While significant parts of the rest of the world include a "moral rights" component to copyright (which covers things like proper attribution), the US has always avoided it -- even though it's supposedly required by the Berne Convention, of which the US is a participant. The US has mainly gotten around this because it's the US and it ignores international agreements when it wants to -- but also because it put in a tiny bit of moral rights in extremely limited circumstances that are so rare you'll almost never, ever hear about them. However, it does appear that some are trying to sneak in a form of moral rights via contract.

Copycense points us to the news of a writer, Matthew Jones, who is suing the people who optioned his screenplay (which was based on his own novel, Boot Tracks) for changing the screenplay without his permission. He apparently wrote into the contract that such changes could not be made without his permission -- and yet the screenplay was changed to help get funding. There's an obvious contractual breach in there, but Jones is also claiming copyright infringement, suggesting that, by breaking the agreement, they were also creating an unauthorized derivative work. In this case, it's a little more confusing, because there's some question as to when the producer and director actually exercised the option to buy the screenplay/make the film. Either way, it may make for an interesting case and it makes me wonder if we'll start to see more efforts by content creators to enforce such moral-like rights via contract.

With the Google Senate hearings yesterday, we noted that the inquisitors seemed to focus on the fact that Google is big as if that is a problem. Senator Franken specifically made that point: the "bigness" of Google is a concern. And, certainly, it is true that big companies tend to be more able to use their position to make decisions that are harmful to consumers. But that's a correlation, not a causal relationship -- and just because a company is big, doesn't mean it's automatically doing bad things. Mathew Ingram has the most insightful analysis I've seen so far of the hearings, in which he analyzes the points raised, and whether or not there's been any evidence of Google actually harming consumers. What struck me was how Senator Blumenthal specifically asked if Google would make its own product less functional. Why would it want to do that? That seems like the exact opposite of what an antitrust investigation should be about. As Ingram notes:

The hard part comes when Barnett says that Google’s dominance in these areas affects consumers because they will face higher prices and reduced innovation. This is the core of an antitrust case (which the Senate hearing isn’t technically part of, but which is currently underway at the Federal Trade Commission and possibly the Justice Department as well, since both share responsibility for antitrust). It’s not enough that a company like Google has a dominant or even monopolistic market position — as judge Learned Hand has written: “The successful competitor, having been urged to compete, must not be turned on when he wins.”

And it’s not even enough to argue that a company with a monopoly is using that position unfairly. It has to be proven that consumers or the marketplace as a whole are being harmed by that behavior, either through higher prices or reduced choice, or both.

The problem with a company like Google — as opposed to a company like Microsoft, the last major antitrust investigation in the technology sphere — is that users don’t actually pay for the vast majority of its products and services. Microsoft’s behavior arguably affected physical goods like computers and software, which people had to pay for. What does Google’s behavior affect? I’m not paying any more to use Google Maps than I would to use some other service, nor am I paying more to use Yelp because it has somehow been disadvantaged by Google’s attempts to “scrape” its content for local recommendations.

Certainly, "big" companies may become companies that abuse their position and harm consumers, but nowhere has anyone shown any actual evidence of harm. To date, the focus has basically been on the fact that Google is big... and on how some competitors don't like it that they can't keep up. But the evidence of higher prices? Just not there.

The universe is a big place, so it's possible to find pretty much anything you can think of -- if you're patient enough to scan the vastness of space. Here are just a few weird planets that astronomers have found recently.

• Kepler 16b isn't the lecture hall for your astronomy exam. It's the un-trademarked name of Tatooine. This is the first planet that's been observed orbiting a binary star system. [url]
• The Kepler telescope has been a busy bee. It's found two planets sharing the same orbit. These two co-orbiting planets, in the KOI-730 system, are always 120 degrees apart, so they don't collide. [url]
• The planet TrES-2b is so dark. How dark is it? It reflects less than 1 percent of the incident light from its parent star, and so it's darker than coal. (sorry, no joke here.) [url]
• Apparently, there are lots of "free agent" planets floating around the universe without a star to orbit. Expect a disaster movie where one of these lonely planets is headed straight for Earth (nevermind the statistical improbabilities). [url]
• To discover more links on space exploration, check out what's floating around in StumbleUpon universe. [url]  

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

Senators Ron Wyden and Mark Udall have been pressing the feds for a while now concerning their secret interpretation of the Patriot Act, which appears to go way, way, way beyond what most in the public believe on simply reading the bill. While the two Senators had put forth an Amendment to explain these secret interpretations when certain provisions of the Patriot Act were up for renewal, they eventually dropped the Amendment in exchange for some other concessions, and a promise that hearings would be held on the issue. Since then, the Senators have continued to press the feds on this issue at every opportunity, leading to quite a lot of doublespeak from the feds.

The latest development is that the two Senators have sent a letter to Attorney General Eric Holder, saying that Justice Department representatives are clearly misleading the public about the interpretation of the law. Basically, they say that there's a classified ruling about the interpretation of the law, which some in the government (including Wyden, Udall and Holder) are clearly aware of, but which likely interprets the law vastly differently than most in the public would. And the statements from the Justice Department improperly imply that the details surrounding the law are publicly known -- when they are not.

Shorter version: There's a secret court ruling out there that says the government can spy on a ton of people under the Patriot Act, even though the text of the law seems to suggest otherwise. And the Justice Department is implying that the text of the law is an accurate representation of what the law actually is -- when the secret court ruling seems to say otherwise.

While we are sure that you would agree that government officials should not describe government authorities in a way that misleads the public, during your tenure Justice Department officials have -- on a number of occasions -- made what we believe are misleading statements pertaining to the government's interpretation of surveillance law.

The first set of statements that concern us are the repeated claims by Justice Department officials that the government's authority to obtain business records or other 'tangible things' under section 215 of the USA Patriot Act is analogous to the use of a grand jury subpoena. This comparison -- which we consider highly misleading -- has been made by Justice Department officials on multiple occasions, including in testimony before Congress. As you know, Section 215 authorities are not interpreted the same way that grand jury subpoena authorities are, and we are concerned that when Justice Department officials suggest that the two authorities are "analogous" they provide the public with a false understanding of how surveillance law is interpreted in practice.

More recently, we were troubled to learn that a Justice Department spokesman state that "Section 215 [of the Patriot Act] is not a secret law, nor has it been implemented under secret legal opinions by the Justice Department." This statement is also extremely misleading. As the NSA General Counsel testified in July of this year, significant interpretations of section 215 of the Patriot Act are contained in classified opinions of the Foreign Intelligence Surveillance Court and these opinions -- and the legal interpretations they contain -- continue to be kept secret. In our judgment, when the government relies on significant interpretations of public statutes that are kept secret from the American public, the government is effectively relying on secret law.

Separately, they note that when the truth comes out, the government is going to be severely embarrassed:

Americans will eventually and inevitably come to learn about the gap that currently exists between the public's understanding of government surveillance authorities and the official, classified interpretation of these authorities. We believe the best way to avoid a negative public reaction and an erosion in confidence in US intelligence agencies is to initiate an informed public debate about these authorities today.

When I heard that the BBC was suing Silvio Berlusconi's Mediaset, just knowing the two players involved, I expected to side with the BBC. But on this one I'm left scratching my head over the BBC's ridiculous claim. Apparently, the BBC thinks that it owns the idea of a reality TV show about dancing, a la "Dancing With The Stars" here in the US. In the UK, the BBC apparently runs a similar show called Strictly Come Dancing. Mediaset has apparently launched a new show, Baila! Everyone seems to admit that MediaSet didn't even copy Strictly Come Dancing. Instead, Mediaset points out that it actually adapted a South American dance show "Bailando Por Un Sueno (Dancing For A Dream)," which is different... in that it includes "scantily-clad dancers," and has even included "a model [who] danced topless and simulated sex."

Silvio Berlusconi's son, Pier Silvio Berluscoi, apparently responded by saying that it's "Ok to copy ideas" in television, and he's right. Copyright applies to expression, not ideas. And, even in this case, the ideas appear to be different -- in some ways very different. So, I don't get it. Does the BBC really think that it can own the idea of people dancing on a television show? It seems clear that some of this is to protect the BBC's relationship with a competing Italian TV network, which did license the BBC's show -- but still this seems like a gross overreach by the BBC.

Following the astounding and likely illegal decision by BART to shut down mobile phone service in stations in an attempt to block protesters from being able to communicate, Christopher Soghoian and Jacob Appelbaum filed Freedom of Information Act requests for the internal communications concerning this decision. Those communications have now been released and can be seen here (pdf) or embedded below.

The interesting stuff is closer to the end. Basically, someone from BART, Dirk Peters, sent a single email to ForzaTelecom, who must be BART's partner in managing the cell service, saying that they needed it shut off:

Gentlemen,
The BART Police require the M-Line wireless from the Trans Bay Tube Portal to the Balboa Park Station, to be shut down today between 4pm & 8.
Steve , please help to notify all carriers.

The "Steve" in question appears to be Steve Dutto from Forza, who replied and sent an email to various telcos (including Verizon Wireless, Sprint, T-Mobile, AT&T and MetroPCS), saying

I have spoken to or left a voicemail for most of you. We have been told that we must shut down the DAS system from the Oakland portal to the Balboa St. Station from 4-8 pm. We do not believe that any of the carriers need to do anything, the nodes will be turned down from the Civic Center Headend and then turned back up when given the ok from the BART police.

The emails also note that beyond cell service, BART also shut down its WiFi service -- also via a single email from a BART representative to the WiFi partner, WiFi Rail, who noted that they were "happy to help in any way." Nice of them.

Two years ago, we wrote about a lawsuit by Craigslist that we classified as dumb. It was against a company called Red Trumpet who provided a service to make posting to Craigslist a bit easier. Craigslist's obvious reason for filing the lawsuit was that it was upset about the increasing amount of spam on the site, some of which uses such tools. We understand and appreciate Craigslists' efforts to keep spam off the site, but attacking third party software and service providers on questionable theories is fraught with dangers... especially for Craigslist.

After all, this is the exact same Craigslist who keeps getting accused of being liable for prostitution ads on its site. And for years, Craigslist has correctly responded that it is not legally responsible for the actions of their users -- a position we support and agree with. Thus, it seems strange and dangerous for Craigslist to then make the exact opposite argument back at other service providers. It's the kind of thing that's going to come up in a court case sooner or later.

That was the biggest problem with the lawsuit, but there were three other problems with it, including what seemed like extremely questionable uses of copyright law, trademark law and the ever-popular anti-hacking law, the Computer Fraud and Abuse Act. Here's what we wrote about all three at the time of the Red Trumpet lawsuit:

Craigslist is making a really weak DMCA claim here. It's claiming that its various anti-spam technologies (captchas, phone verification, etc.) act as "technological protection measures" that Red Trumpet is circumventing... and thus running afoul of the DMCA's anti-circumvention rules. But the circumvention has nothing to do with violating Craigslist's "copyright," though the lawsuit makes a half-hearted attempt to claim that it does.

Then, there's the trademark claims. There are a few different ones, but it argues that Red Trumpet is violating Craigslist's trademark by mentioning Craigslist on its website and in its ads. While again, you can see why this is annoying to Craigslist, if the company is accurately describing services it provides (the ability to post on Craigslist) it's difficult to see the "confusion" being caused. The ad in question doesn't appear to imply any endorsement at all by Craigslist. And, does Craigslist really want to open up a can of worms concerning trademarks being used in ads? After all, there must be a ton of posts on Craigslist that mention trademarks.

Finally, there's Craigslist claiming that Red Trumpet violates the Computer Fraud and Abuse Act by accessing its site despite violating its terms of use. Does this sound familiar? It's the same argument that was used to try to punish Lori Drew, and was recently tossed out by a judge. Basically, it's claiming that if you happen to violate the terms of use of a site, and then still access the site, you've effectively "hacked" into the site. This is a really bad reading of the law, which is why it was good that the Drew ruling got tossed out. So why is Craigslist trying to re-establish that as a rule?

I hadn't followed the case very closely after that, but it looks like the company eventually settled with Craigslist.

What I hadn't realized was that Craigslist had actually filed a bunch of similar, equally questionable, lawsuits against others. One of those others is a guy named Paul Hubert, who wrote some software that made it easier to manage your Craigslist postings. We've been in touch with Mr. Hubert... who did not find out that he was being sued at all, until months after the court already ruled in a default judgment against him. Default judgments happen when someone doesn't respond, but if you're never informed of the lawsuit, it's pretty difficult to respond at all. Hubert insists that he was never served, and the first he heard of the lawsuit was a couple months after the default judgment (for over $1.2 million) when someone tried to collect it from him.

Hubert makes it clear that his software was designed for legitimate uses of Craigslist, for those who needed better management tools. In fact, he makes it clear that he left out and/or disabled certain features if he realized they might be attractive to spammers. For example, after noticing that the Craigslist Personals section was hit with a lot of spam, and realizing that such a category probably wouldn't need such a management system, he blocked the software from posting to that category. Hubert claims that in 2007 Craig Newmark himself reached out to Hubert to ask for some details about the software. Hubert says that the emails were "encouraging" and never once did Newmark suggest any concerns or problems with the software, let alone ask Hubert to stop offering it. Hubert also notes that after running into more issues with spammers trying to use his software, he shut down the whole thing at the end of 2008.

Hubert, who is unemployed, is reasonably perplexed and upset about the whole thing. He never knew about the lawsuit, was never asked to stop offering his software (which he did anyway), and is now being told he has to pay $1.2 million which he doesn't have. He claims that the lawyer trying to collect the money has told him that Craigslist wants to "make an example" of him.

I'm greatly troubled by Craigslist's actions here. Having dealt with Craig and Jim Buckmaster a few times in the past, I reached out to them about this, and asked for any comment. It's been a couple days and no response has been forthcoming from either. From the profile page of lawyer Brian Hennessy, who appears to have represented Craigslist in both of the cases discussed here, it appears that Craigslist actually has filed a lot of other, similar cases.

I have to say that I'm pretty disappointed that Craigslist would do this. The company has usually represented a lot of the good of Silicon Valley, and to use questionable legal theories to attack various companies -- especially theories that are likely to come back to haunt Craigslist itself -- is just a bad idea. To then take it further and go after this guy who was never served and never even asked to stop -- and then pressing him for $1.2 million he doesn't have -- just feels downright shameful.

BMI is back doing what BMI does best: hauling in the "rent." This time BMI is going after a nightclub in Michigan for not taking advantage of its "services."

Broadcast Music, Inc., the music licensing group, is suing the Lady Godiva's nightclub and its owner, Mark London, claiming the club has violated copyrights. BMI filed a lawsuit Tuesday in U.S. District Court in Grand Rapids, alleging the club played songs by artists Rivers Cuomo ("Say It Ain't So"), R. Kelly ("Ignition") and Amy Winehouse ("You Know I'm No Good") without paying the proper music license fees. The suit claims the songs were played at the club -- without BMI permission -- on September 27, 2010.

As has been shown before, BMI needs nothing more than a few songs to build a claim against a business and it got the songs it needed. The filing (embedded below) is light on details but runs long on hyperbolic doomsaying. It would appear from BMI's own wording that unless Lady Godiva's rogue actions are stopped, the very future of performance rights groups is in peril. Check these out (page 4):

The specific acts of copyright infringement alleged, as well as the Defendant's entire course of conduct, have caused and are causing Plaintiffs great and incalculable damage.

Holy hell! A single nightclub in Grand Rapids, MI (Pop. 188,040) has broken BMI's calculator with its alleged course of conduct! Somebody needs to stop Godiva before its kills/breaks math again! But who?

Unless this Court restrains Defendants from committing further acts of copyright infringement, Plaintiffs will suffer irreparable injury for which they have no adequate remedy at law.

It's worse than I thought! BMI will have to go on the Injured Reserve List! For life! How many among us have carelessly "infringed copyrights" without thinking of the little people, like BMI, ASCAP and so many other battered acronyms? Who will nurse their "irreparable" wounds? Will BMI have to resort to vigilante justice to collect its fees? Is that the way we really want it? Limping performance rights organizations operating outside the law? I submit to you that we do not.

But that's only half the story (and what a half it is...) According to Lady Godiva's owner, Mark London, attempts were made to pay the licensing fees, but BMI tried to change the agreement.

London tells WZZM 13 News that BMI is seeking to have him sign a licensing agreement registering his club as an adult entertainment business, which he says it is not. He says that while his club does feature women dancing it is not a topless venue, as a 2006 Grand Rapids city ordinance no longer allows nudity.

London says he is in good standing with ASCAP and other licensing agencies. But when he sent checks to BMI to pay for music rights, London says the group voided the payments.

So, suddenly, "enough" just isn't enough for BMI. It wants more and it isn't shy about dragging a business into court until it's happy with the dollar amount. Understandably, BMI's filing says nothing about this dispute over categorization and relies solely on the testimony of three well-known tunes. This is a pretty thin filing for BMI, which probably explains the overwrought language.

BMI may have an incredible success rate with its lawsuits but trying to convince a judge that a business that could not possibly be an adult entertainment business is, in fact, an adult entertainment business is going to be a pretty tough sell, no matter how much supposed ongoing "irreparable damage" is involved.

GM subsidiary OnStar is apparently alerting its customers that even if they decide to cancel their service in the future, OnStar will still track information about them -- and, of course, potentially sell that data.

“What’s changed [is that if] you want to cancel your OnStar service, we are going to maintain a two-way connection to your vehicle unless the customer says otherwise.”

OnStar is spinning this as a plan to make it "easier to re-enroll" as a customer, but it also seems to admit that there's demand out there for the data that OnStar collects, so it has plenty of incentive to get more such data, even from non-customers. Of course, they don't even seem to acknowledge the creepiness factor of canceling a service, and then still having that service track your every move.

Nikki Finke, the infamous editor of Deadline.com is apparently suing the Hollywood Reporter for copyright infringement... because it wrote stories on the same news events as Deadline.com. Seriously. Here's Finke's quote:

"PMC (the company that owns Deadline.com) is taking a stand against desperate and copycat news organizations and media outlets such as THR that constantly monitor PMC’s websites for the sole purpose of copying and imitating PMC websites’ news stories and original content within minutes after online publication. These copycat media outlets such as THR, rather than conducting their own independent reporting and investigation, developing their own sources and insiders, and generating their own leads and stories, simply steal PMC’s content and pawn it off as their own. In truth, THR, faced with the harsh reality that it had become a second-rate entertainment industry news source unable to attract insiders’ attention anymore."

THR, for its part, claims the whole thing is ridiculous, and many of the stories mentioned were on both sites because Hollywood publicists sent the same info to both sites:

"An initial review of the complaint shows that it is replete with examples of stories that originated from widely-released press releases from publicists, or widespread confirmations from publicists to numerous outlets, including both The Hollywood Reporter and Deadline.com. It is not copyright infringement to report these stories, even if on occasion Deadline.com posts them first."

While I don't always agree with THR's coverage, on this one, I'm on their side. Reporting on the same story -- even if you find out about it from the other site -- is not copyright infringement. It's often how news works. Someone should explain to Finke the idea/expression dichotomy in copyright law, as well as the important tidbit of information that you can't own facts, and others are free to write about the same facts.

Of all the entities looking to take advantage of the brand (dare I say, "spanking?") new .xxx TLD, I would imagine that most of us would have put PETA somewhere toward the bottom of the list. True, it has been known to throw around a lot of (human) skin in order to draw attention to boobs ass well-turned ankles the plight of suffering animals, but is PETA finally dropping the pretense (along with most of its proverbial clothing) and going all porno on us?

The answer is "yes," with a "but":

Reuters reported the story, saying the anti-animal cruelty organization is staking its claim to peta.xxx, which will serve as an animal cruelty awareness and pornography site. Peta has pushed the limits of its animal cruelty ads often in the past with near-nudity, racy slogans and a lot of shock value.

Never before in the history of everything ever has the phrase "animal cruelty awareness and pornography site" ever been uttered (or typed). It's truly a groundbreaking achievement, one that will likely be refreshingly free of bandwagon jumpers. Porn has long been known for "raising" things, but "animal cruelty awareness" has never been one of them. How exactly does PETA plan to do this? I'm glad/sickened you asked:

"As soon as people land on the site they will see some explicit content, those tantalizing images that they'll be hoping for," Rajt said of the site's content. As they go deeper into the site, however, visitors will find graphic images of animal abuse.

Now, I'm no sociologist but I don't imagine that your average internetizen is going to be too interested in shocking images of animal abuse while abusing themselves. I could be wrong, but considering there are thousands of other cruelty-free porn sites available, I can't see this juxtaposition raising much more than frantic mouse fingers in a one-handed effort to steer back to a "happier place."

However, I can see this attracting a certain subset of society, one that usually ends up behind bars doing multiple life sentences after a long manhunt and several trips to secluded areas to identify dental records. The thought of someone steering towards PETA's proprietary blend of eroticism and animal torture by choice is more than a little disturbing. One can almost picture the "enthusiast" down in his basement, shouting "IT PUTS THE 'NOT APPROVED FOR COMMERCIAL SALE' LOTION ON THE SKIN" in the general direction of the petting zoo imprisoned at the bottom of a 6-foot-hole while dancing around to Moby's latest, making "Herbal Essence" noises and trying on a new prom dress made from the skin of last year's prom queen.

Most people view torturing animals as the first sign of a "troubled youth who always kept to himself until one day his house was swarmed by the SWAT team, at which point we all realized that the smell wasn't a backed-up sump pump, but dozens of decaying corpses." Somehow, combining porn and tortured animals seems like the sort of thing that someone should be monitoring (from an unmarked van) rather than using to "raise awareness."

Maybe it will all be just fine. PETA's spokesperson seems upbeat:

"It can be a pretty depressing subject," Rajt said about animal cruelty, "We hope it'll grab people's attention, get them talking, and ultimately get them to ask questions."

True that. People enjoying porn love to be interrupted by disturbing images and random conversation. This could bring about a whole new dialogue about animal testing, one that most likely will start with "Doesn't anyone knock anymore?" and ends with "It's not what it looks like. I was actually masturbating to normal porn."

Neppe alerts us to the news that Microsoft has claimed yet another victory in its war on the Linux Operating System. According to multiple reports, including Thinq_, the Register and others, Casio has coughed up an undisclosed amount of money to "license" the Linux operating system from Microsoft.

Microsoft has been claiming since 2007 that Linux infringes on 235 patents. If you go back to 2004, it was just 228. Despite the lack of any public list of these patents, Microsoft has been able to use them quite skillfully in convincing a number of software and hardware vendors to pay licensing fees. Microsoft claims that such licensing deals are for the benefit of the companies who pay up.

So just what are the benefits of paying Microsoft a licensing fee for free software, especially when said software was not developed by Microsoft? If these quiet settlements are any indication, the sole benefit would be to avoid being dragged through the courts by one of the largest software developers in the world. Seriously, what other benefit is there? Is there a collection of patent trolls jumping at the chance to sue companies using Linux that have yet to surface thanks to Microsoft's cradling licensing deals? Not that I have read about. The only patent holder jumping at the chance to sue over Linux is Microsoft itself.

What this really looks like to me is an old school protection racket in which the resident mob enters the new business or residence and demands protection money in order to protect said establishment from some malevolent threat.

Christian Tremblay points us to news of a new OECD report that agrees that falling patent quality is holding back innovation:

The quality of patent filings has fallen dramatically over the past two decades, claims a report by the Organisation for Economic Co-operation and Development (OECD).­ The rush to protect even minor improvements in products or services is overburdening patent offices, which in turn slows the time to market for true innovations and reduces the potential for breakthrough inventions they claim.

Of course, the real way to fix this problem is to make the bar to get a patent much, much higher. If you do that, you get less bogus patent apps being submitted, and it makes it easier to reject such bogus patents. One easy way to do this would be to use independent invention as a sign of obviousness, and reject patents where multiple parties all came up with the same thing independently. Unfortunately, no one seems to seriously be considering such an option. And so we're stuck with crappy patents and a giant backlog. To date, the only way that the US has seen to get through that backlog is to approve patents faster with less scrutiny than before. Tragically, this has had the exact opposite effect of the intended response. When you approve more bad patents quickly, you only encourage even more bad patent applications.