An amusing tongue-in-cheek post from Adam Thierer looks back at the internet titans of the mid-90s (merely a decade and a half ago), and wonders if they should have been regulated for antitrust problems at the time:
click for larger version If you can't see it that well, it's a spread from PC Computing, showing Prodigy, CompuServe, AOL and MSN as the "top online services." How quickly things change. That's why, a few months ago, we thought it was pretty amusing to see people fretting about a new "gang of four" who dominate the internet space: Google, Apple, Amazon and Facebook.

Fifteen years from now, do people really think that any of those four will still be as dominant, let alone all four? The tech world changes fast. Companies come and companies go. It's ridiculously difficult to stay on top for very long. The idea that the government needs to get involved just doesn't make much sense.

I do a fair bit of traveling and, while I try to avoid it, there are times when I really have no choice but to pay up for WiFi (and why is it always the expensive hotels that charge more for it, while the cheap hotels offer free WiFi?). At times, the prices seem really crazy, but Parker sends over a screenshot of the cost of WiFi that he discovered at Toronto's International Centre, which seemed a bit extreme: $6.95 for just 30 minutes. Or $99 for a full day. You could get the two day package for a bargain at $159. I'm not sure I want to know what the difference between "Ultra-Lite Wireless" (the prices you see here) and "Extreme Wireless" might be, but it seems doubly ridiculous to think that $99 per day only gets you "ultra-lite" wireless. Anyway, I don't think I've seen prices like that before, but I'm curious if anyone has any stories that can top that?

There is a lot of demand to improve the institutions of education in various ways. Creating an education system in the US seemingly costs a lot, and the results aren't as tangible (or as favorable) as everyone would like it to be. But in order to improve, perhaps we need a closer look at what actually needs to improve. Here are just a few links on how we learn.

• Using an EEG to study how people's brains react to making mistakes could help how to teach kids better or to identify why some kids are having a harder time. Giving an "A for effort" looks like it's a lot more effective than telling students they're smart. [url]
• The literacy program, Helping Early Literacy with Practice Strategies (HELPS), is freely available from a non-profit organization to help improve reading skills for elementary school students. If it doesn't actually work, at least it's cost effective.... [url]
• Psychologists are studying whether or not some students are visual learners or auditory learners. So far, there's no evidence to suggest that there are significantly different learning styles, but that mixing things up does keep student attention better. [url]
• To discover more interesting education-related content, check out what's currently floating around the StumbleUpon universe. [url]  

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

Kyle Clements, over at our new Step2 discussion platform, has presented a really interesting question for discussion. We often talk about the importance of using infinite goods to make scarce goods more valuable, but we're generally talking about content creators whose main output is those infinite goods. What does it mean when the reverse is true. Clements produces physical artwork -- one of a kind pieces that he sells. As he notes, he has no problem building scarcities, but he'd like to figure out what kinds of infinite goods he might be able to use to make those physical works more valuable. It's a really good question. He notes that he can allow Creative Commons licensed images of his artwork to circulate, but that doesn't seem like very much. I was reminded of the Significant Objects project that allowed some creative folks to sell random trinkets on eBay for much more money than they were worth (on paper) by creating compelling stories around them -- and wondered if something similar might be done with the artwork. But I'm curious what other ideas people have. Once again, since the discussion is best suited for that Step2 discussion, we'll turn off the comments here and direct you over there.

The term "shanzhai" literally means a fortified mountain village, and originally meant those places in China that were outside government control, and hence not subject to its law. Today, by extension, it refers to Chinese outfits producing counterfeit goods that ignore intellectual monopolies like patents.

Here's a great 2009 post from the hacker Andrew "bunnie" Huang about the shanzhai world:

The contemporary shanzhai are rebellious, individualistic, underground, and self-empowered innovators. They are rebellious in the sense that the shanzhai are celebrated for their copycat products; they are the producers of the notorious knock-offs of the iPhone and so forth. They individualistic in the sense that they have a visceral dislike for the large companies; many of the shanzhai themselves used to be employees of large companies (both US and Asian) who departed because they were frustrated at the inefficiency of their former employers. They are underground in the sense that once a shanzhai "goes legit" and starts doing business through traditional retail channels, they are no longer considered to be in the fraternity of the shanzai. They are self-empowered in the sense that they are universally tiny operations, bootstrapped on minimal capital, and they run with the attitude of "if you can do it, then I can as well".

As Techdirt noted a couple of years ago, precisely because they are not bound by traditional legal constraints, shanzhai companies are often highly innovative. Here's a more recent example of a company going well beyond the product it is copying:

The designers behind this Shanzhai Nokia N9 smartphone have completely gotten around the problem of which operating system they should use and have opted to use 7 different UI’s!

Ok then this clone of Nokia’s top of the range smartphone doesn’t actually run Meego, iOS 5.0, HTC Sense, Symbian, Windows Phone 7, BlackBerry and even Smasung’s TouchWiz, but has been given optional skins to make the installed OS look like one of the popular mobile operating systems.

Obviously, that's not something traditional companies could try, but that's the point: the laws that are supposedly promoting innovation actually hamper it in significant ways. In his post, Huang wrote that shanzhai "may have something in common with Hewlett and Packard or Jobs and Wozniak back when they were working out of garages", and went on to suggest that the future of business for much of the world could lie in these modern kinds of fortified mountain villages:

I always had a theory that at some point, the amount of knowledge and the scale of the markets in the area would reach a critical mass where the Chinese would stop being simply workers or copiers, and would take control of their own destiny and become creators and ultimately innovation leaders. I think it has begun — these stories I’m hearing of the shanzhai and the mashup they produce are just the beginning of a hockey stick that has the potential to change the way business is done, perhaps not in the US, but certainly in that massive, untapped market often referred to as the "rest of the world".

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[Those of you following along will remember the cliffhanger ending of Volume 1, in which it was revealed that "something" would come along and destroy the movie industry with its tiny screen and tinny sound. In this followup, we reveal the true killer of the film industry, which is also one of the many pretenders to the throne.]

A Disaster Called Television
Little did Roger Philco and Francois Magnavox know when they assembled the first "magic picture box" that it would change American society as we knew it, mostly for the worse.

There was no indication during its early broadcasts of test patterns, puppet shows and white men in blackface that the daily life of Americans would soon revolve around it. Instead of gathering around the wireless to watch Dad get drunk and curse the Yankees, the whole family would gather around the tiny screen to watch Elvis from the waist up or catch breaking footage from the moon landing set.

The movie industry understood how serious this new threat could be and stepped hastily over the still-cooling corpse of live theater to denounce the new "tele-vision," which would surely destroy their precious industry. They lamented this turn of events, cursing every new box office record and crying into their stacks of $1000 bills.

Representatives of the "dying" industry called on Congress to do "something" about the "talking picturemajig." How can we get people to sit in front of our 42-foot screens, enjoy our Technicolor and Sensurround when they have 3 inches of black and white power at home, all coming to them in deafening mono?

Congress was too busy watching the National League Championship to be bothered by an outdated industry and their rhetorical questions, no matter how many bribes and high-dollar hookers they waved around. Another blow was struck when forward-thinking Dwight Eisenhower announced his bold plan for America: a television in every house, a car in every garage and an epidemic of childhood obesity.

Disaster? Or Powerful, Distracting New Ally?
The movie industry was premature in its panic. Americans soon proved they had the leisure time for both activities, which could easily be squeezed in between backyard barbecues and conceiving the eventual bankrupters of Social Security.

During the early '50s, the average male enjoyed a 25-hour work week, divided between harassing the typing pool, pounding martinis and hitting the golf course. The remaining time they spent watering the lawn, washing the car, pounding martinis and pounding the wife (mostly in a sexual fashion, but often in a physical fashion).

TV grew and grew, becoming the focal point of American family life. Television producers turned the mirror on the public, reflecting life as they knew it in the form of sitcoms, playing up spousal abuse ("I Love Lucy," "The Honeymooners") and sexless marriages (every other sitcom). They also went after more respected institutions with uncanny accuracy. (See also: "The Andy Griffith Show" and its devastating take on inept law enforcement and artistic whistling, or "Bewitched" and its brilliant satire of the advertising world, long before "Mad Men" made it cool to be casually sexist again.)

As its influence grew, television turned its unblinking eye on other "hot button" topics such as the Korean War ("M*A*S*H*"), teen hoodlums ("Happy Days") and greed (every game show). TV devoured everything in its path over the next 50 years, before going all ouroboros and devouring itself, shitting out show after show containing no actors, no script and starring everyday people like Balloon Boy's dad.

As the airwaves were conquered by Joe Gloryhound and his occasionally-swapped wife, the film industry breathed a sigh of relief, knowing that TV's "tapped-outness" would allow them to continue to collect billions of dollars a year cranking out sequel after sequel. Directors such as Michael Bay were allowed to continue trafficking in explosions and recycled punchlines. All was well in the word, until...

Coming up next:
Post-ellipsis!

A few months ago, we mentioned the ridiculousness of the the Children's Online Privacy Protection Act, which has strict rules for any sites that target services to children under the age of 13. It's one of those "for the children!" laws that are so popular with politicians, but which never seem to have any basis in evidence, and never seem to consider the unintended consequences. Under the law, as we noted, any site that wants to target kids has to meet certain very high standards, requiring permission from parents. In theory (and in a total vacuum) perhaps this sounds good. But the real impact is that very few sites look to create useful internet services for kids... and kids learn pretty early in their youth how to lie about their age online.

Jeff Jarvis recently was on a conference call about COPPA where he asked an FTC attorney some questions about COPPA, the actual research behind it, and the unintended consequences -- and seemed to get back the conference call equivalent of a blank stare:

I asked Mamie Kresses, senior attorney for the FTC’s Division of Advertising Practices, whether there had been any study about how truthful children are reporting their ages online. They have no such research, she said. I asked whether the FTC had any data about how often parents use the means of notice and consent COPPA provides. None, she said.

The most disturbing unintended consequence of the regulation, I think, is the chill it likely puts on serving children online. In the early days of the web, I started the Yuckiest Site on the Internet — about goo, bugs, and science — to serve young readers at the local news sites I ran. After COPPA, my employer decided the risk in serving young people and even inadvertently recording a child’s name or targeting an ad was too great.

We don’t know how many sites have not been started to serve children online. Isn’t this the group we should be serving best? I asked Kresses whether the FTC had done research on the extent of a chill. No, she said.

Finally, I asked whether the FTC had revisited the reasons for COPPA. What harm are we trying to prevent by restricting identity online — and is it effective? She responded with circular logic: They are giving parents the opportunity of notice and consent regarding children’s information.

From there, he points out that we shouldn't base our entire policy on the assumption that the worst case scenario will happen to all kids. As he notes, kids are still kidnapped, but we still let them play outside. This doesn't mean we should let them run wild online -- just like we don't let kids run wild outside, either. But the rules, as set today, effectively say that children can only run outside in a few very inconvenient parks. We're overprotecting. And, as Jarvis notes, the ability to play online is important:

Children need to play online, too. They should create and get credit for their creativity. They should be able to establish a relationship with an educational site where they can track their own progress. Technology and the net don’t just present danger; they afford opportunity. But by focusing only on the former, we can risk losing sight of the latter.

About a year ago, various wireless service providers found themselves under investigation by the FCC for sky-high overage fees. Of course, they protested this charge in the form of hilarious statements, expressing "concern" that their customers might be "confused" if they were warned about impending overage charges. Some even went so far as to claim that customers obviously wanted overage charges because (get this) customers racked up overage charges.

To wit:

"For accounts that repeatedly go into overage, it is reasonable to infer that it is a matter of consumer choice. These customers are either indifferent to overages or are making the deliberate decision to incur overages because it is the most cost-efficient solution for their usage patterns."

Or maybe, just maybe, customers wanted to be informed of these possible overage charges but no cell phone company was interested in telling them. While tools are available for consumers to track their own usage, this is not something that's promoted very heavily (or indeed, at all) by most phone companies.

Well, the FCC has finally stared down the wireless carriers, who have decided to voluntarily (through gritted teeth) implement many of the rules suggested by the FCC, rather than deal with being regulated by the government.

Customers will receive free text alerts in real-time when they're about to exceed their limits, CNET reports. The move is supposed to cut down on the "bill shock" people may feel when hit with sky-high rates for extra usage. Wireless carriers will also warn customers who travel overseas about the additional fees they may incur.

Of course, this being a government-related decision (and one performed under presumable duress), don't expect to be notified any time soon.

Under the volunteer measures, wireless carriers have 18 months to put their warning systems in place.

Not only that, but your months-away warnings may not be timely enough, especially for those of you with notorious text-fiends (read: teenage children) on your mobile plans.

Some providers, including AT&T and Verizon Wireless, already warn their customers as their data use approaches the limit. However, these warnings may be delayed. AT&T, for example, takes 24 hours.

24 hours?!? That's like 3 years of texting for normal users! The good news is that sometime within the next two years, your mobile carrier may have to speed up its notification system to something approaching "real time."

Until then, you may want to consider switching to an unlimited plan or putting your kids up for adoption, whichever is cheaper.

For a few months now we've been hearing that the version of the PROTECT IP Act from the House of Representatives was going to be released "in a couple weeks." And yet, every time it got delayed -- often because new and unexpected opposition suddenly showed up. The supporters of PROTECT IP, such as the MPAA and the US Chamber of Commerce, had always figured that this was going to be the an extremely easy bill to pass, but the very vocal opposition caught them a bit by surprise. During this time, we kept hearing from various House members working on the bill, that they would be listening to all of the concerns. During a visit to Silicon Valley last month, Rep. Bob Goodlatte, who is helping to push PROTECT IP through the House, insisted that he'd heard the concerns from some in the tech community and that the bill would be noticeably different than the Senate version.

However, a variety of groups representing the tech industry -- including CCIA, NetCoalition and CEA -- pointed out a few weeks ago that they had not been consulted at all. This was problematic, since it was the entertainment industry driving PROTECT IP almost entirely, with almost no recognition of the serious problems it would cause for innovation and job growth. Just last Friday, members of the House working on PROTECT IP finally agreed to meet with these groups representing the tech industry, to hear their concerns. But rather than listening to those concerns and working together to fix the myriad problems with the bill, the latest report is that these Reps are about to release the bill they had been working on anyway, which retains basically all of the problems of the Senate bill... and that they're then planning an accelerated push to get it approved.

This is pretty disturbing. It suggests that even after they've been shown how this bill is a jobs-destroying, innovation-hindering, internet-breaking bill, they're going to rush it through anyway, without even listening to ideas on how to fix the bill. What a legacy these representatives must want.

As noted below, CCIA, NetCoalition and CEA have all asked members of the House of Representatives to slow down and let them actually be a part of the process. Let the tech industry be heard, and make sure that the problems with PROTECT IP aren't put into law, where those who support it will end up regretting it. Hopefully some folks in the House are willing to listen.

Despite challenges concerning the legality of ICE seizing domain names prior to any sort of adversarial hearing, it appears that ICE has no intention to slow down. The group quietly seized 20 more domain names over the weekend, and it looks like most involved sites selling unauthorized NFL jerseys. ICE has been a bit slower about going after copyright related domain names, focusing more on trademark domain names recently, but it's still questionable as to whether or not the group really has the right to censor domain names without an adversarial hearing. Of course, ICE is relying on the fact that no one behind these sites is likely to speak up, which is why it gets away with its out-and-out censorship. In the meantime, you would think that ICE would have more important things to do than be the personal private police force of various entertainment industry entities.

"Think of the children" has become the rallying cry of politicians around the world trying to push for ever-increasing Internet surveillance powers. Since nobody wants to run the risk of being branded as soft on crimes like paedophilia, resistance to such measures is greatly reduced as a result.

This approach was used in the "Declaration of the European Parliament of 23 June 2010 on setting up a European early warning system (EWS) for paedophiles and sex offenders" which:

2. Asks the Council and the Commission to implement Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and extend it to search engines in order to tackle online child pornography and sex offending rapidly and effectively;

3. Calls on the Member States to coordinate a European early warning system involving their public authorities, based on the existing system for food safety, as a means of tackling paedophilia and sex offending;

The two European politicians behind the Declaration, which seeks to extend the already intrusive Data Retention Directive, were Tiziano Motti and Anna Zaborska. Motti now wants to go even further by monitoring and storing all Internet activity in the European Union. The press release about the launch of this new initiative was entitled "Data Retention Directive: the fight against paedophiles and sexual predators on the net, respecting citizens' right to privacy"; it explained:

The press conference will focus on the most discussed part of the Data Retention Directive, which is under revision, and on the 'Motti Resolution' approved by Parliament in 2010, asking to extend this Directive to content providers (social networks etc) in order to identify more easily those who commit crimes, including paedophilia through sexual harassment on the Net (recognised as a crime by the legislative Resolution to be voted at the next plenary session in Strasbourg). This is a request which does not regard specifically the online content, which falls under the Regulation of wiretapping, but to the traffic data developed by the person uploading material of any kind on the net: comments, pictures, videos.

During this press conference, Mr Motti will present the solutions that can make possible the enforcing of the Resolution approved in June 2010, through a study provided by computer expert Fabio Ghioni, and he will answer to the objections, especially from northern Europe, to the Resolution asking for the broadening of the Directive.

As this indicates, in order to forestall the usual accusations of technical cluelessness, Motti was joined by Fabio Ghioni, described by the press release as "World Expert on security and non-conventional technologies, author of the book 'Hacker Republic'". Ghioni's site carries more details about the ambitious plans, reproducing an article (in Italian) that comes from the web site of Famiglia Cristiana (Christian Family).

Strangely, there Ghioni's project is presented not as a way to catch paedophiles, but as being about keeping personal data safe. The article talks about the fact that users willingly hand over all kinds of information to Facebook but have no control over what the company's employees might do with it. Because of this, Famiglia Cristiana says:

it is worthwhile to evaluate the system developed by Ghioni, which is called LogBox and provides data storage for two years with features that aim to ensure fundamental rights and freedoms of citizens.

It's not exactly clear from the article how a black box that logs all your online activities and stores the data for two years will ensure those fundamental rights and freedoms, but the general drift seems to be that you will have a record of everything that you did, which you could use in court, for example, if you are wrongly accused of some misuse of the computer. What this overlooks, of course, is that it will also be a tempting target for governments who want to keep a tight rein on their citizens, or for companies that want to enforce copyright laws by monitoring alleged file sharing activities.

The LogBox system devised by Ghioni encrypts data, placing the decryption key in the hands of the authorities, a notary [lawyer] and the user of the system. Thus the digital certificate is guaranteed by the three entities, including the user, who is in control.

That sounds as if a digital hash of the connection data is encrypted with one or three separate keys - it's not entirely clear. In theory, having three different keys, all of which were required to decrypt, could be quite secure, but it's no proof against court orders demanding your decryption key. On the other hand, having only one shared key would be an invitation for the police to snoop through your online logs all the time. And yet the article insists:

Let's be clear that this has nothing to do with interceptions: here we are talking about digital data, not contents. Currently the two main issues that result in a "wild west Internet" are digital identity and authentication of both the users and the service providers. Let's take the example of social networks: currently anyone can create a fake personal profile. Let's take the example of online paedophiles: they can be traced only if they use their own account but if, as is easy to do, they connect from a different IP address in some other country, they will never be held responsible for the criminal actions they carry out.

From this it seems that one of the key features of the black box is to make pseudonymous or anonymous activity online impossible. Again, it's hard to see any benefits whatsoever for users – in what way is this "respecting citizens' right to privacy"? - but plenty for governments and the copyright industry.

Even more surprising is exactly how Ghioni wants the black box idea implemented:

The LogBox system would clarify these issues through a precise mechanism that involves the "collaboration" of the operating systems. Therefore the help of Windows, Apple, Linux will be needed. The operating systems will have to store the characteristics of all the activity logs (in practice, tables) generated by the computer that is running the operating system. That's no small thing, because the logs would be signed digitally in such a way as to relate to a specific computer and its user. And this will be independent of any attempt to anonymize illegal activities. Ghioni insists that the costs of this operation will be extremely low.

Cost is hardly the issue. Even if the EU were to insist that Microsoft and Apple implement this black box "feature" in their products, this is simply unworkable for GNU/Linux-based systems. By its very nature, open source lets you hack the code, and so removing any such digital black boxes – even assuming they were put there in the first place by the likes of Red Hat and Canonical – would be relatively easy. Hacked versions would circulate online almost immediately.

The only way to stop that happening would be to forbid people from installing "unauthorised" versions or from making "unauthorised" changes to the system code once installed – which would effectively make open source operating systems illegal in Europe. Given that the Linux kernel was created in Finland, that would be ironic to say the least.

There are other problems that will make this approach unworkable. Already people are accessing the Internet increasingly through mobile devices and e-readers; that presumably means that these too will require black boxes to track users' every online move. In the longer term, we are moving to an Internet of things, which means that many objects in our home will have an IP address and be hooked up to the Net: does that mean there will be a black box for our toasters, perhaps?

And then there is the fact that a 2 Terabyte portable external hard drive costs around $100, making the sharing of vast numbers of files trivial even without the Internet. Do we add black boxes to hard drives? What about USB drives?

What's worrying is that a politician can be naive enough to believe that solving this complex problem is really as easy as adding a few lines of code to an operating system – and that he hopes to convince the European Parliament to mandate such a thing. Far better to stop invoking the "think of the children" mantra as a way to short-circuit rational discussion and instead to encourage a rational, mature debate about how these serious problems can be solved with real-world solutions.

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Remember the company Personal Audio? This is the complete flop of a company that claimed it tried to develop a personal audio player that never went anywhere, and now is nothing but a pure patent troll. It opened an empty office in East Texas, and actually succeeded in winning $8 million from Apple this summer for its patent (6,199,076) on an "Audio program player including a dynamic program selection controller." It had also sued for a second patent (7,509,178) on an "Audio program distribution and playback system," but had failed to convince the judge.

After winning the lawsuit (and both parties are appealing parts of the ruling), Personal Audio sued a second time, arguing that other Apple products also infringed the first ('076) patent. That lawsuit was put on hold until the appeals on the first lawsuit were dealt with. But with the release of iOS5, Personal Audio has wasted no time in suing Apple once again, bringing the '178 patent back into the ball game. As the Patent Examiner blog explains:

The difference in the new case? It’s as simple as a USB cable. The patent in question is for an “audio program distribution and playback system” that downloads playlists. At the time, the Apple products named in the first suit had to be connected to a computer to sync playlists using iTunes, and Judge Ron Clark of the Eastern District of Texas decided Apple did not infringe the patent despite the jury having concluded otherwise.

“The USB cable did not meet [the judge's] definition of ‘download,’” said Personal Audio lawyer Ronald J. Schutz of Robins, Kaplan, Miller & Ciresi. “Apple argued that the USB cord turned the iPod into a dumb hard drive.”

But with the release of Apple’s new iOS 5 software, iPhones, iPods and iPads can sync playlists from iTunes over a WiFi connection instead of using a USB cable.

Because, you know, without Personal Audio around, I'm sure Apple would have never figured out a way to sync playlists over WiFi.

Sinan Unur points us to a story about California Assemblywoman Fiona Ma, who last year totally and completely overreacted to the news that a teenager died at a rave, by introducing legislation that tried to completely ban raves. After finding fierce opposition to the law (leading another politician to talk about the power of the "rave lobby"), Ma changed her legislation and somewhat candidly admits that she only learned after she introduced the bill that the government isn't allowed to ban types of music:

"We found out later on that, Constitutionally, you can not ban a type of music," said Ma. "Plus, I, like my opponents said, I didn't really know what was going on."

It's really quite incredible to see a politician admit such a thing. But seriously, if you're an elected official and you only learn later that (a) you can't ban a type of music and (b) that you were trying to legislate without knowing a damn thing about what you were legislating, perhaps it's time to find a more productive line of work. One that doesn't impact the lives of others.

Ma admits that she finally went to a rave herself, and it wasn't that bad. However, she still felt the need to "do something!!!!" and ended up getting a bizarre law passed in California that bans certain events on state property... but part of that is that it bans things that she saw at a rave, and assumes are associated with raves: gloves with lights on them, walking around with stuffed animals, and most bizarre: no pacifiers. You see her talk about this -- and she seems really proud of the pacifier bit -- at 4:20 in the video above. The statement there is so bizarre, and so out of touch, it's really funny. She gets all worked up about how a rave must be just like an old fashioned concert, in the most condescending tone possible. Here's the quote, but honestly, you have to see her say it to really do it justice:

"You can't wear gloves with lights. You can't walk around with stuffed animals. All the things with rave culture... the promoters have tried to break down, and make it more like a concert, where people go to a concert to enjoy themselves. And not have things that traditionally, in the past, are associated with raves. No pacifiers! Nobody was allowed to have... um... pacifiers in their mouths."

Of course, we can add this to the long line of ridiculous moral panics from clueless politicians. In the future, perhaps people will include Ma's ridiculous quotes, along with the warnings about the evils of the waltz:

The indecent foreign dance called the Waltz was introduced ... at the English Court on Friday last ... It is quite sufficient to cast one's eyes on the voluptuous intertwining of the limbs, and close compressure of the bodies ... to see that it is far indeed removed from the modest reserve which has hitherto been considered distinctive of English females. So long as this obscene display was confined to prostitutes and adulteresses, we did not think it deserving of notice; but now that it is ... forced on the respectable classes of society by the evil example of their superiors, we feel it a duty to warn every parent against exposing his daughter to so fatal a contagion.

And remember, no pacifiers!

We've discussed recently some questions about the federal court's PACER system, and noted that the courts seem to be profiting nicely from PACER, even as it's supposed to be about improving access to public domain court rulings, not about money for the court system. Yet, at the same time they're raising rates, and going beyond the mandate that created PACER by using the profits to fund other projects. Even worse, we noted that some courts seemed to be taking an antagonistic view towards efforts like RECAP, which was put together by Harlan Yu, Tim Lee and others at Princeton to help take public domain documents out of PACER and make them available to the public.

It seems like we're hearing about more and more attempts by the courts to scare people away from RECAP. Lawyer Michael Barclay sent over the following text he saw when he logged into the PACER system for the District of Massachusetts federal court, which goes so far as to tell people who are accessing PACER on a "fee exempt" account that they're forbidden to use RECAP:

NOTICE FOR PACER FEE-EXEMPT USERS
The court would like to remind fee-exempt PACER users of the terms of the exemption and of potential issues associated with a new software application called RECAP. It was designed by a group from Princeton University to enable the sharing of court documents on the Internet. Once a user loads RECAP, documents that he or she subsequently accesses via PACER are automatically sent to a public Internet repository. Other RECAP/PACER users are then able to see whether documents are available from the Internet repository. A fee exemption applies only for limited purposes. Any transfer of data obtained as the result of a fee exemption is prohibited unless expressly authorized by the court. Therefore, fee exempt PACER users must refrain from the use of RECAP. The prohibition on transfer of information received without fee is not intended to bar a quote or reference to information received as a result of a fee exemption in a scholarly or other similar work.

NOTICE FOR CM/ECF FILERS
The court would like to make CM/ECF filers aware of certain security concerns relating to a software application or .plug-in. called RECAP, which was designed by a group from Princeton University to enable the sharing of court documents on the Internet. Once a user loads RECAP, documents that he or she subsequently accesses via PACER are automatically sent to a public Internet repository. Other RECAP/PACER users are then able to see whether documents are available from the Internet repository. RECAP captures District and Bankruptcy Court documents, but has not yet incorporated Appellate Court functionality. At this time, RECAP does not appear to provide users with access to restricted or sealed documents. Please be aware that RECAP is "open-source" software, which can be freely obtained by anyone with Internet access and modified for benign or malicious purposes, such as facilitating unauthorized access to restricted or sealed documents. Accordingly, CM/ECF filers are reminded to be diligent about their computer security practices to ensure that documents are not inadvertently shared or compromised. The court and the Administrative Office of the U.S. Courts will continue to analyze the implications of RECAP or related-software and advise you of any ongoing or further concerns.

That part where they say that fee exempt folks are barred from using RECAP had me scratching my head. Could the courts legally do this? According to the PACER FAQ:

A court may, for good cause, exempt persons or classes of persons from the electronic public access fees, in order to avoid unreasonable burdens and to promote public access to such information.

Um. If it is supposed "to promote public access to such information," shouldn't they be encouraging the use of RECAP for fee exempt folks? In digging around, I also found the identical notice to what's on the D.Ma. site -- and while there's no date on it, on the listing of announcements it's a few below March of 2010 -- so this particular statement may actually be a few years old. Either way, it seems troubling that PACER is trying to restrict the use of RECAP and claiming that certain users are forbidden from using it. I don't see how they have the right to do that. Along those lines, after being pressed on the subject back in 2009, the court system stated that the federal court system is fine with RECAP, so I'm a bit confused (and troubled) by the conflicting messages.

Is the federal court system really trying to tell people they can stop them from redistributing public domain info?