Modplan's Favorite Techdirt Posts Of The Week

from the lots-to-talk-about dept

This week’s “favorites of the week” post comes from Modplan. He’s not the most prolific commenter, but I always enjoy his thoughtful responses.

First, a thanks to Mike for asking me to write this week’s post. When approached to do the favorite posts of the week, I was initially worried I wouldn’t be able to find much of interest in a week I thought it wasn’t as eventful of a week as it turned out to be when looking back for the selections, so I took a few swigs of my kool-aid and prepared for the inevitable drop in value that follows from doing anything for free and got writing. I only hope the following selections and my musings are at least of mild interest to even just a few of you.

I’ve been following the “Freedom Box” project for quite a while after first seeing some of Eben Moglen’s speeches regarding freedom, the web and free software, which had also inspired other projects like Diaspora, so it’s no surprise that the article “Sometimes ‘Piracy’ & Freedom Look Remarkably Similar” was something of particular interest. I think the article leads into a point I’d personally been thinking about for while, in that much of what makes the web so great at freedom of speech is also fundamentally the same as what makes it great for widespread piracy. To attack piracy is to often end up — inadvertently or not — attacking the same things that give us a greater freedom of speech and efficiency. With modern attempts at attacking the former in some ways inhibiting the latter, they result in rather ham-fisted ways of working around that technologically, legally and PR wise. I’d be interested to see, if these kinds of devices take off, what precisely will be demanded to be done to combat the higher chances of piracy that seem will inevitably come with the greater protection of privacy and free speech.

Next up is the story of how the Tolkien estate is trying to put a stop to a historical fiction book involving the deceased author. I think we can all understand at some point the feeling of needing to fight back against something said that’s untrue about us or the need to not be associated with something we don’t support or like, but it seems like publicity laws, as they are, will just continue to be abused. I’m not sure what merit cases involving deceased authors and Hulk Hogan impersonations have outside of getting in the way of what seems like perfectly valid forms of criticism and bad comedy, regardless of any fears of association.

Speaking of overly broad rights and protections, I’m reminded of the story on the EU and Korea trade agreement, which to me didn’t appear to get a lot of attention the first time round. Though I think I only need to point out this particular part to show just how bad this agreement is:

The data exclusivity provision prevents generic drug manufacturers from relying on data used by the patentee for market authorisation. Clinical test data generated by the patent holder, for example, therefore cannot be used for market authorisation of a generic drug using the same substance, obliging the generic drug users to reiterate the tests.

If only every society were required to reinvent the wheel, we’d all have teleporters by now.

Moving swiftly on, here’s a case we can all learn from with Sweden fining a file sharer €200 ($311, working out at $7 a song). I’m sure this is something the USTR will balk at, but sometimes the US (and us at Techdirt) can get so involved in debating, arguing and extending its own laws, they forget there’s a whole world out there we can communicate with and learn from, not merely try to coerce into our ways, with more reasonable file sharing damages certainly being one of those areas.

I’d also like to briefly highlight the stories of the US paying for software that didn’t work, the revolving door between Government and industry , and where would we be without ICE admitting to taking down 84,000 domains for the sake of 10 — not only did the Government give plenty more ammo this week to show themselves to be incompetent and untrustworthy, but they also gave us yet more reasons to dislike the patent system. They really worked had this week didn’t they? Just think that if they hadn’t done all this work, our national security would be in danger.

To put this post to bed, I’d like to end with more positive stories — TED’s success in opening up its content to the world, a porn company deciding to work with rather than against pirates and its customers, and that cheap video games are not necessarily bad for the industry. I think the story of TED in particular helps show that not only is cheap and free not necessarily as devaluing or industry-destroying as is regularly claimed, but can, in fact, lead to more success and a better situation for all. It’s been a regular point at Techdirt that it’s not always a zero-sum game when it comes to freeing content and making money, it’s just a matter of thinking beyond being simply a gatekeeper.

That’s it from me, back to lurking in the comments section from now on.

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Comments on “Modplan's Favorite Techdirt Posts Of The Week”

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71 Comments
Anonymous Coward says:

Mike is the Walrus

“O Oysters, come and walk with us!”
The Walrus did beseech.
“A pleasant walk, a pleasant talk,
Along the briny beach:
We cannot do with more than four,
To give a hand to each.”

The eldest Oyster looked at him,
But never a word he said:
The eldest Oyster winked his eye,
And shook his heavy head–
Meaning to say he did not choose
To leave the oyster-bed.

But four young Oysters hurried up,
All eager for the treat:
Their coats were brushed, their faces washed,
Their shoes were clean and neat–
And this was odd, because, you know,
They hadn’t any feet.

Four other Oysters followed them,
And yet another four;
And thick and fast they came at last,
And more, and more, and more–
All hopping through the frothy waves,
And scrambling to the shore.

The Walrus and the Carpenter
Walked on a mile or so,
And then they rested on a rock
Conveniently low:
And all the little Oysters stood
And waited in a row.

“The time has come,” the Walrus said,
“To talk of many things:
Of shoes–and ships–and sealing-wax–
Of cabbages–and kings–
And why the sea is boiling hot–
And whether pigs have wings.”

Karl (profile) says:

Re: Re:

It amazes me that anyone can defend the mooo.com seizure.

This situation is virtually* identical to CDT v. Pappert. In that case, the district court found that the Pennsylvania law was both prior restraint, and a violation of the Commerce Clause.

In other words, it’s already been decided in court that actions like this are unconstitutional.

*”Virtually!” Right? ‘Cause the internet is “virtual?” Get it?
(crickets)
…Tough crowd.

Adrian Lopez says:

Re:

It wasn’t 84,000 domains, but the one domain that was taken down had maybe 10 infringing subdomains out of approximately 84,000, which is slightly over 0.01 percent of the total number of subdomains registered under the one domain.

There’s nothing like shutting down a domain for 0.01% of its content to illustrate why shutting down websites with nothing more than a judge’s rubberstamp is a really bad idea. Shutting down domains containing protected or potentially protected speech should require a trial and establishment of guilt. The first amendment is important enough that nothing less than that should ever suffice.

Anonymous Coward says:

Re:

By that logic, if you take down (for instance) co.uk, you are just taking down one domain, not thousands.

And the domains were registered – with the organization responsible for mooo.com, just like subdomains of co.uk are registered with the organization responsible for co.uk. There is no special distinction between a “subdomain” and a “domain”; a subdomain is nothing more than a domain within another domain.

But all of this is just a red herring. The real problem here is that all these sites were not taken down. Instead, they were hijacked – replaced with a boilerplate page – and that boilerplate page accused the site owner of child pornography. In current western society, few (if any) accusations can be more damaging than that. Since the accusation is so strong, even a single site being falsely accused of that would be one too many. It would have been much better to just take the domain down quietly.

Anonymous Coward says:

Re:

For people who don’t easily understand, using the term subdomains would imply that it something that is controlled at the registrar level, which is not the case. It is something that is controlled by the domain lessor, moooo.com. They don’t have to ask the tld to add in childpics.moooo.com, they just do it themselves in their DNS, with no registration required, no information, no nothing. They don’t need to know who they are dealing with.

The difference is huge.

Adrian Lopez says:

Re:

“The difference is huge.”

Just as mooo.com has to register mooo.com with one of the various .com registrar, so does illegal.mooo.com have to register illegal.mooo.com with the operators of mooo.com. Whether mooo.com asks for any personally identifiable information or not is beside the point, for any way you slice it illegal.mooo.com is not the same entity as mooo.com.

Anonymous Coward says:

Re:

Forever really because what happen was a tremendous screwup.

They seized one brach that had a lot of other branches in it, which means they are not investigating anything the way it should be, which means the people involved don’t understand exactly how the technology works, which means you also is ignorant about technology and its inner workings.

Anonymous Coward says:

Re:

Is there any evidence that the holder of the domain was in any way involved in those crimes or he did actually took part or knew about it?

If the bodega is being used without the consent of the owner or his knowledge I would complain loudly so would you if people seized your company because one employee was selling weed to other there.

Anonymous Coward says:

Re:

From a technical point of view there is no difference.
Besides if they contacted the registrar why couldn’t they have contacted the owner of that domain to see if they could work something out?

So now Facebook can be seized right, because I know there were instances of CP there and in other platforms like Blogspot, Orkut, MySpace and so forth.

Anonymous Coward says:

Re:

Except for one slight issue:

“Unusually, the ‘.co.uk’ second-level domain within ‘.uk’ is more widely used than for most other countries where the ccTLD has primacy. This is a result of specific rules set by Nominet, the UK’s naming body, prohibiting direct use of the ccTLD”

IN other words, you cannot register a .uk directly, you have to register it under one of the listed choices. Those registrations are kept as a top level domain registration (making a .co.uk on par with a .com or .net address, example).

Put another way, you can do a whois on .co.uk domains, but you cannot do a whois on .moooo.com domains.

Anonymous Coward says:

Re:

From a legal sense, they are all moooo.com, there is really no sub-slicing.

Think of it as like an office phone. You are at extension 101. It is a sub-phone of the main phone line, 555-1212. From a legal standpoint, there is only one phone line. What is done with the phone line after (including subletting it to another user) isn’t an issue that would stop legal action in regards to the phone line.

Modplan (profile) says:

Re: Re:

What’s funny about this is you’re trying to defend an action ICE has already admitted was a mistake. There is no technical or legal reason that would have stopped ICE in contacting the owners of mooo.com to seize the 10 subdomains they needed. There is no allegation that the owners of mooo.com were in any way involved with the activities being targeted, nor that it was legal and necessary for all of mooo.com to be seized.

Following your logic, from a legal sense, there would be no “slicing” between mooo.com and all .com domains. Each step is merely a further nesting of the same basic principle, the only difference between them being who owns and who we trust to manage said domain. In the case of .com, it’s ICANN, in the case of domains on mooo.com, it’s afraid.org.

http://www.mooo.com will result in a request to ICANN’s DNS service for where mooo is – after that mooo’s DNS is asked where www is (www usually refers to HTTP on port 80). No different than if you were to ask for a blog at Blogspot or WordPress – does that justify shutting down all of WordPress’s and Blogspot’s subdomains for 10 child porn blogs? Does that make it impossible technically and legally to “slice” between all of Blogspot and WordPress and the 10 child porn blogs hosted on them?

Richard (profile) says:

Re:

IN other words, you cannot register a .uk directly, you have to register it under one of the listed choices. Those registrations are kept as a top level domain registration (making a .co.uk on par with a .com or .net address, example).

Put another way, you can do a whois on .co.uk domains, but you cannot do a whois on .moooo.com domains.

You deliberately miss the point every time.

The fact is that both technically and legal-technically you can probably argue the case either way( and I guess you would if you thought it helped your cause ) but in the real world the websites of 84,000 websites belonging to 84,000 completely separate organisations only linked together by the fact that they bought their web- hosting from the same supplier, were taken down in one go.

It’s like the police getting a description of a getaway car as a BMW and IMPOUND every BMW in the world in response.

Anonymous Coward says:

Re:

Can you guys PLEASE avoid that kind of analogy? I thought Godwin created his law so people would stop doing that. It only serves to polarize the debate further.

Even more if the other side is trolling, which appears to me to be the case here. Focusing on a minor nitpicky point to the exclusion of more important issues (like the fact that the sites were wrongly and publicly accused of doing something very bad) is a classic trolling strategy. Giving them extreme reactions (like that kind of analogy) is exactly what they want.

Rose M. Welch (profile) says:

Re: Re:

Can you guys PLEASE avoid that kind of analogy? I thought Godwin created his law so people would stop doing that. It only serves to polarize the debate further.

Wow, lots of things wrong here.

1. Sure, we can. We probably won’t, though. Did you mean to ask if we would?

2. So far as I know, there is no eponymous group of people who use Nazi analogies, so it’s no use asking if ‘us guys’ can stop.

3. If there is a group, I’m obviously not in it, because I’m not a guy.

4. Godwin didn’t create a rule. He made an observation. There’s a difference.

5. Godwin did ask that people only use Nazi references appropriately and in context so that those references don’t lose impact through overuse. However, I made a good point, using the Holocaust reference in an appropriate and contextual manner, so I don’t see the problem there.

6. However, Godwin’s Law does not apply to discussion of totalitarian regimes or actions, like the one we’re discussing, so even if my analogy was not appropriate or contextual, it wouldn’t matter. In short, Godwin’s Law doesn’t apply to this thread.

7. I didn’t focus on a minor point. The entire point is that ICE took down 80,000 sites because it had a problem with a handful of them, and did so illegally. This was a totalitarian move. Pointing that out, even with satire, isn’t trolling. End of story.

8. If we change what we say or do because of trolls, then the trolls have won, and I simply can’t be a part of that.

Anonymous Coward says:

Curious concerning why is there such animus associated with the generic drug portion of the EU agreement with Korea. The same can be said of the auto emissions portion.

Re the former, the data is a scarcity as between the original drug developer and generic “wannabes”. Is access to this data, which is maintained in confidence for obvious reasons, deemed a public right? It is, after all, a trade secret by any standard definition. If its trade secret status can be truncated with the stroke of a pen, would this not suggest that for all practical purposes trade secrets are no longer available under law?

The auto emissions comments are all wrapped up nicely in an argument “it’s all about clean air”. Is it possible, mind you…possible, that the emissions standards in Korea were enacted (for example), not as a health measure, but as a means to protect domestic industry from foreign competition?

Karl (profile) says:

Re: Re:

Is access to this data, which is maintained in confidence for obvious reasons, deemed a public right?

You misunderstand the objection. They’re not asking for access to the data. The generic drug companies don’t want to repeat the testing process – lab tests, animal testing, clinical trials, etc. – for a drug that has already gone through that entire process, and already been approved by the government.

Anonymous Coward says:

Re: Re: Re:

There seems to be an assumption made that a branded drug and its generic counterpart are identical. Sometimes this may be true, but then again many times this is not.

There is a difference between an “identical” generic and a “bioequivalent” generic, which may in some cases lead to significant adverse reactions by patients taking a bioequivalent.

Karl (profile) says:

Re: Re: Re: Re:

There is a difference between an “identical” generic and a “bioequivalent” generic

Apparently, the trade agreement makes no distinction between the two.

Anyway, generic drug makers have to do tests to prove that the “bioequivalent” drugs work the same way as the name brands. They’ve always had to do this, at least here in the U.S.

Maybe in Korea is different… but then why focus on all generic drugs, even identical ones? Why have the generic drug manufacturers redo all the tests from square one, and not just prove that the drugs are equivalent?

It sounds like they’re trying to protect not the well-being of the Korean populace, but the well-being of Pfizer’s wallet.

Richard (profile) says:

Re: Re:

(why) is access to this data, which is maintained in confidence for obvious reasons, deemed a public right?

1. Because often it was obtained (at least partly) by publicly funded research.

2. Because the drugs have benefited from patent protection – and part of the “deal” is that the information is published.

3. Because keeping it secret risks people’s lives.

Modplan (profile) says:

Re: Re:

Re the former, the data is a scarcity as between the original drug developer and generic “wannabes”. Is access to this data, which is maintained in confidence for obvious reasons, deemed a public right? It is, after all, a trade secret by any standard definition. If its trade secret status can be truncated with the stroke of a pen, would this not suggest that for all practical purposes trade secrets are no longer available under law?

I’m not sure this makes sense at all when you’re already enforcing patents to deliberately exclude people from making a drug. What exactly is the point of going further and making generic producers repeat tests of “safety and efficacy” we already know the outcome of? It’s unnecessary.

Also, it doesn’t appear to make any distinction between data kept private and data that’s public – only that you cannot use such data without authorisation for at least 5 years (10 years for plant protection products).

http://trade.ec.europa.eu/doclib/docs/2009/october/tradoc_145180.pdf Page 14

There was also another odd part of the agreement that guaranteed if you were to judge someone worthy of life protection with copyright, you were at minimum to guarantee 70 year protection after their death (Page 3).

ARTICLE 10.6: DURATION OF AUTHORS? RIGHTS

Each Party shall provide that, where the term of protection of a work is to be calculated on the basis of the life of a natural person, the term shall be not less than the life of the author and 70 years after the author?s death.

Modplan (profile) says:

Re: Re: Re: Re:

In which case by all means retest them – here it seems irrelevant of being identical or bioequivalent or other such justified concerns that might require a generic drug maker to test again, only that a patentee not have any data from such tests be used in conjunction with generic makers attempts at getting approved. It’s slow down on a process they’ve apparently already been excluded from in not being able to produce a patented drug.

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