There's plenty of talk making the rounds about Steve Jobs' comments about Android in the authorized biography that's coming out next week. In it, Jobs apparently makes it clear that he was absolutely furious about Android "ripping off" the iPhone. According to the summary in the Huffington Post:

Walter Isaacson's authorized biography of Steve Jobs offers an unprecedented look at the Apple co-founder's battle-cry against Google, a company he thought was guilty of a "grand theft" when it launched its Android operating system, which competes directly with the iPhone and has surpassed it in popularity.

"I'm willing to go thermonuclear war on this," he told Isaacson of the patent lawsuit Apple filed against cell phone manufacturer HTC.

In Isaacson's "Steve Jobs," a copy of which was obtained by The Huffington Post, the author recalls that Jobs, who was known for his fierce temper, "became angrier than I had ever seen him" during a conversation about Apple's patent lawsuit, which by extension also accused Android of patent infringement.

"Our lawsuit is saying, 'Google you f***ing ripped off the iPhone, wholesale ripped us off,'" Jobs said, according to Isaacson. "I will spend my last dying breath if I need to, and I will spend every penny of Apple's $40 billion in the bank, to right this wrong. I'm going to destroy Android, because it's a stolen product."

This is coming from Steve Jobs, who was inspired by the graphical user interface he saw at Xerox PARC and turned that into the Macintosh. Now, as we've noted before, what Jobs was always great at doing wasn't just taking an idea and copying it, but making it better. But, many would argue that's the same thing that Google has done with Android. Yes, they clearly took inspiration from the iPhone, but there are some key differences, which many people enjoy. In fact, Steve Jobs pretty much admitted this very fact earlier this year when some of the iPhone's upgrades appeared to be copied directly from Android.

And that's kind of the point: part of the way innovation works is that you build on the works of others. That doesn't just mean wholesale copying, but trying to take what works and improve on it -- or take what doesn't work well and figure out a way to make it work better. Steve Jobs did this many, many times, but so have Google and many other companies. It seems rather hypocritical to get all bent out of shape because others are doing the same thing.

Along those lines, Daring Fireball links to a wonderful discussion on this topic by designer Brian Ford, who discusses the idea of "artists copying or stealing" from one another.

Apple didn’t invent the iPod, they stole the idea and made the music industry their own. The way we buy and listen to music is now shaped almost entirely by Apple’s vision.

Apple didn’t invent the smartphone, they stole the idea and reshaped the industry in their own vision. Yes, Apple has “copied” bits and pieces of iOS from other sources —notifications is the obvious example — but overall, the future of the mobile industry has been shaped by Apple.

Apple didn’t invent the tablet computer, they stole the idea and now iOS is the template for the tablet market.

I completely agree with those points. It's quite similar to an earlier post we did about the importance of getting it right rather than being first, which pointed to a wonderful comic from Scott Meyer's Basic Instructions that included this panel: So I'm at a loss as to Jobs' complaint against Android. At best, the only logical way to view his complaint is that he was upset that Google didn't do enough on top of the idea of the iPhone to make Android completely its own. But I think that's more of a difference in philosophy. Steve Jobs came from a very top down world view, in which the brilliant designers (him, Jonathan Ive, etc.) designed everything perfectly. Google's world view seems to be more about setting up the system, and then letting others design the improvements. That's messier, clunkier, and a hell of a lot uglier at first. But in the long run, I think it tends to lead to much greater innovation. Just not the kind of innovation you unveil as "and one more thing..."

In the end, the best way to sum all this up comes from the T.S. Eliot quote that Ford puts at the end of his blog post. Many people have heard the paraphrased version (often copied and attributed to others) that "good artists copy, great artists steal." But the full T.S. Eliot quote is much more interesting and nuanced:

One of the surest tests [of the superiority or inferiority of a poet] is the way in which a poet borrows. Immature poets imitate; mature poets steal; bad poets deface what they take, and good poets make it into something better, or at least something different. The good poet welds his theft into a whole of feeling which is unique, utterly different than that from which it is torn; the bad poet throws it into something which has no cohesion. A good poet will usually borrow from authors remote in time, or alien in language, or diverse in interest.

Author David Brin, who frequently presents ideas that make me think deeply, even if I don't always end up agreeing with him completely, recently wrote an interesting blog post, discussing transparency, security by obscurity and zero sum games. The starting premise is that too many people assume that everything is a zero sum game -- a point that I've made repeatedly over the years, and am in complete agreement with Brin on that pont. I also agree that not understanding the differences between a zero sum game and a non-zero sum game is a huge part of the problem we often see in policy debates.

Brin, not surprisingly, is arguing that security by obscurity really is not a good idea, and challenging a recent paper that suggests that, when the situation is a zero sum game, then some security by obscurity may very well make sense. He's not challenging the actual details in the paper, but rather the idea that it matters very much, since (he suggests) most situations involving security are not zero sum games. It's a good point, and one worth thinking about.

But there is part of his post that troubles me, in that I find that he seems to then make the identical mistake himself, when it comes to intellectual property. After talking about zero sum games, he throws his weight behind the idea of strong IP laws, as an example of regulations that are designed to spread knowledge, and thus create a non-zero sum outcome. Here's just a snippet, but it goes on for longer, so go read the post linked above:

One of the most ingenious “regulations” — supported by Adam Smith and Ben Franklin etc, — was the notion of intellectual property or IP. Patents and copyrights were never intended to mean “I own that idea!” No, intellectual property was born entirely as a pragmatic tweak, offering creative people a subsidy in order to draw them into openly sharing their discoveries… so that others might use and improve them and we get the virtuous cycle of positive-sum improvements, ever-accelerating knowledge, skill and wealth.

Let there be no mistake. That is one of many ways that regulated competition delivers on the promise of markets and Smithian capitalism vastly and demonstrably far better than anything that ever resembled laissez faire or Randian cannibalism festivals.

He brings this point back up later, in arguing that stronger IP laws make sense because, he argues, without such laws encouraging the publication of ideas, people will keep everything a secret, and that will actually hinder creation and innovation:

But Pavlovic is describing a specialized case. A situation in which things are already decidedly zero sum. In which your company knows that its competitors cheat. They steal IP and our Enlightenment civilization is all too often failing to do anything about it. As America and other western nations are failing miserably to protect western IP… the goose that lays the world’s golden eggs.

Reciprocity has broken down and with IP no longer protected, innovators must fall back on the old ways. Concealment. Trade secrets. Squirreling away your tricks so the other guy won’t get to copy them.

Overall, that is the world we’re heading back toward, for a number of reasons. Because certain countries and companies are rampant intellectual property thieves. Because Western leaders won’t act to stop it. Because some western mystics and idiotic “legal scholars” actually believe that IP is based on principles of palpable ownership, and thus secrecy is somehow equivalent to patent declaration, instead of its diametric opposite!

In other words, he appears to be arguing that we need IP laws, because without it, everyone would keep stuff secret, and that would be bad. But... I'm not sure reality agrees with that sentiment. First of all, it ignores the idea that many (if not most) ideas you simply can't keep secret. It's as if he's relying on the myth that patents really "disclose" new ideas that others had no idea about. That's extraordinarily rare. For many products, if they're in the market, they're no longer secret, whether or not there are any intellectual property laws around them. Second, he seems to ignore the idea that there may be other, non-IP law-based reasons for people to share their ideas/inventions/innovations/creativity. For many people there are tremendous reasons: whether it's to sell a product or (often more importantly) because sharing and opening up one part leads others to make your work more valuable and useful.

In fact, if you look at the research, much of it suggests that in the absence of IP (or, at the very least, with much weaker IP) you actually get a massive positive sum game, because there's much more benefit to sharing ideas, rather than hoarding them and locking them up behind a toll booth. The more widespread sharing of ideas, leads to greater innovation and output, making it very much a positive sum game.

I will state, up front, that I am mostly posting this because it's hilarious -- but there is a bigger point, which we'll get to. For reasons that aren't entirely clear, Aaron DeOliveira sent over this story from GOOD, analyzing the question: is a burrito a sandwich? This may, at first, seem like a silly debate. But, as the article notes early on, it actually was the crux of a legal dispute not too long ago, in which Panera Bread sought to block a Qdoba Mexican Grill from opening in the same shopping center, pointing to a clause in its contract promising that it would be the only "sandwich shop" in the complex. Panera argued that a burrito -- the main item Qdoba sells -- is a sandwich. In the judge's ruling (pdf), he used both the dictionary and his own experiences to claim that a sandwich should involve two pieces of bread. The burrito uses a single tortilla of course, thus, Qdoba opens, and Panera has to live with it.

From there, GOOD author Amanda Hess dives deep into the debate, and I can't emphasize enough how worthwhile it is to read the whole thing, but here is a snippet to whet your appetite:

Can a food become a sandwich simply by calling itself a sandwich? Does an open-faced sandwich constitute a sandwich, despite the lack of sandwiching employed in its construction? If so, is bruschetta a sandwich? Buttered toast? Pizza?

What if you fold the pizza in half? Must the unifying exterior item be split in two in order to constitute a sandwich? Is a hot dog a sandwich? A submarine roll split in the middle, but with a hinge still hanging on? Is an omelete a sandwich?

A note on methodology: Is it necessary to consume the sandwich with one's own two hands? If one were to douse a sandwich in gravy, would it neutralize the sandwich, converting it into nothing more than a bread-based entree?

If we'll accept a hinge in a sandwich, what about a filling that's encased on two sides? On all sides? Is a kolache a sandwich? A pasty? A corn dog? A calzone? An egg roll? A dumpling? A pop tart? Is a wrap a sandwich?

Is a burrito a sandwich?

It goes on from there, and just gets better, including conflicting governmental definitions of just what constitutes a sandwich, and even under whose regulations sandwiches fall ("a sandwich built with two slices of bread is controlled by the FDA; only an open-faced sandwich lies within the USDA's purview"). Hess apparently reached out to notable "experts" on sandwiches -- and at least one burrito expert -- none of whom seem to fully agree on the sandwichness of a buritto.

As I said, it's an amusing and absolutely worthwhile read, but it also highlights a key point: something that seems simple, when tossed out in normal conversation, can often become very complex under the law. We see this all the time with things we write about. Take, for example, copyright law. People who favor stricter copyright law, seem to think that it's easy to extend copyright law without it negatively impacting creation or innovation. They say things like "infringement isn't free speech" and "how can company X not know that content Y is infringing?" Yet, under the law, this is a lot more complex. Copyright claims can pull down non-infringing content, and that's where things get tricky, and what may seem "obviously" infringing in some cases, often isn't so obvious at all. Similarly, with stories about the Computer Fraud and Abuse Act, the law was put in place to deal with computer hacking. It was specifically about "unauthorized access." Yet, over time it's been twisted and changed to mean all sorts of things, including companies charging employees under the act for doing something personal on a computer -- because it's not "authorized."

In some ways, this is a defense of the need for lawyers -- even if they can be easy targets to hate. In a world where you can spend so much time arguing over the sandwichness of a burrito, there's a need for lawyers. But, it's more a warning about thinking that passing new laws and interpreting them is "simple," and that the resulting laws will not be abused in dangerous ways. This is why we're so concerned about many of the legal changes that come from certain industries, where they're always presented in a simple and straightforward manner, without any concern for the eventual unintended (or sometimes sneakily intended) consequences.

Genetically modified organisms (GMOs) are invading the food chain. Some folks say that the trend to grow more and more GMO food is almost a requirement to keep up with the world's demand for food. Others disagree, arguing that there are alternatives to GMOs that could meet demands without potentially endangering our fragile ecosystem. Here are just a few examples of the seemingly unstoppable development of GMOs for food.

• If there was a baby formula product that came from a cow and was more similar to human breast milk, would mothers be wiling to try genetically modified cow milk? The Magic8ball says: "My sources say no." [url]
• The Gates Foundation is working on GMO crops to increase food production in developing nations. But there are ethical questions about using the developing world as an experiment for GMO foods. [url]
• The FDA has reviewed the first genetically modified animal for human consumption -- the AquAdvantage salmon. This fish grows bigger and faster than wild Atlantic salmon, and it's made sterile so its genes won't get loose in the environment. [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.

For some time now, we've been noting that the US keeps trying to force countries around the globe to put in place protectionist policies that protect American monopolies, and hilariously pretending these are "free trade" agreements. And today is no different. The White House is tooting its own horn for signing three new anti-free trade agreements today, with South Korea, Panama and Colombia, pretending that these are free trade agreements. The reality, of course, is that they are protectionist plans that will do more harm than good to US interests.

While the White House leaves this part out of its patting itself on the back, these agreements all export the worst of US copyright law to these other countries, forcing them to put in place laws that are against their own best interests, and which serve only to falsely prop up the entertainment industry's bad business model. This is why the MPAA and the US Chamber of Commerce are cheering it on so strongly.

And, of course, this is just the beginning. The Treasury Department put out its own blog post celebrating the anti-free trade agreements as well, in which they ominously warn that things are going to get worse, as they "build on" these agreements to get the dreadful Trans-Pacific Partnership signed. As you may recall, the TPP has become the way that the US Trade Rep plans to sneak in everything that it failed to get in ACTA... and it's being even more secretive about TPP than it was about ACTA. It's nothing but a government handout to Hollywood. This is not "historic" and it's not about "free trade." It's about protectionist anti-free trade policies that will do long term harm to US innovation and economic interests. What a disaster.

We've been covering the lawsuit filed by photographer Dave LaChapelle because the video for Rihanna's song S&M appeared to mimic some of the ideas found in some of his photographs: Of course, we thought that there was an idea/expression dichotomy in copyright law that says you can't copyright the idea -- just the expression. So we thought that a judge would make quick work of the case. Instead, the judge confirmed what we already suspected: the idea/expression dichotomy is a total and complete myth, and the case could move forward. This was reasonably troubling for lots of folks -- though certainly for Rihanna.

So it came as little surprise that Rihanna has "settled" the lawsuit with LaChapelle, meaning that she gave him a bunch of cash to go away. The lesson in all of this? Homage is expensive. You're best off not bothering.

Over at our Step2 platform, author Athol Kay, who's written a book called The Married Man Sex Life, is asking for some help with his business model. He's been struggling a bit with the question of whether or not infringement is a serious problem for his business model. I first became aware of Kay when Marc Randazza pointed me to a blog post by his associate, J. DeVoy, claiming to be a perfect example of how individuals were hurt by infringement. Except... almost none of that was true. It was in response to Kay being fooled (like many others are) by bogus torrent search engine stats that imply that anything that you type in has been downloaded thousands of times. Kay admitted this error (and bizarrely, DeVoy has not updated his post with a correction), but Kay is still concerned about his business model, and how infringement might impact it.

After talking to both of us, Randazza put Kay and me in touch, and encouraged him to try out my CwF+RtB concept, rather than looking at litigation. Kay agreed to present his business model question on the Step2 platform to see if the community here might help him. He's already got some interesting ideas in place, including coming out with an updated version of the book each year, and then dropping the price of the previous year's ebook version down to $0.99 from the usual $9.99. As I discuss in a response to his question, I actually think the $9.99 itself is limiting, given the research we've seen on ebook pricing, which suggests the sweet spot for ebooks is under $3.99 -- below which many, many more people seem willing to "take a chance" on a book they don't know that much about. But I still like the idea of market differentiation through force-depreciating the older version of the book, while offering up additional value each year.

But, there's a bigger question here about business models, and what else an author like Kay can do to try to build out his career as an author and "expert" in this particular field. I have some ideas, but I'm sure folks here have some thoughts too, so I'll just point everyone to his discussion at Step2 and see what you guys have to say.

For a little over a week now, we've been receiving emails from various actors and musicians, telling us that they've been getting emails from various entertainment industry giants, telling them to join a new "grassroots" coalition called CreativeAmerica, whose main purpose is to advocate for passing the PROTECT IP censorship bill. The whole thing is clearly an astroturf campaign. It was registered via domains-by-proxy to hide who really bought the domain name. It highlights the video that was secretly created and owned by NBC Universal. It includes the totally false claim that "there's no such thing as a free movie."

If you dig into the website to figure out who's really behind it, it claims that it's a "grassroots organization," but fails to name a single creative individual who was behind putting the group together. Instead, it lists out the following companies and organizations who really put the site together (amusingly, they even block you from cutting and pasting this part, so I just retyped it -- meaning I circumvented their DRM... come at me, entertainment industry):

CBS Corporation, NBC Universal, the Screen Actors Guild, Sony Pictures Entertainment, Twentieth Century Fox, Viacom, the Walt Disney Company and Warner Bros. Entertainment

Well, well. That's not a grassroots effort, folks. Now, the site also includes various unions, including the American Federation of Television and Radio Artists, the Directors Guild of America and the Screen Actors Guild and IATSE (stage hands, etc.). But these are the old school, out of touch unions that who have done little to nothing to help their members adapt to the times (often doing the opposite). Do we see any of the actually creative folks who have embraced new technologies, new methods of distribution and new business models? Nope.

In the meantime, how can the website seriously claim that it's a grassroots effort when it has every single major Hollywood Studio behind it. Do they think that people are stupid? And should we remind people that these are the same studios who have all sorts of scammy tricks for "Hollywood accounting" to make sure even the most successful films are never seen as profitable, allowing them to avoid paying royalties to the actual creative folks.

Next, if you dig into the website, they have a "send a letter to your elected officials" thing. And the real evidence that it's not a real grassroots effort? Just like other faux grassroots efforts, those agreeing to send the letter have no option to edit the letter. When groups like Demand Progress and EFF let you send letters about PROTECT IP, they let you edit them to your liking -- trusting people to express themselves.

But, this "Creative America" apparently does not trust its own members to be creative. The letter is 100% locked down. You can only send their text. Honestly, if a group supposedly representing creators won't even let its own members express themselves freely, you know that it's not actually about protecting "creative" America.

This is not a grassroots effort. This is not about protecting "Creative America." This is about protecting a few megacorporations who are scared of new innovations, afraid of their dwindling monopoly rents, and trying to force the rest of the world to go back to the way things used to be.

The AFP news agency (with its partner Getty) has a bit of a history with some rather odd copyright claims. You may recall the lawsuit that AFP was involved in after it yanked photos from Twitpic of the devastation after the Haiti earthquake without permission, credited the wrong photographer and uploaded them to Getty. Amazingly, once the real photographer called out AFP for this, AFP sued the photographer... and lost big time.

You might think this would lead AFP and Getty to be a bit more careful in how they attribute photographs and claim copyright over them... especially on breaking news stories. And yet... you might have heard how ex-Libyan dictator Gaddafi was caught and killed yesterday. You also might have heard that his capture and beating were captured on video by some of the rebel soldiers who helped capture and kill him. Now, the pictures and video can be pretty graphic, so don't click on the following link if you're a bit squeamish. It's a link to a Getty Images page of a screen capture of the mobile phone video. In the info, however, the cameraphone operator is not named. If you can't see that, it's the metadata beneath the photo, which notes that it's a video grab from a mobile phone of a National Transitional Council (NTC) fighter... but then says that the credit, if anyone uses the image, should go to: "AFP PHOTO/PHILIPPE DESMAZES (Photo credit should read PHILIPPE DESMAZES/AFP/Getty Images)."

Now, to be fair, according to the AFP, Desmazes was, in fact, on the scene, and took a photo of the cameraphone screen to get the shot:

"I was covering the fall of Sirte and heard gunfire a little further west of where I was. The rebels explained to us that Kadhafi’s men had tried to break out at night a little further west. There had been fighting but this sounded more like celebrations than fighting," said Desmazes. "So I asked the fighters to take me there. When I got there, they showed me big concrete cylinders in which they said Kadhafi had been hiding when he was captured. A little further on, I noticed some fighters gathered around a phone. I was lucky because I was the only one to notice them. The owner of the phone showed me the arrest of Kadhafi which he had filmed a few minutes earlier. Given the ambient light, it was very difficult to take a screen grab. The fighters gathered round and gave me enough shadow to take the shot. I was really lucky," he said.

So it's not as if he's just claiming credit for something he had nothing to do with, but it still seems a bit questionable that Desmazes/AFP/Getty have any real claim here. It would seem like this is a very derivative work from the original, without much creative input that would give a copyright to Desmazes. At the very least, it seems like they should give credit to the guy who shot the actual video. Obviously, it took some effort for Desmazes to get his shot of the cameraphone screen (and I must admit, the quality of the image is surprisingly sharp if it's a camera shot of a smartphone screen), but is that enough to get a separate copyright?

And if we take this thought process to the logical conclusion, since Desmazes/AFP get to claim a copyright for taking a photo of a cameraphone screen, if I take a photo of my computer screen showing that same photo, and crop it appropriately, now I could claim to be the copyright holder on the same image? That seems like quite a slippery slope.

We recently mentioned the latest round of Microsoft's antitrust fight, dating back to some of its actions around Windows 95. To be clear, I think the action against Microsoft is pretty silly. It's pretty clear that the market is quite capable of dealing with any perceived Microsoft "monopoly" and routing around it. That said, one thing that is quite stunning in all of this is the sheer hypocrisy from Microsoft in discussing this case, as compared to Microsoft's own efforts to drag Google into an antitrust battle as well. Now, some will shrug and say that this is basic self-interest on Microsoft's part. It's always going to favor things that help Microsoft. But it certainly seems to weaken the validity and credibility of Microsoft's arguments.

Back in March, we noted just how ridiculous this was, when Microsoft complained about Google to the European Union, whining that Google made it difficult for Microsoft's platforms (mainly the Bing search engine and Microsoft's mobile platform) to access YouTube video data. At the time Microsoft's General Counsel sure seemed to insist that Google had a duty to engineer its platform to make life easier for its competitors. Here's the quote we highlighted back in March:

First, in 2006 Google acquired YouTube--and since then it has put in place a growing number of technical measures to restrict competing search engines from properly accessing it for their search results. Without proper access to YouTube, Bing and other search engines cannot stand with Google on an equal footing in returning search results with links to YouTube videos and that, of course, drives more users away from competitors and to Google.

Second, in 2010 and again more recently, Google blocked Microsoft's new Windows Phones from operating properly with YouTube. Google has enabled its own Android phones to access YouTube so that users can search for video categories, find favorites, see ratings, and so forth in the rich user interfaces offered by those phones. It's done the same thing for the iPhones offered by Apple, which doesn't offer a competing search service.

Note how in both paragraphs, Smith seems to clearly suggest that Google has a duty to engineer its products to make life easier for Google's own competitors.

Okay. Now, jump over to the ongoing antitrust lawsuit against Microsoft by Novell. And note how Microsoft's lawyers appear to argue directly against this idea that a company should have a duty to build its products to help competitors:

Microsoft attorney Steve Aeschbacher said Novell is saying it wishes Microsoft would have developed Windows 95 differently than it did.

"The law basically doesn't require people to design their products to the whim or demand of other companies. You get to design your own products. There isn't any legal obligation for us to do what they wanted us to do," he said.

Seems to directly contradict what Microsoft said just months ago when it was talking about Google. Furthermore, in Microsoft's motion for summary judgment (pdf) in the current case -- a brief you can be sure MS General Counsel Brad Smith was well aware of -- Microsoft again appears to argue the exact opposite of what it said in regards to Google just months ago:

The allegations underpinning count I are premised on the notion that Microsoft had some affirmative duty to assist—or to continue assisting—a competitor. Novell complains that Microsoft harmed its office productivity applications designed for use with Windows 95 by (i) discontinuing the formal documentation of six APIs in pre-release versions of Windows 95, (ii) failing to include in Windows 95 certain functionality that Novell would have liked, and (iii) failing to endorse Novell’s applications by granting Novell a license to use the Windows 95 logo. These allegations are not cognizable under the antitrust laws.

The objective of our antitrust laws is to promote competition. Successful companies—even monopolists—are encouraged to compete vigorously. Foremost Pro Color, Inc. v. Eastman Kodak Co., 703 F.2d 534, 544 (9th Cir. 1983) (“A monopolist, no less than any other competitor, is permitted and indeed encouraged to compete aggressively on the merits.”). Monopolists are encouraged to innovate and are entitled to retain the benefits of such innovation. Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 281 (2d Cir. 1979). Moreover, a monopolist is not required to help its smaller rivals or shield them from the rigors of competition. Olympia Equip. Leasing Co. v. Western Union Tel. Co., 797 F.2d 370, 375-76 (7th Cir. 1986) (“A firm with lawful monopoly power has no general duty to help its competitors.”); Twin Labs., Inc. v. Weider Health & Fitness, 900 F.2d 566, 568 (2d Cir. 1990) (“Antitrust law . . . does not require one competitor to give another a break just because failing to do so offends notions of fair play.”).

I agree very much with the Microsoft filing in this case. Antitrust law shouldn't be about propping up competitors or requiring a company to engineer its products in a certain manner to help competitors. And while I understand that Microsoft's position will shift depending on whatever benefits Microsoft best, it seems like the company is being ridiculously short-sighted in being so blatantly hypocritical and inconsistent. It hurts its chances in this particular lawsuit, and it hurts Microsoft's overall credibility. While I understand that Microsoft thinks tossing around antitrust accusations at Google may make life difficult for Google, it seems like both companies would be a lot better off if neither of them tossed antitrust arguments at the other. It seems only likely to backfire.

As we've discussed in reference to PROTECT IP, those who are in favor of censorship always have some sort of convoluted rationale for why it's not really censorship. They'll always argue that it's something different. In the case of PROTECT IP, obviously, they claim it's to stop infringement -- ignoring that it's still censorship. So it's little surprise to see the Chinese sounding just like PROTECT IP supporters in defending the Great Firewall of China by claiming that it's not about censorship at all. A government spokeswoman defending China from a US diplomat's complaint about the Great Firewall insists that it supports freedom of speech... but it has to filter and block websites online to "safeguard the public." And it claims it does so "in line with internationally accepted practices." Indeed, and PROTECT IP is just about "safeguarding some companies." There's always an excuse, but it never changes the simple fact that censorship is censorship.

Pitabred sends in the distressing but completely unsurprising news that the TSA, with the cooperation of the Tennessee Department of Safety and Homeland Security, is now trolling for terrorists on the open highway.

The Tennessee Department of Safety and Homeland Security on Tuesday partnered with the U.S. Department of Homeland Security's Transportation Security Administration (TSA) and several other federal and state agencies for a safety enforcement and awareness operation on Tennessee's interstates and two metropolitan-area bus stations.

But this was no ordinary random search of vehicles. This one had its own acronym:

The agencies conducted a Visible Intermodal Prevention and Response (VIPR) operation at scale complexes where trucks and large vehicles are weighed. The VIPR operation was also conducted at two regional bus terminals in Nashville and Knoxville.

As awesomely G.I. Joe-ish as VIPR sounds, one would think that random searches of vehicles might run afoul of the Fourth Amendment. The word from above is: Don't worry about it. You're probably just thinking too much. Highway patrol Colonel Tracy Trott offers some much needed perspective:

The random inspections really aren't any more thorough [than?] normal, according to Tennessee Highway Patrol Colonel Tracy Trott who says paying attention to details can make a difference. Trott pointed out it was an Oklahoma state trooper who stopped Timothy McVeigh for not having a license plate after the Oklahoma City bombing in the early 1990s.

Question, the first: If these inspections aren't any more thorough than "normal," why the extra personnel and additional super-cool acronym?

Question, the second: An anecdote about catching someone after they've already performed an act of terrorism is hardly comforting.

Still not convinced that there's a whole lot of "nothing to see here" contained within this new operation? More empty statements are available to wave away your concerns:

Larry Godwin, deputy commissioner of TDSHS, said the checks at the weigh stations were about showing the people of Tennessee the government is serious about transportation safety, and to make sure the state is ready in case something were to happen.

I'm not going to speak for anybody else, but I find that the increased presence of law enforcement and various geared-up ancillaries rarely makes me feel "safer." Usually a swarm of drug/bomb sniffing dogs and SWAT-team members leads me to believe that either a.) something bad has happened or b.) something bad is going to happen. While I would agree that this sight would make me believe that the government is indeed "serious" about something, it does very little to convince me that it is "ready" for anything.

If you (like me) are still feeling a bit less than safe (and perhaps, more likely to be randomly searched), take heart! Your fellow citizens are being recruited to turn you in, should you happen to do something perceived as "suspicious," most likely at a high rate of speed.

Agents are recruiting truck drivers, like Rudy Gonzales, into the First Observer Highway Security Program to say something if they see something.

"Not only truck drivers, but cars, everybody should be aware of what's going on, on the road," said Gonzales.
It's all meant to urge every driver to call authorities if they see something suspicious.

"Somebody sees something somewhere and we want them to be responsible citizens, report that and let us work it through our processes to abet the concern that they had when they saw something suspicious," said Paul Armes, TSA Federal Security Director for Nashville International Airport.

While I'm fairly sure that's either a misquote or just a miswording by Armes, the idea that the TSA might "abet" (aid, encourage, incite, foster, promote) concerns seems very plausible. After all, without the vague threat of terrorist activity, where would they be? (Look under your vehicle.)

Let's briefly review the Fourth Amendment and see how this new effort checks down:

The Fourth Amendment... guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause.

Reasonable search? Probable cause?

Tuesday's statewide "VIPR" operation isn't in response to any particular threat, according to officials.

Ah. Well, with the TSA moving onto the highway (having already made its presence known in bus stations and subways), it's presumably only a matter of time before it decides that terrorists have been chased out of the skies and off the road by its efforts, and at that point, there's really only one place left to look for potential troublemakers.

The always thought-provoking Yochai Benkler, has a new paper, which, unfortunately (and pointlessly given Benkler's key points -- see update below), is locked up behind an MIT paywall. It explores the "new vector" for censorship found in both the attacks on Wikileaks and the PROTECT IP Act: censorship by forcing service providers to not do business with certain websites. As the abstract notes:

The WikiLeaks affair and proposed copyright bills introduced in the Senate are evidence of a new, extralegal path of attack aimed at preventing access and disrupting the payment systems and advertising of targeted sites. In this model, the attacker may be a government agency seeking to circumvent constitutional constraints on its power or a private company trying to enforce its interests beyond those afforded by procedural or substantive safeguards in the law. The vector of attack runs through the targeted site's critical service providers, disrupting technical services, such as Domain Name System service, cloud storage, or search capabilities; and business-related services, such as payment systems or advertising. The characteristics that make this type of attack new are that it targets an entire site, rather than aiming for removal or exclusion of specific offending materials; operates through denial of business and financial systems, in addition to targeting technical systems; and systematically harnesses extralegal pressure to achieve results beyond what law would provide or even permit.

As he notes, the law has historically focused on narrowly targeting any attack on speech by removing just the offending works. That's about the only way that such efforts could line up with the First Amendment (and some may reasonably even argue that point). Yet with government pressure from the likes of Senator Joe Lieberman and the new PROTECT IP Act, they now go for scorched earth policies in which a variety of service providers are suddenly pressured or required to no longer do business with the sites in question. Payment processors, "information location tools," ad networks and DNS providers are all told they have to cut off the offending site. While the site itself may not be touched, the goal is to effectively starve such sites out, by blocking most reasonable services that such a site needs to exist.

While putting tremendous compliance burdens on those third party service providers, it also goes against the very fundamentals of the First Amendment in that it doesn't merely seek to stop illegal speech, but takes a broad attack against entire sites. The risk here was clearly laid out earlier this year by over 100 law professors including many of the most respected in the field. The other side has only trotted out one lawyer on their side: Floyd Abrams (who, while famous as a First Amendment lawyer, also does a lot of work with Hollywood). Supporters of this massive threat to the First Amendment keep pretending that as long as they say "Floyd Abrams says it's fine!" that they can ignore everyone else raising serious and significant First Amendment concerns. The problem, of course, is that even Abrams' "support" is pretty weak.

In fact, if you read what Abrams actually says (pdf), at points he appears to come out against provisions of PROTECT IP as violating the First Amendment. Such as this:

Any bill providing injunctive relief should be limited to halting infringement and prohibiting future infringement online, not acting as a prior restraint on protected speech in the future. For example, if a site or domain is seized or blocked for infringement, operators must be free to post all their non-infringing content elsewhere, as well as on their original site, once the infringing content is removed.

Except, as we've seen with the Puerto 80 case, the government does not allow site operators to repost non-infringing content on their original site at all. Given that Benkler, in the paper above, compares PROTECT IP to the Wikileaks situation, it should equally come as no surprise that Abrams last year ran into some problems for misrepresenting Wikileaks' actions in trying to support censoring that site.

In the long run, I find it difficult to see how one can be intellectually honest and side with Abrams on these issues, as compared to Benkler, who makes a pretty compelling case that these kinds of attacks on free speech are something to be worried about.

Update: Benkler sends over a link to a non-paywalled version (pdf).

Last month we wrote about Europe retroactively extending copyright, which, in effect, seized works that were supposed to go into the public domain. A study found that the cost to the public was 1 billion euros. To date, we have never seen a reasonable justification for retroactive copyright term extension. The purpose of copyright is to benefit the public by inspiring new works, by giving the creator a temporary monopoly. It makes no sense to retroactively change the deal, because obviously the deal was sufficient at the time the content was created. Nothing in retroactive extension increases the incentive for new works. If anything, it does the exact opposite -- it gives the record labels more incentive to keep squeezing money out of old songs, rather than to invest in new ones.

So it's disappointing to hear that Jamaica appears poised to follow suit and extend copyrights from 50 years to 70 years as well. In the video below, it starts off with an impassioned plea by a recording industry representative, who misrepresents some research. He notes a WIPO paper that says the copyright industries' return on investment is higher than other sectors. That may be true, but that is almost entirely unrelated to copyright term extension. There can be investment in the same sectors without copyright, and just because the copyright is extended, there is no reason to believe there is greater investment in those industries. The basic fallacy presented by Evon Mullings, is the idea that retroactive extension leads to greater investment. In fact, as noted, it gives the labels less incentive to invest in new works.

Unfortunately, the speaker after Mullings is the Minister of Culture, Olivia Grange, who flat out says: "You won't have to advocate. You won't have to fight for it. It is going to be done." This is especially ridiculous when it comes to Jamaican culture and Jamaican music. For many, many years, we've spoken about how Jamaican music was a great example of the success of embracing a remix culture. In addition there's been plenty of recent research talking about the explosive creativity in Jamaican culture spurred on by technology, not by copyright law... It's a shame that rather than understanding this, it appears the industry and politicians there are simply repeating myths and passing legislation that will significantly harm the public.

Earlier this year, the Congressional Research Service (CRS) did a legal review of ACTA to see if it conformed with existing US law. While the USTR tried to keep the report buried, it eventually came out -- and basically said that ACTA was drafted in a dreadfully confusing and opaque way. The issue? It's not even clear if US law conforms to ACTA, because ACTA can be interpreted in many different ways -- some of which suggest the US is in compliance, and some of which say we're not.

The EU Parliament's legal service recently conducted a similar review and came to an identical conclusion: ACTA may or may not be legal... depending on how you interpret it.

This should be seen as a massive problem. When you're crafting a giant international agreement that is binding on various countries (and, yes, the US pretends it's not binding, but the other signers insist it is binding, meaning under international law, they likely can hold the US to a claim that it's binding), the fact that it's so vague that what is and what is not legal under it is totally wide open to interpretation means you've drafted a really bad agreement that shouldn't be approved. In the meantime, any country signing such a document should be ashamed of itself, because it doesn't even know what it's bound itself to.