One of the recommendations made by the Hargreaves Review in the UK was that a text- and data-mining exception to copyright should be created, with the following explanation of why that made sense (PDF):

We therefore recommend below that the Government should press at EU level for the introduction of an exception allowing uses of a work enabled by technology which do not directly trade on the underlying creative and expressive purpose of the work (this has been referred to as “non-consumptive” use). The idea is to encompass the uses of copyright works where copying is really only carried out as part of the way the technology works. For instance, in data mining or search engine indexing, copies need to be created for the computer to be able to analyse; the technology provides a substitute for someone reading all the documents. This is not about overriding the aim of copyright – these uses do not compete with the normal exploitation of the work itself – indeed, they may facilitate it. Nor is copyright intended to restrict use of facts. That these new uses happen to fall within the scope of copyright regulation is essentially a side effect of how copyright has been defined, rather than being directly relevant to what copyright is supposed to protect.

Who could possibly object to that? Certainly not the UK government, which accepted the recommendation (PDF):

The Government will therefore bring forward proposals in autumn 2011 for a substantial opening up of the UK’s copyright exceptions regime on this basis. This will include proposals for a limited private copying exception; to widen the exception for noncommercial research, which should also cover both text- and data-mining to the extent permissible under EU law.

Nonetheless, the UK Publishers Association, which describes its "core service" as "representation and lobbying, around copyright, rights and other matters relevant to our members, who represent roughly 80 per cent of the industry by turnover", is unhappy. Here's Richard Mollet, the Association's CEO, explaining why it is against the idea of such a text-mining exception:

If publishers lost the ability to manage access to allow content mining, three things would happen. First, the platforms would collapse under the technological weight of crawler-bots. Some technical specialists liken the effects to a denial-of-service attack; others say it would be analogous to a broadband connection being diminished by competing use. Those who are already working in partnership on data mining routinely ask searchers to “throttle back” at certain times to prevent such overloads from occurring. Such requests would be impossible to make if no-one had to ask permission in the first place.

Large-scale academic content mining is a pretty new and specialized field, so it's hardly likely that there is going to be a sudden mass attack of crawler-bots taking down sites. Publishers would have ample time to expand their infrastructure to handle demand as it developed, which would be to their advantage: the more their holdings are mined, the more they are likely to be cited and read. And if content mining did take off suddenly, that would suggest there is a huge pent-up demand that the current system of licensing has stifled - one more reason why it should be abolished.

Then there is the commercial risk. It is all very well allowing a researcher to access and copy content to mine if they are, indeed, a researcher. But what if they are not? What if their intention is to copy the work for a directly competing-use; what if they have the intention of copying the work and then infringing the copyright in it? Sure they will still be breaking the law, but how do you chase after someone if you don’t know who, or where, they are? The current system of managed access allows the bona fides of miners to be checked out. An exception would make such checks impossible.

This makes no sense. Infringing uses are either easy or hard to find using search engines. If they are easy to find, they are easy to pursue. If they are hard - internal uses, for example - then even miners with "bona fides" will be able to use copyright material in exactly these ways, and the publishers won't know.

Which leads to the third risk. Britain would be placing itself at a competitive disadvantage in the European & global marketplace if it were the only country to provide such an exception (oh, except the Japanese and some Nordic countries). Why run the risk of publishing in the UK, which opens its data up to any Tom, Dick & Harry, not to mention the attendant technical and commercial risks, if there are other countries which take a more responsible attitude.

The fact that some countries are already allowing content mining ought to be a hint that the other two fears are groundless. Instead, these inconvenient facts are dismissed out of hand as if the experience of "the Japanese and some Nordic countries" somehow doesn't count for UK publishers.

But as it turns out, there's actually a simple way to allay all of Mollet's fears at a stroke. At the beginning of his post he writes:

In coming to its recommendation on content mining, the [Hargreaves] Review drew heavily on the views of various strands of academia, most of which claimed that their vital research was being hampered by the lack of such an exception. The process of requesting licences of publishers was too time-consuming, it was claimed, and so an exception would make life easier.

This confirms that the text-mining issue is only being considered in an academic context – it's about giving scholars the ability to extract extra information from academic articles by performing analyses on their texts.

Now, most of that academic research is funded by the public through government grants to educational institutions and researchers, both in the UK and elsewhere. The open access movement has been pointing out for a decade that it would therefore not be unreasonable if the general public had free online access to the results of all this research it paid for - the articles published in academic journals. It would also allow many more scholars to access such publicly-funded work – including those who wanted to carry out text mining.

This would answer Mollet's fear that publishers' "platforms would collapse under the technological weight of crawler-bots." Since the papers could be freely downloaded from any one of the servers holding copies around the Internet, and then analysed on the researcher's own machine, there would be no crawler-bots involved at all. Open access would also eliminate the commercial risk: after all, what's the point in pirating material that is already freely available?

As for that competitive disadvantage Mollet is worried about, moving their academic titles to open access would actually give UK publishers a big advantage, since open access continues to sweep through the academic sector. It would mean that UK publishers were leading the way, rather than dragging their heels at the back.

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No one I know puts "scale" into perspective better than Randall Munroe at xkcd. If you haven't seen the latest, you should take the time to dive into what may be his largest image ever (and he's known for creating large images) dealing with money. I warn you, though, it may suck up a lot of time as you go through it: While he's offering a poster of it for sale (along with some of his other "giant" images), I'm not sure even a poster does something like this justice, which is why he's also offering it as a "custom-printed four-poster tile pack. It comes as four individual 36"x24" posters which can be tiled on the wall, for a six-foot-wide mural view of the chart, allowing you to clearly read even the finest details." I may have to put that on my holiday wishlist.

This post is part of an Intel-sponsored series of posts we'll be doing here at Techdirt on the topic of innovation. Posts in the series consist of a video interview of myself (which you'll see below), the post, and another video interview with an Intel representative and others. That second video, obviously, is content from Intel, but my video and what I've written here was done with complete and total editorial independence. We hope you enjoy the content and take part in the overall discussion, either via the comments or through the interactive ad unit to the right of the post.

When most people think about wireless technologies today, they think about the fact that it makes it easier for them to connect their computers without having to plug in. Or that it lets data flow to their smartphones. But the overall impact can be seen as being much more profound. First up, here's a short video of me talking about the impact of wireless technologies: I think it has become easy for many of us to take for granted the power of wireless connectivity. It's almost difficult to remember what life was like before we had data at our fingertips anywhere, at any time on any device. And, yet, it wasn't that long ago that this wasn't true at all. WiFi has only been around for about a dozen years. Mobile cellular data (at any reasonable bandwidth) is much more recent. And, yet it's become so embedded in our lives. The idea that you can get directions anywhere, pull up information about any shop or restaurant, or even access any content at all is so powerful, yet almost feels mundane already.

But think about just how powerful it is in areas that were barely connected at all in the past. We've read stories about communities in developing nations where small players, who only used to have access to the nearest market, can suddenly reach out to others, and actually allow for competition for their products. That can be a massive change, in that it gets rid of a monopsony situation, allowing the poor in developing countries to get out of a never-ending cycle of poverty.

Similarly, wireless technology alone is enabling new careers and new types of businesses. There are the famous stories of women (and it's almost always women) in certain rural villages, who have built careers out of carrying around mobile phones that can be brought to different farmers, and used on a time-share-like system. This allows those farmers to have access to data and connectivity, but also has provided a way for those women to build up a career for themselves.

And think, then, about what begins to happen as the vast richness of data and information, that we now take for granted, reaches further and further into the far corners of the globe. The ability to do more, to build more and to connect more is going to reshape the lives of the many billions of underprivileged people of the world in ways that we can't even begin to fathom. The world just reached an astounding 7 billion people -- most of whom don't have access to many of the things we in the west take for granted -- including information. Wireless technologies have a chance to change that equation, and what comes out of it may be completely unexpected, but tremendously powerful. The idea that people who in the past may never have had an impact on the world may now be able to reach out and share their ideas and innovations with everyone is a revolution that is destined to bring powerful new ideas to the entire world.

Below you can see a video Intel put together, discussing how powerful wireless technologies can be.

If you're traveling for the upcoming holidays, you might think that a "passenger bill of rights" is supposed to have kicked in already, so you don't have to worry about being stuck on a plane sitting on the runway for more than 4 hours. That probably won't happen, but if the weather is bad, be prepared to have your flight canceled instead. Here are just a few interesting links on airline operations.

• A while ago, an open letter to American Airlines pleaded with them to re-design their website. A few years later, it looks like aa.com has become a bit easier on the eyes. (Too bad Mr. X had to be fired in the process, though.) [url]
• Ryanair got some attention for floating the idea of in-flight porn. But any flight with an internet connection already has porn... [url]
• The US govt has issued its first hefty fine ($900,000) for an airline keeping passengers waiting for more than 3 hours in a plane. However, airlines are simply canceling a lot more flights to try to avoid these kinds of penalties. [url]
• To discover more interesting business-related content, check out what the deal is on StumbleUpon. [url]  

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

While most of the attention over the past few weeks was given to SOPA and the House side of Congress in this debate on censoring the internet, the Senate side is becoming increasingly important. One of the ridiculous side effects of SOPA being so ridiculously bad is that PROTECT IP (the Senate version, also called PIPA) being just slightly less bad, means that some think that it can be seen as a "compromise." That's ridiculous, but it's part of the angle that supporters are using to try to rush that bill through the Senate in the near future. That's why the three Senators who stood up last week and spoke out against PIPA for the first time, Senators Rand Paul, Maria Cantwell and Jerry Moran deserve extra kudos. There's been massive lobbying support in favor of PIPA, and lots going on behind the scenes while the public was focused on SOPA on the House side. Having three Senators willing to stand up on principle, recognizing that the broad definitions and consequences of PIPA would hurt jobs, the economy and innovation, is something we don't see enough of these days. If one of these is your Senator, you should reach out and thank them for standing up for the benefit of society, rather than the benefit of big time corporate lobbyists.

I have to admit that I was pretty sure I've written about this case before, but in searching through the archives, I can't find it. So, here's the quick summary of Comins v. VanVoorhis. Christopher Comins, a wealthy Florida businessman, found out about some dogs running around some cows in a field owned by a business associate. Comins, apparently believing the dogs were wolves, went to the field (with permission of the owner) with some guns and shot the two dogs over and over again. Originally, he claimed self-defense, but after the following video appeared on YouTube showing the whole incident, that story didn't quite hold: The story made the national press. It was also picked up on many blogs, including this blog post by University of Florida student Matthew Frederick VanVoorhis. VanVoorhis' description of the events is certainly "almost novelistic," as the CitMedia link above suggests. As such it does assume a few things, such as emotions, and may not be perfectly accurate in the timeline. But does it rise to the level of defamation? That seems extraordinarily unlikely, at best, but Comins chose to sue him for defamation. Seeing as the story was covered widely by the media, and there's a video of the events in question, you might think that it's a bit strange to sue a random blogger who very few people read. Perhaps he really is "the easiest target," as some suggest. If anything, it had all the hallmarks of a SLAPP suit, especially since VanVoorhis' post also questioned Cumin's connections to politically powerful figures, and how that might impact any lawsuit concerning the shootings.

Either way, despite the video, Comins ended up being acquitted of the shooting, with the judge claiming that shooting a couple dogs at extremely close range was not torturing an animal. As the link in this paragraph notes, it seems like that's the kind of question a jury should answer, rather than a judge.

As for VanVoorhis, it turns out that the case against him was also shot down, but on specific procedural grounds. Basically, under Florida law, you have to provide specific notice before suing for defamation. VanVoorhis insists no such notification was given. Cumins insists that it was but there was a procedural mistake in letting the court know. Either way, the court granted summary judgment, solely on that issue, rather than discussing any of the free speech issues.

VanVoorhis, represented by Randazza Legal Group (whose cases we seem to write about a lot around here...), followed up by pushing for sanctions, claiming that Comins' lawyer falsely told the court that VanVoorhis had been notified under the law. That motion was denied, though apparently the court called it "a very, very close call."

Comins... in response, appears to have simply filed a new defamation lawsuit against VanVoorhis, using statements from the blog that VanVoorhis set up to cover stories related to the lawsuit itself. I have no idea if the statements in question are actually libelous (though, the bar for defaming a public person, like Comins, is substantially higher than someone else). But, either way, I do question the wisdom of suing yet again, especially suing someone to whom he already lost a lawsuit. It certainly feels like just another attempt to effectively retry the same lawsuit, which still has the feel of a SLAPP. It's just that Comins and his lawyer found different quotes to use.

Of course, every time Comins takes action like this, it just brings the original video and the original story back into the spotlight. I can't see how that helps his image at all. One of the things in defamation cases is that you're supposed to try to take actions to minimize the damages. Suing yet again doesn't seem likely to do that.

Late last week and over the weekend, supporters of SOPA started pushing a slightly ridiculous idea that a bunch of big tech companies "supported SOPA." This was based on the fact that the oftentimes extremist organization, the BSA, had come out in favor of SOPA, and a few people chose to believe that meant every member of the BSA -- including companies like Apple, Intel and Dell -- supported SOPA. The attempt to pretend that Apple must support SOPA was angering a lot of Apple fans, and it appears that something happened behind the scenes.

The BSA has now come out with a blog post "clarifying" its position, which seems a lot more like completely backing down on its position, and admitting that SOPA is way too broad and would have serious unintended consequences:

Valid and important questions have been raised about the bill. It is intended to get at the worst of the worst offenders. As it now stands, however, it could sweep in more than just truly egregious actors. To fix this problem, definitions of who can be the subject of legal actions and what remedies are imposed must be tightened and narrowed. Due process, free speech, and privacy are rights cannot be compromised. And the security of networks and communications is indispensable to a thriving Internet economy. Some observers have raised reasonable questions about whether certain SOPA provisions might have unintended consequences in these areas. BSA has long stood against filtering or monitoring the Internet. All of these concerns should be duly considered and addressed.

John Carmack, the guy behind the Doom series of games, has alway been a supporter of open source software. He has in the past released the source code for the original Doom and Quake to the open source community. This open access has led to Doom and Quake being used in a variety of ways and has allowed numerous people to learn how to make games. It has really come as no surprise that Carmack has decided to open source the code for Doom 3. What is surprising though is that move has been held up due to an old patent infringement suit.

Back in 1999, Creative Labs filed for a software patent for a 3D shading technique called "depth fail". When Carmack was developing Doom 3, he independently invented the same technique. This led to some patent troubles that eventually ended with Carmack licensing the patent from Creative Labs. This old wound is now causing pain for Carmack once more. Because his lawyers are not willing to risk another lawsuit over the patent, Carmack is being forced to code a new solution to the 3D shading technique in order to work around the patent. This is holding up the the release of the code to the open source community.

Although the patent issues are a pain in the butt for those in the open source community, one nice thing is knowing exactly what patents you are infringing and exactly what areas of your software need to be reworked to avoid the problem. This is something that other patent holders are not willing to grant to those they are threatening, Take for example Microsoft and its claims that Linux and Android violate its patents. If MIcrosoft would just tell the open source community what it thinks is infringing, then the developers could just work around those issues. Instead, Microsoft insists on using its patents as a weapon to threaten companies into licensing deals. This behavior is well outside the bounds of the US Constitution's clause to "promote the Progress of Science and useful Arts".

Nancy Scola, over at Salon, has an excellent article about SOPA, which notes that it really is not a copyright bill at all, but about trying to regulate the internet:

Congress, the political press and lobbyists for the entertainment industries like to frame this fight as one between giants. In one corner, the MPAA, RIAA and others decrying the “lawlessness” of the Internet and in the other, Google, Facebook and other big tech firms defending their business. But SOPA isn’t just about corporate battles. For all the the rhetoric, this isn’t even really about copyright. This is about the Internet — and more to the point, the infrastructure and operations of the Internet that make the Internet the Internet. SOPA targets search engines, Internet service providers, ad networks and payment networks precisely because those components are so central to the functioning of the Internet. Those are digital forces that should be messed with only with the greatest of care.

She also notes that being against this bill doesn't mean being against copyright (as some SOPA defenders like to smear anyone who complains about the bill):

When it comes to talking about SOPA, it is important to remember this: You can think that “intellectual property” infringement (not only of movies and music, but knockoff Nikes sold online) is bad for the American economy and still think the legislation is a disaster. Not only would the bill likely do little to address the problem of online content fraud and counterfeiting, but it takes aim at the core features of the Internet that have contributed a great deal to the American economy.

Just because a bill in Congress claims it's going to do something doesn't mean it will. It's unfortunate that while some people are focused on debating the actual impact of the bill, many simply insist that what's on the label is what's in the can. That's clearly not the case with SOPA. The bill is designed to do much more, and it would represent a massive change to the way the internet functions.

Neelie Kroes is that rare thing: a politician who actually seems to understand digital technologies. Before she became the European Commissioner for Digital Agenda, her current post, she was European Commissioner for Competition, and in that capacity made a speech about open standards in 2008 that included the following interesting statements:

It is simplistic to assume that because some intellectual property protection is good, that such protection should therefore be absolute in all circumstances.

and

if we extend intellectual property protection for technology, then we should only do so when it is justified under intellectual property principles, i.e. on the basis of evidence that such extension will lead to more innovations and will therefore promote consumer welfare.

Those comments were about problems with the patent system, and now Kroes has brought her frankness to bear on copyright:

let's ask ourselves, is the current copyright system the right and only tool to achieve our objectives? Not really, I'm afraid. We need to keep on fighting against piracy, but legal enforceability is becoming increasingly difficult; the millions of dollars invested trying to enforce copyright have not stemmed piracy. Meanwhile citizens increasingly hear the word copyright and hate what is behind it. Sadly, many see the current system as a tool to punish and withhold, not a tool to recognise and reward.

That's pretty stunning stuff for an EU Commissioner to be saying, given the European Commission's whole-hearted support for ACTA, and its plans for IPRED 2. Kroes goes on:

We need to go back to basics and put the artist at the centre, not only of copyright law, but of our whole policy on culture and growth. In times of change, we need creativity, out-of-the-box thinking: creative art to overcome this difficult period and creative business models to monetise the art. And for this we need flexibility in the system, not the straitjacket of a single model. The platforms, channels and business models by which content is produced, distributed and used can be as varied and innovative as the content itself.

Again, that focus on new business models rather than ever-more punitive copyright enforcement is a refreshing recognition by a very senior European politician of the real problem facing the creative industries: their failure to adapt to the vastly-different business landscape created by the Internet. Kroes picks up on that theme in her conclusion:

There are many new ideas out there – ideas, for example, like extended collective licensing as practised in Scandinavia, or other ideas that seek to both legitimise and monetise certain uses of works. Are these ideas the right ones to achieve our goals? I don't know. But too often we can't even try them out because of some old set of rules made for a different age – whether it is the Berne Convention, the legislation exceptions and limitations on the VAT Directive or some other current law. So new ideas which could benefit artists are killed before they can show their merit, dead on arrival. This needs to change.

I can't set out for you now what the model should be and indeed it's not the kind of model that should be developed from the centre. Rather we need to create a framework in which a model – or indeed several models – can develop organically, flexibly, in ways that support artists.

I see how some European stakeholders see with horror the arrival of Netflix, or the expansion of iTunes. We need to react, not to be paralysed by fear. Let's take chances. As Zygmunt Bauman put it, "the function of culture is not to satisfy existing needs, but to create new ones".

So that's my answer: it's not all about copyright. It is certainly important, but we need to stop obsessing about that. The life of an artist is tough: the crisis has made it tougher. Let's get back to basics, and deliver a system of recognition and reward that puts artists and creators at its heart.

It's tremendously good news that Kroes has not only recognized these problems but is prepared to articulate them publicly. It suggests that at least someone within the European Commission gets it. Too bad, then, that Kroes seems to be as exceptional in that respect as in her grasp of the underlying digital technologies that are driving these huge changes.

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By now, I expect that many of you have heard or seen the reports of police in riot gear pepper spraying students at UC Davis late last week. If you haven't seen one of the many, many videos of the incident out there, this one is particularly popular and has a pretty good view of the police officer walking up and down the line of peaceful protesters with their arms locked, spraying them heavily with pepper spray: However, there appear to be dozens of other videos capturing the same thing from a variety of different angles. I just watched about a half dozen of them, and each one provides a little more insight or perspective into what happened. None of them make the police look good. This and other recent incidents of police pepper spraying protesters raise a few different issues (regardless of what you think of what people are protesting for). Let's discuss two of them quickly.

First, it's fascinating to see how protest is changing in the age of YouTube. In the past, photographs often captured iconic moments in similar situations. Or, in some cases, merely the stories of what happened. And while there can be something powerful and moving about a still photograph, the video of these latest incidents really lets you see the details, and I find such videos to be much more powerful in showing the full extent of what's happening. It makes it that much harder to cover things up or try to explain away the actions of the police. We've talked about why the right to record police is an important right for Americans, but in situations like this, it also shows not just the value of recording what the police are doing, but also the power of bringing millions of people around the world right into the situation of what happened.

Related to that is the fact that such a large percentage of people these days now carry handheld video cameras, often in their mobile phones. That we don't just get one angle on these stories, but coverage from pretty much every perspective, is really quite an incredible experience.

The other issue worth discussing is the long term unintended consequences of regulatory and legal battles against vague bogeymen without a thought to what happens. If you want to read a really fascinating opinion piece on what happened at Davis, you should read what Bob Ostertag had to say. Ostertag, among other things, is a professor of Technocultural Studies and Music at UC Davis, and his discussion is really fascinating -- directly calling out the administration for its bogus defense of the pepper spraying (and comparing it to a similar situation that was handled quite peacefully at Columbia). He goes on to highlight other ridiculous overreactions first within the UC system (at nearby Berkeley) and then elsewhere in the country, such as the pepper spraying of an 84-year-old woman in Seattle.

One of the key points he uses to summarize all this is the following:

Last week, former Seattle Police Chief Norm Stamper published an essay arguing that the current epidemic of police brutality is a reflection of the militarization (his word, not mine) of our urban police forces, the result of years of the "war on drugs" and the "war on terror." Stamper was chief of police during the World Trade Organization protests in Seattle in 1999, and is not a voice that can be easily dismissed.

Stamper's article is also a fascinating, yet disturbing read. He points to his own failings in 1999, but also how much worse things have become. He also points to some ideas for turning things around -- creating radically different police forces, with civilian involvement.

Part of me wonders if these two issues converge. The ability of people to so widely document the abuses -- and horrify the watching public -- will hopefully lead people to seek out the sorts of "radical" solutions Stamper suggests (and, yes, I do recognize the ridiculousness of suggesting that police work closely with civilians is considered "radical"). But part of me wonders about the likelihood that things just get worse. We see this elsewhere, where "law enforcement" or the government through declaration or regulation declares "war" on something, rather than trying to understand and deal with the underlying issues. It never helps solve the problem, and oftentimes serves to make it that much worse. But oftentimes it seems like once the moral panics and the "war on..." announcements have been made, politicians and law enforcement become totally committed, unable to back down, even as their "solution" makes things worse.

It's stories like these that should make us wary of jumping on any sort of moral panic that doesn't involve a true look at the underlying causes, and how to fix them, but rather seeks solely a stricter "enforcement" solution. What we see, over and over again, is that that level of "enforcement" becomes a weapon that is used more and more regularly and more and more indiscriminately. Even as some amount of transparency hopefully counteracts some of it, people get so committed that the situation moves far away from solving problems, and just creates more and more new ones.

We keep pointing out just how disastrous SOPA and PIPA look from a diplomatic perspective. Just as the US is going around talking about the importance of internet freedom, to start pushing a bill that involves censorship (and yes, it is censorship) looks really bad. SOPA supporters like to point to Hillary Clinton's letter that said there's no conflict between internet freedom and copyright enforcement. But she did not comment specifically on the bills at issue -- and furthermore her statement is wrong. There doesn't have to be conflict between the two, but you can't say there's never conflict between the two, because you could easily design a rule that proves otherwise (e.g., "we shut down the entire internet to prevent infringement.") The State Department, frankly, is having a really tough time straddling both sides of this debate, because everything they say about the importance of internet freedom acts as the perfect arguments against SOPA.

But, really, the true test of the diplomatic impact of SOPA on the international community is not what the State Department says... it's what those other countries say. And they seem pretty shocked that this is the path the US is going down. Here are two examples. First up, we have the Voice of Russia, noting that the US is joining China in censoring the internet:

The US and the West have long criticized China for stifling dissent and for censorship but now they are not only joining China but they are taking censorship even further and attempting to censor the whole world.

The international implications of SOPA are worrying for as experts claim: it appears that the US is taking control of the entire world. The definitions written in the bill are so broad that any US user who uses a website overseas immediately gives the US the power to potentially take action against it and enable them to force ISPs to DNS-block any foreign site.

On a global scale it grants the U.S. Government far-reaching powers to go after Web sites which it claims are hosting copyrighted content.... Not long ago the U.S. admitted that it was in a state of information warfare and that it was losing the war. So what do you do if you are losing the information war? You muzzle the messenger.

Considering Russia has a bit of a history using copyright law to stifle political critics... folks there certainly know exactly how censorship via copyright can lead to much more than just protecting a few companies.

Now, let's jump over to the Middle East, where Al Jazeera is pointing out the State Department's rank hypocrisy on this subject, assuming that Clinton's letter was, in fact, in support of SOPA, and showing how that seems to undermine the rest of the State Department's arguments for internet freedom around the globe -- especially when it comes to circumvention tools:

In the year and a half since, the State Department has had limited success promoting online awareness and circumvention tools in foreign countries. But given SOPA's incredibly broad definitions of which sites are liable under its censorship provisions - merely claiming the site "engages in, enables or facilitates" infringement is enough - it won't be long until the bill destroys social networks that spread news of protests and the anonymity software that keep activists protected.

Many tech groups worry social networks such as Facebook - which were instrumental in organising protests in Egypt - would be at risk under SOPA. Brooklyn Law School professor Derek Bambauer also argues YouTube, which hosts countless human rights videos, would be "clearly unlawful", since it allows users to upload videos that may contain copyrighted content. While Google and Facebook may have enough money and lawyers to fend off lawsuits and court orders without being shut down completely, emerging social networks in foreign countries would not. Any site hosting videos, even if they are used to draw attention to human rights abuses, will be easily derailed if an overzealous copyright holder decides to use one alleged violation to strangle the whole site.

But circumvention tools - which allow activists to foil internet censors and evade government surveillance - would be the bill's greatest casualties. While many are developed explicitly for human rights advocates, they can also be used to download copyrighted content. Tor, the anonymising software that masks users' IP addresses that was instrumental during Egypt protests, would be a prime target of copyright holders, despite being funded by the US government.

In fact, most of internet freedom programmes currently funded by State Department are in danger. Hillary has pledged millions of dollars to various companies to create a "shadow" internet "that dissidents can use to undermine repressive governments", according to the New York Times. But by endorsing SOPA, Hillary is giving the green light to copyright holders to destroy it. Virtual Private Networks, proxies, privacy or anonymisation software could all potentially be deemed illegal if they can also help get around SOPA's censorship mechanisms.

Even if Clinton truly believes that SOPA doesn't harm the US's diplomatic position on internet freedom around the world, it sure looks like large parts of the rest of the world disagree. The site TorrentFreak recently had a caption contest about a photo showing MPAA boss Chris Dodd sharing a hearty laugh with Chinese Ambassador Zhang Yesui. Perhaps they were laughing about how the bill that Dodd is pushing is the perfect cover for the Chinese the next time the State Department asks them to stop censoring the internet.

As much as I appreciate and highlight the importance of the DMCA's safe harbors, there remain many troubling parts of the law. The notice and takedown process is particularly questionable, in that it involves shooting first and asking questions later. When we're dealing with a system that gets so many false notices, taking down first seems kind of crazy. David Canton points us to the news of a copyright lawyer and photographer, who had her entire site shut down by GoDaddy (of course), after it received a single, totally bogus, DMCA claim. Apparently someone claimed copyright on a photograph that the blogger, Carolyn Wright, had taken herself. The DMCA claim was just wrong. And while GoDaddy is required to remove the specific infringing content if it wishes to retain safe harbor protections, it appears to have gone way beyond that in shutting the entire site down. Thankfully the situation was resolved when Wright reached out to the person sending the letter, who apologized and withdrew the claim.

That said, get ready for this kind of story becoming a lot more common if SOPA or PROTECT IP becomes law. Totally bogus takedowns happen all the time under the DMCA but are usually (though not in this case, apparently) limited specifically to the infringing content. Under SOPA you'll see a lot more drastic action, cutting off sites from ad revenue or payment processing -- with no requirement to turn them back on, even if a counternotice is filed. This is exactly why a private "notice" provision in SOPA is so scary.

Boilersrock sends in the news that a settlement has been reached between Kellogg (maker of fine breakfast products) and the Mayan Archaeology Initiative (entirely unrelated to breakfast products). As you may recall (and this link will certainly help), Kellogg took issue with MAI's use of a toucan in its logo, despite the fact that MAI's toucan resembled an actual toucan rather than an overly animated cereal pusher. Kellogg also laid claim to Mayan imagery, apparently based on the fact that its website included a horribly insensitive witch doctor caricature.

Fast-forward a few months and it appears that, against all odds, cooler heads and common sense have prevailed. Kellogg has dropped the claim against MAI and has made some serious strides towards rehabilitating its image:

Battle Creek-based Kellogg Co. is satisfied that its trademarked Toucan Sam character isn't in danger, and the San Ramon, Calif.-based Maya Archaeology Initiative can keep using its own toucan logo. What's more, Kellogg is making a $100,000 contribution to cover a major part of the cost of building the MAI's long-planned Maya cultural center in Petén, a district in Guatemala, said MAI spokesperson Sam Haswell.

Not bad for a couple of months of talks that began with the MAI staring down the barrel of a multinational corporation's nastygram. Not only will MAI receive $100,000 but Kellogg has made some strides to clean up its online image as well, beginning with the removal of the offending witch doctor and its accompanying imagery from its website:

In early September, Fox News Latino reported that the early exchanges between MAI and Kellogg had prompted the company to rethink how Mayan culture was portrayed in a Froot Loops-related online adventure game, which subsequently was removed from Kellogg's website, according to latino.foxnews.com.

"MAI raised some points about the cultural sensitivity of one of our marketing executions that we hadn't considered," Fox News Latino quoted Charles as saying. "As a company long committed to diversity and inclusion and responsible marketing, Kellogg takes this concern very seriously."

It appears that Kellogg realized what kind of a PR nightmare it had just unleashed by issuing the cease-and-desist as its efforts didn't end with $100K and some website scrubbing:

"After conversations with MAI to better understand how they intend to use this design, we worked with them to identify an approach to revise their trademark application that will enable them to continue using their logo for their not-for-profit fundraising efforts," said Kris Charles, Kellogg's vice president for global communications and philanthropy, in an email to the Battle Creek Enquirer.

Kellogg also will help promote the MAI's work -- and website -- on Froot Loops cereal boxes next year, in presentations that also will feature Mayan accomplishments.

While Kellogg is obviously regreting its decision to pursue a claim against a non-profit organization, it looks like being on the receiving end of a C & D just might be one of the best things that has happened to the Mayan Archaeology Initiative.

In an amazingly short and to the point ruling (embedded below), a judge in a district court in Southern Texas, Lynn Hughes, ruled that letting the government get mobile phone data without a warrant was unconstitutional:

When the government requests records from cellular services, data disclosing the location of the telephone at the time of particular calls may be acquired only by a warrant issued on probable cause. U.S. Const., amend. 4. The records show the date, time, called number, and location of the telephone when the call was made. These data are constitutionally protected from this intrusion. The standard under the Stored Communications Act, 18 U.S.C. § 2703(d), is below that required by the Constitution.

Of course, there are a number of cases out there that have ruled on similar issues... and come to different conclusions. This is one of those issues that will continue to bounce around until the Supreme Court clarifies. Still, there's something nice about seeing a court ruling of this nature, where the judge doesn't waste any time at all, and basically just says, "Hey, 4th Amendment! Next!"

Earlier this year, Microsoft continued its shakedown war against all things Android by suing Barnes & Noble for patent infringement over the Nook. As we discussed, B&N is fighting back in a big way, claiming that Microsoft's shakedown tactics are an antitrust violation. As that effort moves forward, it's beginning to reveal a ton of useful info. While Microsoft continues to try to keep the patents it's using in these shakedowns "secret," B&N has been revealing them. Groklaw has the details:

The patents, we read, "cover only arbitrary, outmoded and non-essential design features" and yet Microsoft is demanding "prohibitively expensive licensing fees", in effect asserting "veto power" over Android's features. One aspect of the license, Barnes & Noble tells us, was a demand to control design elements, requiring designers to adhere to specific hardware and software specifications in order to obtain a license. That, Barnes & Noble says, is "oppressive and anticompetitive". I think it's accurate to say that the company believes it is illegal.

Barnes & Noble asserts that Microsoft is attempting "to use patents to drive open source software out of the market," saying it, in essence, is acting like a patent troll, threatening companies using Android with a destructive and anticompetitive choice: pay Microsoft exorbitant rates for patents, some trivial and others ridiculously invalid or clearly not infringed, or spend a fortune on litigation.

Beyond revealing more of the patents, the company, in its filings, makes it clear what it believes Microsoft is doing:

Instead of focusing on innovation and the development of new products for consumers, Microsoft has decided to invest its efforts into driving open source developers from the mobile operating systems market. Through the use of offensive licensing agreements and the demand for unreasonable licensing fees, Microsoft is hindering creativity in the mobile operating systems market.... Through the use of oppressive licensing terms that amount to a veto power over a wide variety of innovative features in Android devices of all kinds, as well as its prohibitively expensive licensing fees, Microsoft is attempting to push open source software developers out of the market altogether.

Seems like a pretty accurate summary from what we've seen. It's really pretty sad when the focus of your business is hindering others, rather than innovating yourself.