.”

Unfortunately, if the past few years have been any indication of how this all works, there will be no significant debate until the deadline is close, and then Senators will demand that everyone quickly reauthorize things or we're all going to die (or some equally horrible scenario). It's the "give us all sorts of extra powers immediately with no real oversight or we're all going to die" form of government that has been so in vogue lately.

Now that the Space Shuttle has been retired, NASA temporarily has no vehicle of its own to send astronauts into space. The plan is to encourage commercial entities to be more interested in manned spaceflight, and there are a handful of companies that are taking a shot at putting people on rocketships. Here are just a few interesting links on the future of commercial space missions.

• NASA is handing off low-Earth orbit to commercial enterprises and taking a look at longer-range missions for itself. The space race has essentially turned into America's Next Top Space Model... or American Space Idol... [url]
• Paul Allen and Burt Rutan have developed an enormous mothership that will launch rockets from the stratosphere. Stratolaunch Systems hasn't built it yet, but they plan to launch the first rocket in 2016. [url]
• So far, SpaceX is the only commercial company to successfully return a spacecraft from orbit. This capability is only shared by five nations and the European Space Agency. [url]
• To discover more links on space exploration, check out what's floating around in StumbleUpon universe. [url]  

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

As Congress is debating SOPA, it seems worth taking a look at how copyright holders are already abusing existing copyright law to take down content they have absolutely no right to. Cory Doctorow has a column concerning how the "real pirates" of YouTube may be the big entertainment companies, who have been using YouTube's ContentID system (not the DMCA) to "claim" a ton of public domain works:

FedFlix is a charitable project launched by Carl Malamud, a "rogue archivist" who raises funds to digitise and upload videos created at US government expense. Under US law, government creations are in the public domain and can be freely used by anyone, but the US government is remarkably lax about actually making its treasures available to the public that owns them.

Malamud's group pays the fees associated with retrieving copies from the US government – sometimes buying high-priced DVDs that the government issues, other times paying to have unreleased videos retrieved from government archives – and posts them to YouTube, the Internet Archive and other video sites, so that anyone and everyone can see, download, and use them.

Malamud's 146-page report from FedFlix to the Archivist of the United States documents claims that companies such as NBC Universal, al-Jazeera, and Discovery Communications have used ContentID to claim title to FedFlix videos on YouTube. Some music royalty collecting societies have claimed infringements in "silent movies".

I've embedded that full report below as well. As Doctorow notes, under the ContentID system, getting too many strikes can get you in trouble, but there apparently is no way to defend yourself by saying "this work is in the public domain." The closest may be that it's fair use, but fair use doesn't apply to the public domain (fair use is an exception to copyright law, but there's no copyright on public domain material).

There are two issues here. One is the general over-claiming of material by others. That's generally known as copyfraud and should be punishable, but rarely is. The second, perhaps bigger, point is how this ContentID system -- the kind of pre-monitoring system that the entertainment industry has been trying to foist on every user-generated-content site for the past few years -- isn't always so benign. It can clearly catch perfectly legitimate things, and that's a problem if we're trying to encourage the free flow of information.

But, of course, nothing gets done to fix any of this because, as Cory notes, "there is no organized lobby for the public domain." And that's sad. Because, realistically speaking, Congress should be the lobby for the public domain, as they're supposed to (I know, don't laugh) represent the interests of the public.

David Rees became a well known political cartoonist about a decade ago, but he eventually gave it up for other pursuits... until SOPA came along. Last week he announced that he was coming out of retirement in order to launch GetYourCensorOn.com, with a bunch of comics and images related to SOPA. Here are just a couple, but you can click the link above to see more. I still don't think the politicians supporting this mess realize what they've stirred up online...

One of the tactics deployed by supporters of SOPA is that there is no real concern from the public regarding the legislation. They like to claim that only those who profit from piracy really want to block this bill. Yet, we see time and time again this is not true. With letter writing campaigns from groups such as the EFF, Public Knowledge and Demand Progress having generated hundreds of thousands of letters, emails and phone calls from concerned citizens, the pro-SOPA groups have had to resort to drastic inflation to defend their side. We now have further evidence that such widespread opposition to SOPA is not only growing but accelerating as well. This evidence comes in the form of two We The People petitions on the White House website.

The first of these petitions, titled "Stop the E-PARASITE Act", was created back on October 31 when SOPA was known as E-PARASITES. This petition slowly gained signatures for about two weeks and then had a surge of support when the House Judiciary Committee held its stacked hearing on the legislation. On November 16, the petition hit its 25,000 signature goal, a full 14 days before its deadline.

Fast forward to December 18. Only a few days after the House Judiciary Committee held its SOPA markup, a new petition surfaced, "VETO the SOPA bill and any other future bills that threaten to diminish the free flow of information". With the markup fresh in the minds of those opposed to SOPA, this petition reached its target of 25,000 signatures on December 19, the second day after going public. That is quite the feat.

If there is no real public concern over SOPA, as supporters of the bill claim, who are these people? Why are they so mobilized to sign and complete far ahead of the deadline not one but two White House petitions in opposition to the legislation? Regardless of who these people are or what their motivations for opposition to SOPA are, one thing is clear, these people want action and answers. While there is no time frame for when the Obama Administration will respond, one thing is clear, SOPA is a hot button issue and those trying to force its way through Congress will not be able to ignore the public for much longer.

Early last week we noted that, using the tool, YouHaveDownloaded, some folks in the Netherlands noticed that the local music collection society appeared to be engaging in infringement. You knew that wasn't where things would end. Soon after that, people spotted infringement emanating from NBC Universal, Sony Pictures and Fox Entertainment -- three of the biggest supporters of ever more draconian copyright law. And, of course, that was just the beginning. The RIAA and Homeland Security have now also been identified. And, no, in most of these cases, it's clearly not just for research purposes or to find infringers. The RIAA, for example, could probably get away with downloading music... but the first five seasons of the TV show, Dexter? That's tougher to believe. The folks at Gizmodo have calculated just how much the RIAA's likely infringement here should cost, using the RIAA's own metric of the maximum statutory rates of $150,000 per infringement... and figured the RIAA owes about $9 million. Somehow I doubt we'll see the RIAA pay up any time soon.

In what should be a clear warning of the problems with laws like SOPA, we have a new ruling in the UMG v. Veoh case -- and how copyright holders will miss no opportunity to kill off perfectly legal services with bogus copyright claims. As you may recall, Veoh was a YouTube-like site, that was sued by Universal Music because some users had uploaded videos with UMG copyrighted music in them (technically Veoh sued for declaratory judgment first, but only in response to a threat letter from UMG, who followed up with an actual suit of its own). Veoh -- in part funded by former Disney CEO Michael Eisner -- had always been very careful to follow the DMCA notice-and-takedown process. However, in the minds of Hollywood, that's simply never enough. As in the Viacom-YouTube suit, UMG seemed to want to claim that Veoh had to wave a magic wand and figure out what was infringing and make it disappear. Thankfully, a court recognized that Veoh was legal under the DMCA. Still, UMG couldn't resist trying to bury the company in legal costs, not just suing the company, but by also suing the company's investors, in some twisted theory of secondary liability.

Either way, despite being declared perfectly legal, the costs of defending against such a ridiculous lawsuit was too much for a startup like Veoh, and it was forced to shut down, living on solely to keep the case going, so that someone was able to defend against UMG's appeal.

Today we get the excellent news that the 9th Circuit has affirmed the lower court's ruling and noted that Veoh, indeed, was perfectly legal. The ruling is pretty thorough and comprehensive and dismisses some of the ridiculous claims we've see here at times. First, it notes that Veoh is clearly protected by the DMCA. Some (including UMG) have argued repeatedly that because Veoh (and others) don't just "store" the content, but process it for display/performance, that this goes beyond the DMCA protections. The court notes that, if this interpretation is accurate, it makes much of the rest of Section 512(c) of the DMCA totally meaningless -- and that doesn't make any sense. Furthermore, it points out that it would be kind of silly to suggest the DMCA only protects storage but never access:

By its terms, § 512(c) presupposes that service providers will provide access to users’ stored material, and we would thus contravene the statute if we held that such access disqualified Veoh from the safe harbor. Section 512(c) codifies a detailed notice and takedown procedure by which copyright holders inform service providers of infringing material accessible through their sites, and service providers then “disable access to” such materials. 17 U.S.C. § 512(c)(1)(A)(iii), (c)(1)(C) & (c)(3)(A)(iii) (emphasis added). This carefully considered protocol, and the statute’s attendant references to “disabl[ing] access” to infringing materials, see id., would be superfluous if we accepted UMG’s constrained reading of the statute. See Greenwood v. CompuCredit Corp., 615 F.3d 1204, 1209 (9th Cir. 2010) (“We must, if possible, interpret a statute such that all its language is given effect, and none of it is rendered superfluous.” (citing TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001))). Indeed, it is not clear how copyright holders could even discover infringing materials on service providers’ sites to notify them as the protocol dictates if § 512(c) did not contemplate that there would be access to the materials.

We do not find persuasive UMG’s effort to reconcile the internal contradictions its reading of the statute creates by positing that Congress must have meant § 512(c) to protect only “web hosting” services. Web hosts “host” websites on their servers, thereby “mak[ing] storage resources available to website operators.” The thrust of UMG’s argument seems to be that web hosts do not undertake the sorts of accessibility facilitating functions that Veoh does, and thus the services they perform “fit within the ordinary meaning of ‘storage,’ ” and thereby “harmoniz[e]” with the notice and takedown procedures. UMG’s theory fails to account for the reality that web hosts, like Veoh, also store user-submitted materials in order to make those materials accessible to other Internet users. The reason one has a website is so that others may view it. As amici note, these access activities define web hosting -- if the web host only stored information for a single user, it would be more aptly described as an online back-up service...

Next up is the question of whether or not Veoh fell afoul of the DMCA's "red flag" knowledge provisions -- the part that's the key to the Viacom/YouTube lawsuit. The problem here is that, as with Viacom/YouTube, UMG completely fails because Veoh clearly took down any content as soon as it became aware that the specific content was infringing. Of course, part of the problem here is that UMG never sent a takedown (oops). It just let the RIAA send some notices instead. UMG tries to get around this by arguing that because Veoh had a "music category" it must have known it had infringing material (seriously). The court is not impressed and educated UMG to the fact that, you know, not all music online is infringing:

As an initial matter, contrary to UMG’s contentions, there are many music videos that could in fact legally appear on Veoh. “Among the types of videos subject to copyright protection but lawfully available on Veoh’s system were videos with music created by users and videos that Veoh provided pursuant to arrangements it reached with major copyright holders, such as SonyBMG

Then the court points out that Congress' expressed purpose behind the DMCA was to "facilitate making available quickly and conveniently via the Internet . . . movies, music, software, and literary works" and that's "precisely the service Veoh provides." You can almost hear the sarcasm in the ruling in response to UMG's preposterous suggestion that anyone hosting music online must know it's infringing. The court furthermore goes back to the Betamax ruling:

Cases analyzing knowledge in the secondary copyright infringement context also counsel against UMG’s general knowledge approach. In Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), the Supreme Court held that there was “no precedent in the law of copyright for the imposition of” liability based on the theory that the defendant had “sold equipment with constructive knowledge of the fact that their customers may use that equipment to make unauthorized copies of copyrighted material.” Id. at 439. So long as the product was “capable of substantial noninfringing uses,” the Court refused to impute knowledge of infringement....

Requiring specific knowledge of particular infringing activity makes good sense in the context of the DMCA, which Congress enacted to foster cooperation among copyright holders and service providers in dealing with infringement on the Internet...

From there, the court makes a key point that we've discussed plenty of times: the only one who really knows if the material is infringing is the copyright holder:

Copyright holders know precisely what materials they own, and are thus better able to efficiently identify infringing copies than service providers like Veoh, who cannot readily ascertain what material is copyrighted and what is not.

I feel like that quote needs to be stamped on the foreheads of copyright holders who keep trying to make everyone else become copyright cops for them. No one else knows if the work is authorized or not.

The court goes on to note that this was Congress' clear intent. Otherwise it wouldn't have made it clear that bogus DMCA notices can be ignored. That is, notices that don't provide the specific info don't make service providers liable. UMG (and Viacom) seek to flip that on its head, by arguing that if you know that something somewhere on your site may be infringing, you lose safe harbors and are suddenly liable. That's crazy and makes no sense... as the court clearly understands.

Congress made a considered policy determination that the “DMCA notification procedures [would] place the burden of policing copyright infringement — identifying the potentially infringing material and adequately documenting infringement — squarely on the owners." of the copyright.

The court notes that it sees "no principled basis" for changing Congress' intent here.

We therefore hold that merely hosting a category of copyrightable content, such as music videos, with the general knowledge that one’s services could be used to share infringing material, is insufficient to meet the actual knowledge requirement

The court goes on to remind UMG that it also doesn't own all rights to every artist signed to the label. UMG had argued that because Veoh ads popped up on searches for UMG artists, that Veoh knew it was infringing. But the court notes that's crazy.

UMG argues that Veoh’s purchase of certain search terms through the Google AdWords program demonstrates knowledge of infringing activity because some of the terms purchased, such as “50 Cent,” “Avril Lavigne” and “Britney Spears,” are the names of UMG artists. However, artists are not always in exclusive relationships with recording companies, so just because UMG owns the copyrights for some Britney Spears songs does not mean it owns the copyright for all Britney Spears songs. Indeed, 50 Cent, Avril Lavigne and Britney Spears are also affiliated with Sony- BMG, which gave Veoh permission to stream its videos by these artists. Furthermore, even if Veoh had not had such permission, we recognize that companies sometimes purchase search terms they believe will lead potential customers to their websites even if the terms do not describe goods or services the company actually provides. For example, a sunglass company might buy the search terms “sunscreen” or “vacation” because it believed that people interested in such searches would often also be interested in sunglasses. Accordingly, Veoh’s search term purchases do little to demonstrate that it knew it hosted infringing material.

From there, the court quickly dispatched each of UMG's nuttier attempts to show "red flag" knowledge (an email from a Disney CEO complaining to Eisner, some news articles mentioning that infringing content is on the site and a user complaining that Veoh wouldn't let him upload infringing content by noting that he's seen lots of other infringing content). None of those rise to the level under the DMCA that would show Veoh had red flag knowledge of specific infringing content that would remove safe harbors.

In fact, the court states again that specific (not general) knowledge of infringement is necessary, and that was clearly what Congress intended.

First, Congress explicitly stated in three different reports that the DMCA was intended to “protect qualifying service providers from liability for all monetary relief for direct, vicarious and contributory infringement.” .... Under UMG’s interpretation, however, every service provider subject to vicarious liability would be automatically excluded from safe harbor protection. Second, Congress made clear that it intended to provide safe harbor protection not by altering the common law vicarious liability standards, but rather by carving out permanent safe harbors to that liability for Internet service providers even while the common law standards continue to evolve.

Finally, the court also soundly rejects UMG's attempt to bring Veoh's investors into the lawsuit for vicarious and contributory infringement, as well as inducement. The problem here is that since Veoh was protected by the DMCA there was no infringement that its investors could be guilty of secondarily helping to proceed:

It is well-established that “[s]econdary liability for copyright infringement does not exist in the absence of direct infringement . . . .”

Finally, Veoh itself had appealed the rejection of its request for attorneys fees. Here, Veoh wins a partial victory as the court says that the lower court needs to go back and review some (though not all) of that part of the ruling.

Either way, this should be a huge warning sign for why SOPA/PIPA would be a disaster. Just look at the status of Veoh today. It's out of business due to a totally bogus DMCA claim that forced it into court. At least under the DMCA, it was able to keep its site up. SOPA/PIPA set up a system whereby sites don't just have to defend themselves in court after they've already been shut down, but they can't even keep their business going at all while the process is ongoing. Given situations like Veoh and the Dajaz1 takedown, it should be quite obvious that copyright holders have a long history of killing off perfectly legal services by abusing copyright law. Giving them more ability to do so should insult basic common sense.

Well, look at that. There's been a lot of back and forth over the past few days concerning whether or not Lamar Smith was serious about holding the continuation of the SOPA markup tomorrow morning. Many people believed he was bluffing just to piss off the anti-SOPA folks... and it appears that his bluff has been called. Smith has just announced that the continuation of the markup has been "postponed due to House schedule." In other words, see everyone next year on this... Either way, just saying that the markup was going to continue tomorrow was a pretty cheap political trick designed to piss off lots of people... and to avoid Smith's own promise that he'd actually take time to hear from technology experts on the subject of online security. Update: And just to continue the joke, we're now hearing rumors that they might try to schedule it... for next week. I can't believe that Smith would be so politically crass, but it's not out of the realm of possibility, if Congress actually is in session next week to argue about other stuff that actually matters. Update 2: And now a Smith staffer says nothing scheduled for the rest of the year...

Trey Ratcliff is an extremely successful photographer, who specializes in HDR photography. His blog Stuck in Customs is the top travel photography blog on the internet, with over a million views each week.

Naively, then, you might expect him to be a typical artistic fat-cat who regards every act of piracy of his photos as a personal insult that in a just world would be avenged by amputation of limbs and life incarceration at the minimum. Actually, he uses Creative Commons licensing for all his work, and has just written a wonderful post with the self-explanatory title "Five Reasons Why I Don't Care if My Stuff is Pirated - A New Way of Thinking", pointed out to us by Paul Newport, where he states:

All of my stuff is pirated. Everything from my HDR Video Tutorial to eBooks to Apps. Fine. It's all there on PirateBay and MegaUpload and all that stuff. Here are the reasons why I don't mind

He then goes to list five reasons that show a deep understanding of why piracy happens, and why it isn't necessarily so bad for those whose works are pirated. For example, Ratcliff points out:

Theft of bits are like the Tic Tacs that get stolen from the 7-11. It's the cost of doing business on the Internet.

That is, the actual loss is trivial (bits are practically free), and you learn to live with it because of the counterbalancing benefits. He also has a belief in the innate goodness of people:

Many people that pirate stuff now from me just don't have any money. But, they like me and want my stuff.

After all, that's why they pirate it. And if/when they eventually get their finances sorted out, they'll remember Ratcliff's generosity in allowing them to download his stuff for free without conducting a witchhunt as a result, and pay it back by buying from him. As he says:

Pirates are not cretins riddled with immoral behavior in every part of their life. These are all generally good people who would gladly support me, their friendly local neighborhood artist, if they could easily afford it. They can't now, but they will be able to some day...

He mentions another very practical reason not to dismiss pirates as the enemy:

Pirates have friends that have money. It's still word-of-mouth, the most effective friend-to-friend marketing in the world. If pirates like what you do, they'll tell their friends.

That's an important point: even if the pirates don't buy stuff now, they may well spread free publicity that drives sales elsewhere. If you vilify pirates, you are spurning an important part of your unofficial marketing department.

Finally, Ratcliff gives one central reason why he's not really that worried about piracy:

Last, and most important, as soon as I opened everything up, our business has grown and grown.

But he also notes:

piracy is not the reason that revenues are increasing, but they are not hurting revenues

The curious thing is, the same is true of the music and film industries, which continue to thrive despite all the online piracy, as Techdirt has pointed out in the past.

In other words, everything that Ratcliff says in his extremely wise post about photography also applies to music and films. But whereas he accepts the need for "A New Way of Thinking" as he puts it, and can even see that piracy is beneficial to him in many ways, the copyright industries cling to their traditional perspectives, and insist on fighting this "scourge" with ever-greater ferocity in the face of their continuing failure to expunge it – with huge collateral damage to the rest of us, as SOPA and PIPA make clear.

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As the US seeks to set up its own "Great Firewall" by copying Chinese censorship techniques in the twin bills SOPA and PROTECT IP (PIPA), it appears that China is doing exactly as you would expect when you give a government the tools to censor the internet: it keeps ramping up the censorship. Specifically, it's requiring anyone who uses the local equivalents of Twitter, like Sina Weibo, to register with their real names, which then have to be verified by the government. Then, they're banning the posting of anything the government deems to be "harmful information."

Now, I know that every time we compare SOPA/PIPA to the Great Firewall, the defenders of those bills twist themselves into contortions to explain why it's totally different because US censorship is about "intellectual property" and Chinese censorship is about "political repression." Yeah. Ok. But if you look at what China says, of course they don't say it's about political repression -- they say it's about "harmful information." Kinda like SOPA/PIPA's focus on "rogue sites," right? It's all in how you define it, but the fact is that they're both forms of censorship, and when you open the door to that in the US, you don't want to see where it ends.

And, of course, the State Department -- despite all its rhetoric about "Internet Freedom" -- can't do a damn thing, because the second they say anything to the Chinese, the Chinese point to SOPA/PIPA and say: "Look, you consider copyright infringement to be harmful to the US. We consider people disrespecting our leaders as harmful to China. What's the difference?" And, honestly, the State Department has no credible response. This is why we've been hearing from multiple sources that many people within the State Department are quite upset about SOPA/PIPA. Not only do they undermine online security, but they undermine a multi-year effort to push for more internet freedom abroad.

In the continuing mainstream news realization that SOPA and PIPA are dreadful bills that won't stop infringement, but will have massive negative consequences for the internet, we've got Reuters' (formerly Slate's) celebrated media columnist, Jack Shafer, explaining how "Hollywood's pirate cure is worse than the disease." If you've been following Techdirt for a while, there's nothing really new here, but it is a nice summary. I especially like the part where he responds to a Fox exec claiming that Hollywood's "mistake" was allowing people to call infringement "piracy" (no, really, Tom Rothman, co-CEO of Fox Filmed Entertainment actually said that):

...resorting to this sort of hyperbole is just the Hollywood way of winning an argument. In 1982, Jack Valenti, then head of the movie business’s trade association, told Congress in 1982 that the VCR was “to the American film producer and the American public what the Boston Strangler is to the American woman at home alone.” The happy Hollywood ending to that copyright Armageddon? The VCR made the movie industry ridiculously wealthy by creating a new sales channel.

Pirates and the “intellectual-property defense industry” ([Adrian] Johns’s delightful phrase) have been clashing at least once a century since the end of the Middle Ages. Sometimes cultural changes spur the fight, as in the Enlightenment era when the first modern copyright and patent systems took hold, he writes. But leaps in technology drive the conflict, too, as the histories of inexpensive movable type, the piano roll, the Victrola, the VCR, the personal computer, and the Internet prove. The faster that technology moves, the more vicious the fight. In recent decades, the piracy debate has moved to those new industries that have persuaded the government to expand the IP rights to their plant seeds and genes. (And, yes, the agriculture and pharmaceutical industries have allied themselves with the entertainment complex in this current political battle.)

In the end, Shafer notes that even as he makes his living creating "intellectual property," he can't support such awful bills.

As someone who creates "intellectual property" (I shudder at the phrase) for a living and works for a huge company that owns slews of it, I have a vested interest in this fight. But SOPA or PIP would do excess damage to free speech, free association, free commerce, and innovation in the name of scuttling the Internet’s scurvy pirates. As the character Ramon Miguel “Mike” Vargas says in Orson Welles’s Touch of Evil, “A policeman’s job is only easy in a police state.”

While we had one court say that harassing speech on Twitter was protected by the First Amendment, another court felt quite differently about harassing speech on a blog. As both Eric Goldman and Kash Hill have discussed, a court ordered Andrew John Arlotta to delete his entire harassing blog about his ex-girlfriend, and also basically to not do anything that he intends to upset her. Goldman highlights a few of the problems of this, in rather understated tones:

The court rejected a constitutional challenge to the HRO, basically treating harassing speech as a class of content categorically excluded from First Amendment protection. I'm not sure about this approach. It seems like this was more appropriately treated as a situation where speech is also conduct, and the HRO (harassment restraining order) regulated his conduct. I believe treating harassing speech as outside the First Amendment invites more mischief than playing with the speech/conduct divide.

I think Goldman underplays the problems here. I think we all agree that what Arlotta did was ridiculous, creepy and vindictive. But that doesn't mean it's not protected under the First Amendment. As Goldman notes, there were ways to stop Arlotta's conduct without taking away his First Amendment rights and carving out an exception to the First Amendment for being a jerk. I think this ruling is really questionable.

Goldman also highlights the consequences of such a bizarre and comprehensive ruling against Arlotta:

This ruling leaves open a key question. Even under the prior HRO, could Arlotta have blogged about his dealings with Johnson if he did not try to bring it to the attention of others? After all, if his statements are true and not based on restricted information, Arlotta should be able to tell his story. Then again, a blog will show up in the search results, so a blog could be a passive-aggressive way of getting back to Johnson, and just as (if not more) effective as affirmatively reaching out to call attention to the blog. So try a different hypothetical: could Arlotta write and publish a book telling his story? I think the answer should be yes, so long as he lacked malicious intent (recall the initial HRO restricted him from intending to hurt Johnson's privacy).

Of course, I'm not sure a judge would see it that way. That's part of the problem with this ruling. Clearly, the court was troubled by what Arlotta did, and found a way to stop him. So if he were to do as Goldman describes above, I wouldn't be surprised to see them merely assume that it was more of the same, and continue to block his speech. And that brings up one of the clear problems of the ruling. Could you really be barred completely from publicly speaking about an ex because you once harassed her?

We've written about UK singer Dan Bull a bunch of times, highlighting his various songs that often cover copyright issues. His latest is an anti-SOPA song and video, called SOPA Cabana (take a wild guess what that's a reference to). Check out the video here first, and read on below about the video and why it's interesting (beyond the music/lyrics): First of all, what strikes me as most interesting about this is that Dan's not in the US, but the UK. But he recognizes how this law being debated in the US can have a significant and dangerous impact around the world. In talking about his reasons for doing a song about SOPA, Dan noted that "SOPA is abhorrent on three fronts:"

Firstly, it threatens the future of the internet, which is something far more valuable both commercially and socially than the entertainment industry ever has been, or ever will be.

Secondly, creativity is all about interpreting and re-imagining what you see and hear around you. The idea that creativity exists in some kind of vacuum, and that you're not a real artist unless you can make something "completely original" is not only stupid, it contradicts the most fundamental axioms of how the universe works. Everything is influenced by something else. If we want a richer cultural landscape, we should embrace remixes, embrace mashups, and embrace sharing, not cling to ideas as pieces of property.

Thirdly, the internet is an amazing new forum for free speech and holding those in power us to account. The idea that governments and even private corporations can police the internet and decide what people on a global scale are allowed to say and hear is tyrannical.

Perhaps even more interesting, however, is how the song and video came together. After deciding he wanted to write a song about SOPA, he reached out to his followers on Twitter, asking for "help with themes and lyrics." After getting a bunch of ideas, and realizing he should do something different for the video, he went on Facebook and asked for volunteers to take photos of themselves holding up signs with the various lyrics... and tons and tons of people jumped at the chance. The whole video was put together over the last few hours, and the whole effort is pretty impressive.

Dan Bull is a musician. The entertainment industry and the lobbyists supporting SOPA insist that they're doing this to protect people like Dan Bull -- but Dan is quite reasonably scared of what this law will do to his ability to succeed online. Dan Bull is as well known as he is because of the internet, and his ability to share his works wherever and however he likes. SOPA would make that a lot more difficult. It doesn't "protect" Dan Bull. It helps destroy the careers of folks like Dan Bull by limiting their ability to create, promote, distribute and communicate.

The story so far: security researcher Trevor Eckhart exposed some very disturbing information about the "Carrier IQ" application here. This set off a small firestorm, which quickly got much bigger when Carrier IQ responded by attempting to bully and threaten him into silence. This did not go over well. After he refused to back down, they retracted the threats and apologized.

Eckhart followed up by posting part two of his research, demonstrating some of his findings on video. Considerable discussion of that demonstration ensued, for example here and here and here. Some critics of Eckhart's research have opined that it's overblown or not rigorous enough. But further analysis and commentary suggests that the problem could well be worse than we currently know. Stephen Wicker of Cornell University has explored some of the implications, and his comments seem especially apropos given that Carrier IQ has publicly admitted holding a treasure trove of data. Dan Rosenberg has done further in-depth research on the detailed workings of Carrier IQ, leading to rather a lot of discussion about Carrier IQ's capabilities -- there's some disagreement among researchers over what Carrier IQ is doing versus what it could be doing, e.g.: Is Carrier IQ's Data-Logging Phone Software Helpful or a Hacker's Goldmine?

Meanwhile, the scandal grew, questions were raised about whether it violated federal wiretap laws, a least one US Senator noticed, and Carrier IQ issued an inept press release. Phone vendors and carriers have been begun backing away from Carrier IQ as quickly as possible; there were denials from Verizon and Apple . T-Mobile has posted internal and external quick guides about Carrier IQ. Some of the denials were more credible than others. There has been some skepticism about Carrier IQ's statements, given their own marketing claims and the non-answers to some questions. There's also been discussion about the claims made in Carrier IQ's patent.

Then the lawsuits started, see Hagens Berman and Sianna & Straite and 8 companies hit with lawsuit for some details on three of them.

Attempts to figure out which phones are infected with Carrier IQ are ongoing. For example, the Google Nexus Android phones and original Xoom tablet seem to not be infected, nor do phones used on UK-based mobile networks, but traces of are present in some versions of iOS, although their function isn't entirely clear. A preliminary/beta application that tries to detect it is now available. Methods for removing it have been discussed.

Meanhile, A Freedom of Information Act request's response has indicated (per the FBI) that Carrier IQ files have been used for "law enforcement purposes", but Carrier IQ has denied this. And there seems to be a growing realization that all of this has somehow become standard practice; as Dennis Fisher astutely observes, With Mobile Devices, Users Are the Product, Not the Buyer.

Those are the details; now what about the implications?

Debate continues about whether Carrier's IQ is a rootkit and/or spyware. Some have observed that if it's a rootkit, it's a rather poorly-concealed one. But it's been made unkillable, and it harvests keystrokes -- two properties most often associated with malicious software. And there's no question that Carrier IQ really did attempt to suppress Eckhart's publication of his findings.

But even if we grant, for the purpose of argument, that it's not a rootkit and not spyware, it still has an impact on the aggregate system security of the phone: it provides a good deal of pre-existing functionality that any attacker can leverage. In other words, intruding malware doesn't need to implement the vast array of functions that Carrier IQ already has; it just has to activate and tap into them.

Which brings me to a set of questions that probably should have been publicly debated and answered before software like this was installed on an estimated 150 million phones. I'm not talking about the questions that involve the details of Carrier IQ -- because I think we'll get answers to those from researchers and from legal proceedings. I'm talking about larger questions that apply to all phones -- indeed, to all mobile devices -- such as:

• What kind of debugging or performance-monitoring software should be included?
• Who should be responsible for that software's installation? Its maintenance?
• Should the source code for that software be published so that we can all see exactly what it does?
• Should device owners be allowed to turn it off/deinstall it -- or, should they be asked for permission to install it/turn it on?
• Will carriers or manufacturers pay the bandwidth charges for users whose devices transmit this data?
• Should carriers or manufacturers pay phone owners for access to the device owners' data?
• Where's the dividing line between performance-measuring data that can be used to assess and improve services, and personal data? Is there such a dividing line?
• Will data transmission be encrypted? How?
• Will data be anonymized or stripped or otherwise made less personally-identifiable? Will this be done before or after transmission or both? Will this process be full-documented and available for public review?
• What data will be sent -- and will device owners be able to exert some fine-grained control over what and when?
• Who is is responsible for the security of the data gathered?
• Who will have access to that data?
• When will that data be destroyed?
• Who will be accountable if/when security on the data repository is breached?
• What are the privacy implications of such a large collection of diverse data?
• Will it be available to law enforcement agencies? (Actually, I think I can answer that one: "yes". I think it's a given that any such collection of data will be targeted for acquisition by every law enforcement agency in every country. Some of them are bound to get it. See "FBI", above, for a case in point.)

Lots of questions, I know. Perhaps I could summarize that list by asking these three instead: (1) Who owns your mobile device? (2) Who owns the software installed on your mobile device? and (3) Who owns your data?