Did Congress Really Not Pay Attention To What Happened With SOPA? CISPA Ignorance Is Astounding
Tuesday, April 10, 2012 9:40 PM
We recently wrote about how HR 3523, the Cyber Intelligence Sharing and Protection Act -- or CISPA -- is an incredibly bad bill that would basically make it much, much easier for the government to spy on all sorts of private communications. The bill already has over 100 sponsors, some of whom were on the right side of SOPA, but seem to have gone astray here. The concern over CISPA has been growing rapidly and the netroots are speaking out and warning Congress that this is a bill they do not want.
And yet... Congress still appears ready to move forward with CISPA the week of April 23rd. And the amazing (no, astounding) thing is that many politicians in Congress have no idea that people are up in arms over this yet. In talking to different people on Capitol Hill, the story is along the lines of "oh, is there some controversy over this?" Like SOPA early on, it appears that Congress simply takes for granted that if you call something one thing (whether it's "stopping piracy" or "protecting cybersecurity") no one will bother looking at the details to realize just how problematic the bill actually is.
But this is a bad, bad bill, which effectively will lead to significant spying on internet usage and private communications by the government with little to no oversight -- and that includes not just domestic law enforcement, but military spying as well. The whole thing is absolutely crazy (especially when there are less onerous bills that are much more sensible).
The truly amazing part to me is the fact that politicians in Congress would simply think that there's no problem making massive internet regulatory change without actually looking at the impact on ordinary users and how they feel about it so soon after SOPA. It seems clear that many elected officials still haven't received the message that politicians should not be mucking with the internet when they clearly don't understand it.
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Publishing Isn't A Job Anymore: It's A Button
Tuesday, April 10, 2012 8:40 PM
Tim Lee points us to a really fantastic (as per usual) discussion with Clay Shirky about media disruption, in which he makes the key point that publishing is no longer a job, but a button:
Publishing is not evolving. Publishing is going away. Because the word “publishing” means a cadre of professionals who are taking on the incredible difficulty and complexity and expense of making something public. That’s not a job anymore. That’s a button. There’s a button that says “publish,” and when you press it, it’s done.
In ye olden times of 1997, it was difficult and expensive to make things public, and it was easy and cheap to keep things private. Privacy was the default setting. We had a class of people called publishers because it took special professional skill to make words and images visible to the public. Now it doesn’t take professional skills. It doesn’t take any skills. It takes a Wordpress install.
Now, of course, publishing as a profession means more than just making public, but that is the root of it, and Shriky is absolutely right that that role is changing completely -- and that means that the industries that built themselves up by glorifying their ability to be a gatekeeper in making things public are going to struggle to adapt. There certainly are other important roles, but they're not "publishing" per se.:
The question isn’t what happens to publishing — the entire category has been evacuated. The question is, what are the parent professions needed around writing? Publishing isn’t one of them. Editing, we need, desperately. Fact-checking, we need. For some kinds of long-form texts, we need designers. Will we have a movie-studio kind of setup, where you have one class of cinematographers over here and another class of art directors over there, and you hire them and put them together for different projects, or is all of that stuff going to be bundled under one roof? We don’t know yet. But the publishing apparatus is gone. Even if people want a physical artifact — pipe the PDF to a printing machine.
When you think about it, this really does hit on the key point of disruption for so many of the industries we talk about today. The main role that the gatekeepers had was in helping to "make your work public." But that role isn't needed any more (nor is there any real gate any more). You can make anything public that you want and reach the entire world. Of course, there are still plenty of other things -- making it better, promoting it, monetizing it, etc. And all of those roles are very important, but the role of making something public was the only one that really had that gate. And since there was that gate, the gatkeeper could control everything and demand total ownership over the work. That's what we've seen for centuries.
The difference today is that the gates are gone, the need for help to make something public is gone, and those other things -- publicity, improving the product, monetizing, etc. -- can all be done by lots of organizations, rather than just a few. Thus, there is no need for gatekeepers, but (once again), it's all about the enablers. The enablers help make your work better, but still leave you and the work at the center. The gatekeepers stripped your work from you for a pittance. It's a very different world, but it's a much better world for creators -- and it all comes back to the fact that publishing is no longer a job, but a button.
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Is Lobbying Closer To Bribery... Or Extortion?
Tuesday, April 10, 2012 7:37 PM
We've certainly talked quite a bit about the institutional-level corruption of the way Congress and lobbying works, but a recent This American Life episode, done in partnership with the Planet Money team takes a much deeper dive into how lobbying works. You absolutely should listen to it. It's really fascinating, even for folks who follow a lot of this stuff. There is also a full transcript, but hearing the whole thing is quite fascinating. Among the elements that are most interesting are the details of just how much time and effort goes into politicians raising money, and how the various fundraisers work.
But one thing that struck me in listening to it, was a comment made towards the end by (former) Senator Russ Feingold, who points out that while most people think of lobbying as bribery, they often have the picture backwards. It's extortion:
I've had conversations with Democratic givers out here in the Bay Area and I'll tell you, you wouldn't believe the requests they're getting. The opening ante is a million dollars. It's not, gee, it'd be nice if you give a million. That's sort of the baseline. This is unprecedented. And, in fact, one thing that John and I experienced was that sometimes the corporations that didn't like the system would come to us and say, you know, you guys, it's not legalized bribery, it's legalized extortion. Because it's not like the company CEO calls up to say, gee, I'd love to give you some money. It's usually the other way around. The politician or their agent who's got the Super PAC, they're the ones that are calling up and asking for the money.
This is actually confirmed much earlier in the show, when former lobbyist Jimmy Williams explains that part of the job of the lobbyist is to avoid calls from politicians who are always asking for money:
Jimmy Williams: A lot of them would call and say, "Hey, can you host an event for me?" And you never want to say no. Actually, no. You always want to say no. In fact, you always want to say no. But, you could look on your phone with these caller IDs and you would be like, really? I'm not taking that call.
Alex Blumberg: Oh, so you would dodge calls for fundraising?
Jimmy Williams: Oh yeah. Every lobbyist does. Are you kidding? You spend most of your time dodging phone calls. Oh yeah.
What's equally stunning as you listen to it, is how much everyone seems to dislike the system. The politicians hate having to spend many hours each day fundraising (which they do from phone banks across the street from the Capitol, because they're not allowed to do it from their offices). The lobbyists hate having to focus on raising money for the politicians. The donors hate getting the calls asking for more money. One politicians talks about how he burned out all his friends:
Walt Minnick: You essentially wear out your friends and you wear out the people who are your natural supporters, because if someone writes you one check or comes to a fundraiser, they get on a list. And three or four months later you call them back again. And the best thing about being an ex-congressman is my friends now return my phone calls.
The show concludes with a fascinating discussion between Senators John McCain and Russ Feingold, who famously passed campaign finance reform a decade or so ago, only to see most of what they worked for get tossed aside by the Supreme Court's Citizens United case. McCain explains that the Supreme Court ruled the way it did because it simply has no idea how corrupt the political system is today:
John McCain: At first, I was outraged. The day that Russ and I went over and observed the arguments, the questions that were asked, the naivety of the questions that were asked and the arrogance of some of the questioners, it was just stunning. Particularly Scalia with his sarcasm. Why shouldn't these people be able to engage in this process? Why do you want to restrict them from their rights of free speech? And the questions they asked showed they had not the slightest clue as to what a political campaign is all about and the role of money that it plays in political campaigns. And I remember when Russ and I walked out of there, I said, Russ, we're going to lose and it's because they are clueless. Remember that day we were over there, Russ?
Russ Feingold: Absolutely, John. I couldn't agree with you more. It clearly was one of the worst decisions ever of the Supreme Court. The trouble with this issue-- and I think John would agree with this-- is people have gotten so down about it, they think it's always been this way. Well, it's never been this way, since 1907. It's never been the case that when you buy toothpaste or detergent or a gallon of gas, that the next day that money can be used on a candidate that you don't believe in. That's brand new. That's never happened since the Tillman act and the Taft Hartley Act. And so, people have to realize this is a whole new deal. It's not business as usual.
So why doesn't it get fixed? Well, because the people in power now know how to use the system to win, so they're afraid to mess with it, and potentially lose their ability to use the system as it stands now to succeed.
Russ Feingold: We managed to get-- against all odds, we did get people. It took a lot of hard work. Now the problem is, of course, is people are reticent to do that because they got elected under the system.
Alex Blumberg: So it's just fear of change?
Russ Feingold: Sure. When you win a certain way, your people say to you, hey, this is how we do it and this is how we won. We better not mess with success. I think that's one of the problems in this presidential race, where not only the Republicans, but even my candidate, President Obama, has opened the door to this unlimited money through some of his people. It's hard to get people to change something after they win that way. And that's one of my worries about it.
It really is worth listening to the whole thing if you want to understand the institutional, unavoidable level of corruption in DC -- even if it's not the way you may have suspected it worked. The folks at Planet Money have also done some follow up stories that are interesting, including a detailing of the most and least lucrative committee assignments. In the full episode, they explain that committee assignments are all a part of the corrupt process. If you get on a "good" committee (define by its ability to raise more money from lobbyists), it also means that your party demands that you pay more money back to the party, or you may lose that lucrative committee seat. Still, it may surprise some folks that the least lucrative position is on the Judiciary Committee. That's the committee that handled SOPA and PIPA... which involved no shortage of lobbyists. The cynical voice in the back of my head wonders if part of the SOPA/PIPA fight was really about turning the Judiciary Committee into a cash-flow positive committee, rather than a cash-flow negative committee.
Also, if you were wondering how/when most political fundraisers happen, there's a breakdown for that as well:
If you've got the money, it looks like you could eat all your meals (and have some drinks) at fundraisers.
And if you're wondering where these fundraisers happen? Planet Money has mapped those out as well. The most common locations happen to (conveniently) form a ring around the Capitol:
No reason to travel very far to collect your money, I guess...
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If Piracy Is So Devastating, Why Are We Seeing An Unprecedented Outpouring Of Creativity?
Tuesday, April 10, 2012 5:35 PM
One of the favorite tropes of the anti-piracy crowd is that all this unauthorized sharing is killing culture, pauperizing artists and generally making the world go to hell in a handbasket. The only pieces of evidence adduced in support of that position are the market reports put together for the copyright industries that (a) say the sky is falling and (b) base that analysis on the industries' own unsubstantiated claims.
In fact, as we know, for all of the copyright industries, the Sky is Rising. But that's only half the story, for alongside the traditional distribution channels, there are now entirely new ways in which people can create and share their creations. These have only emerged in the last few years, and so there is a natural tendency to underestimate their importance. But gradually figures are emerging that hint at the extraordinary scale of the creativity they foster.
For example, user uploads to YouTube are now running at one hour of videos every second -- that's 86,400 hours every day, and over thirty million hours per year. Now, a portion of that content may be copyright material -- but only some, and probably not much. That's because Google has been employing its Content ID system for some time now:
What is Content ID?
YouTube's state-of-the-art technologies let rights owners:
Identify user-uploaded videos comprised entirely OR partially of their content and
Choose, in advance, what they want to happen when those videos are found. Make money from them. Get stats on them. Or block them from YouTube altogether.
It's up to you.
How does Content ID work?
Rights holders deliver YouTube reference files (audio-only or video) of content that they own, metadata describing that content, and policies on what they want YouTube to do when we find a match.
We compare videos uploaded to YouTube against those reference files.
Our technology automatically identifies your content and applies your preferred policy: monetise, track or block.
What the use of Google's Content ID means is that the stuff copyright companies care about is already being caught. What's left varies from high-art mashups to how-to manuals to cat videos. But whatever it is, there's lots of it, with millions of hours of new content being uploaded every year.
Tumblr hosts a different kind of user-generated content, but with similarly huge holdings. It currently has over 20 billion posts on 51 million blogs, and each day, over 60 million more are added:
The average Tumblr user creates 14 original posts each month, and reblogs 3. Half of those posts are photos. The rest are split between text, links, quotes, music, and video.
Again, some of the music and video shared on Tumblr may be unauthorized sharing, but much of that creativity -- the photos, text and links -- almost certainly isn't.
Meanwhile, on a site that most people have forgotten about, assuming they'd ever heard about it in the first place, content in the form of wikis is being produced in ever-greater quantities:
Listed among the top 10 social networks and blogs in the U.S. by Nielsen in 2011, Wikia sees nearly 50 million global unique visitors per month, has over 339,000 communities (600 new ones added daily), and is witnessing 42% traffic growth year-over-year.
More specifically, gaming and entertainment communities have been Wikia’s bread and butter. The site hosts over 65k game wikis with 2.48M game pages. Elder Scrolls, for example has 8k+ content pages and it would take a month to read them all at 5 minutes per page.
Putting these kind of figures together with the daily output of hundreds of millions of users on Twitter and its Chinese analogs -- to say nothing of the near-billion Facebookers -- and what emerges is a ferment of creativity the likes of which the world has never seen before. So how can this be squared with the repeated claims that piracy is somehow leading to the death of culture?
I think the answer is that in the eyes of many commentators all this activity simply "doesn't count". That is, a video on YouTube is not "real" art, and a Tumblr post is not "real" literature. So when people complain that piracy is "killing" culture, what they are really expressing is their own incomprehension in the face of this new kind of art.
To admit that piracy isn't a problem, because it seems to be leading to more, not less creativity, would be to admit that the huge outpourings of user-generated content are indeed art, some of it even rather good art. And that, rather than any supposed harm from unauthorized sharing of copyright materials, is what many seem to fear. For the copyright industries and cultural commentators it calls into question their ability to make aesthetic judgments -- and hence money -- while for the artists, it questions their privileged position in society, and the special role of their art there.
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Furniture Designer Fights Copying By Busting Up Some Chairs
Tuesday, April 10, 2012 3:36 PM
For the most part, furniture designs can't be copyrighted. Just like fashion, which thrives without copyright, the furniture industry serves as an excellent example of why intellectual property is not necessary to promote innovation and commercial success. Copying happens in these industries, and while it's sometimes fought on trademark grounds, the prevalence of cheap knockoff products is an unavoidable reality. But cheap knockoffs are exactly that, and they meet the demands of a different market segment, where low price is more important than quality, so the original designers can compete either by focusing on their strength in the high-end market, by entering the lower market with their own cheaper products, or both.
Reader Baruch Moskovits points us to an example of the former in a video from furniture designer Republic of Fritz Hansen, makers of the popular Series 7 chair, which has an iconic (and frequently copied) design. The company is legally powerless to prevent copying, so they took a more pragmatic approach: smashing the knockoffs to pieces on YouTube—not for the catharsis, but to demonstrate how much better their original Series 7 chair holds up.
If you didn't watch the video, suffice to say the two knockoffs snap like twigs, while the original withstands the same punishment without any signs of damage. Fritz Hansen has rightly recognized what it offers that others don't, and has found a high-impact way of demonstrating this advantage. Naturally some people won't care: they will choose affordability over durability. But those people were probably never going to buy a $500 chair anyway, whether or not cheap alternatives for that specific design are available. Meanwhile, customers who value and can afford top-quality merchandise see a clear demonstration of what they're getting for their money, and one that reflects well not just on the Series 7 but on Fritz Hansen's entire line.
It's extremely rare, in any industry, for one creator to copy another without adding or changing something—a lower price point, better marketing, a better distribution model, a valuable curation service. This is how copying expands markets: originators and copiers must both focus the things that make them stand out, which means finding ways to make a product appeal to new and different people. Strong intellectual property protections exist to shut down such copying, but as industries like furniture and fashion demonstrate, this is unnecessary and potentially quite detrimental. Beating your competitors in court only proves that you were first—obliterating their products on YouTube proves that you're better.
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Huh? Skype Thinks That If You Hate Twitter & Facebook You'll Use Skype More
Tuesday, April 10, 2012 12:36 PM
We've seen some bizarre advertising campaigns in the past, but I'm really left scratching my head about Skype's new ad campaign, the sole focus of which seems to be about bashing two other popular services: Twitter and Facebook.
Now, I use all three of these products -- but I use them for very, very different purposes. Skype is useful for all sorts of things, but it's an entirely different kind of service than Twitter or Facebook. And, actually, I stay in touch with plenty of people via Twitter and Facebook. More importantly, bashing Twitter and Facebook doesn't make me any more interested in using Skype. It's not like I'm suddenly going to say, "Hey person I normally communicate with via Twitter, thanks to this advertisement for The Skype, I now wish to have a real time audio or video chat with you." No, as always, I use the different tools for what they're good at, when appropriate.
I get that Skype wants to position itself as a social network, but it's not. It's a communication tool -- and it's good at what it does -- but attacking other services that don't compete with it doesn't make much sense. In fact, if anything, it leads me to think less of Skype. I really do find Skype's instant messaging and voice/video features quite useful. But over the last few years, the company has increasingly cluttered its interface and consistently made it more and more annoying, rather than more and more useful. The fact that it now thinks the proper strategy is to attack services that people use in totally different and completely non-competitive ways, only makes me think that Skype has lost its way and its vision. That makes me, a paying customer of Skype, concerned that the company is increasingly focused on chasing some silly strategy that will continue to make my life worse as a consumer. Such a stupid ad campaign just makes me wonder if I should be exploring real alternatives to Skype.
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UK Community Gives Up Waiting For High Speed Broadband: Digs Its Own Fiber Trenches
Tuesday, April 10, 2012 9:36 AM
Providers of high speed broadband love to talk about how they're providing private networks that shouldn't be regulated at all, but they tend to ignore the fact that they usually rely on government subsidies in the form of rights of way -- the legal ability to dig the trenches (or string cables on poles) to run the key infrastructure. Now, of course, we've heard of various muni-broadband projects, but one community in the UK apparently got so fed up with waiting for a big broadband provider to bring service to their village that they not only started setting up their own system, but they literally got dozens of residents to help them start digging the 51 mile-long trench where the fiber optic cable that connects them to the wider internet will lie. Talk about taking matters into your own hands...
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Stardock CEO Wants To Maximize Sales, Not Stop Piracy
Tuesday, April 10, 2012 6:35 AM
We have often questioned the intentions of those who try to fight and stop piracy at all costs. We have even raised the question in the past, "Which is more important, stopping piracy or increasing sales?" We are not alone in asking this question either. Some within the entertainment industry are asking it as well.
TtfnJohn sent along the February edition of Stardock Magazine in which Stardock's CEO Brad Wardell asks that very question of other game developers:
When Stardock was running Impulse, we got to hear a lot from companies regarding to their feelings towards software piracy. In many cases, it was clear that the motivation to stop piracy was less about maximizing sales and more about preventing people who didn't pay for the game from playing it. I felt this was misguided.
When I see our games pirated, it definitely annoys me. I put a lot of myself into our software and seeing someone "stealing" it is upsetting. But at the same time, the response to piracy should be, to paraphrase The Godfather, "Just business". Simply put, the goal should be to maximize sales, not worry about people who wouldn't buy your game in the first place. I've said this in the past but until we were digitally distributing third party games, I didn't realize how prevalent the "stop those pirates" philosophy was.
Brad certainly understands what the answer to that question is. He continues by explaining that there are two types of pirates, those that just want free stuff no matter what and underserved customers. Just as we have explained numerous times, it is pointless and counter productive to go after the former type of pirate. It is far more rewarding to actually serve those customers that are more than willing to give you money.
Just as we have seen Valve grow in markets around the world by serving those underserved customers, other game developers, as well as other content creators, can make more money and grow in their respective industries by doing the same. So stop wasting time and money fighting a losing battle. Take that time, effort and money and put it where it really matters, providing the best possible service for your customers as possible.
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DailyDirt: National Robotics Week -- Save The Bots!
Tuesday, April 10, 2012 5:30 AM
The third annual National Robotics Week is currently underway, if you didn't get the memo. The second week of April was officially designated for robotics in 2010 by House Resolution 1055. If you haven't hugged your robot today, it's about time you did, perhaps.
* A full calendar of events is available at nationalroboticsweek.org. There's something going on in every state, and you can keep up with some of the activity via Facebook. [url]
* The iRobot Corp, famous for its line of robot vacuum cleaners, is sponsoring some public awareness projects for students to get kids interested in robots and science/technology subjects. FYI, iRobot products are also serving in the military to help clear out explosives from the battlefield, so its robots don't just clean up dirt. [url]
* If you're in Florida, the University of Miami School of Law will be discussing legal and policy issues relating to robotics at its inaugural 'We Robot' conference, April 21-22. The future of lawsuits against robots covers some things you might not expect. [url]
* To discover more interesting robotics-related content, check out what's currently floating around the StumbleUpon universe. [url]
By the way, StumbleUpon can recommend some good Techdirt articles, too.
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Yet Another Copyright Troll Case Kicked Out Of Court, With Excellent Reasoning From The Judge
Tuesday, April 10, 2012 4:45 AM
We've been seeing a series of district court rulings around the country rejecting the copyright trolling practice of suing a whole bunch of John Does in a single lawsuit, where the clear goal is simply to identify the individuals so the copyright holder can send threatening letters and seek to extract a settlement payment. The fact is that these copyright holders are using the court as a pressure point in their business model, rather than for actual judicial purposes. It's good that it appears to be becoming common knowledge among the judiciary that these sorts of lawsuits are unacceptable. This particular case was rejected for a bunch of good reasons, starting with the fact that moving forward with the case and granting early discovery won't actually identify the defendants, since IP addresses are such weak identifiers.
The magistrate judge, Howard R. Lloyd, notes that granting early discovery is only supposed to be done if doing so actually identifies the Does. And while the copyright holder, Hard Drive Productions, insists that it will, the judge notes that the plaintiff's own arguments prove this is simply not true. That's because they admitted that once they got the IP addresses, they would then need to contact the owner of the account and seek to identify who was actually using the account at the time.
Thus, plaintiff will only consider naming and serving a defendant after it has (1) contacted the ISP subscriber one or more times, (2) researched that subscriber and anyone else who might have used the ISP subscription, (3) met and conferred with the subscriber; (4) attempted to settle with the subscriber, (5) elicited evidence of a defense from the subscriber, (6) evaluated the credibility of that evidence, and (7) found it wanting. In addition, plaintiff also admits that in the event that a subscriber refuses to “participate” in the above process, plaintiff may need to request further discovery. It is abundantly clear that plaintiff’s requested discovery is not “very likely” to reveal the identities of the Doe defendants. Indeed, plaintiff admitted at the hearing that neither it nor any other plaintiff it is aware of has ever served a single defendant in one of these cases where early discovery has been granted.
The judge goes on to reject a number of other arguments as well, before denying the early discovery and dumping all but one of the defendants (also becoming standard in a lot of these lawsuits). But the conclusion discussion is where it gets really good:
The court realizes that this decision may frustrate plaintiff and other copyright holders who, quite understandably, wish to curtail online infringement of their works. Unfortunately, it would appear that the technology that enables copyright infringement has outpaced technology that prevents it. The court recognizes that plaintiff is aggrieved by the apparent infringement and is sympathetic toward its argument that lawsuits like this one are the only way for it to find and stop infringers. However, the court will not assist a plaintiff who seems to have no desire to actually litigate but instead seems to be using the courts to pursue an extrajudicial business plan against possible infringers (and innocent others caught up in the ISP net). Plaintiff seeks to enlist the aid of the court to obtain information through the litigation discovery process so that it can pursue a non-judicial remedy that focuses on extracting “settlement” payments from persons who may or may not be infringers. This the court is not willing to do.
As these kinds of rulings continue to roll out of courts, hopefully a strong precedent is being set across the country that such lawsuits are simply not acceptable.
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No, Netflix Has NOT Formed A Pro-SOPA SuperPAC
Tuesday, April 10, 2012 3:44 AM
Update: Netflix has confirmed through its official Twitter account that the PAC was not set up to support SOPA/PIPA.
Okay, can we kill this story quickly? There's a ton of buzz going around claiming that Netflix has built up a Super PAC to promote a pro-SOPA agenda. As far as I can tell, this is simply not true. It started from a report in Politico, which mentioned (accurately) that Netflix had formed a PAC called FLIXPAC, and is getting much more aggressive in the lobbying/legislative front. This follows Netflix's trend of spending more and more on lobbying in the last few years: $20,000 in 2009, $130,000 in 2010 and $500,000 in 2011. Where it gets odd is that Politico tries to tie this to SOPA/PIPA by listing out those amounts and noting that the $500k in 2011 was spent "as legislative debates over the Stop Online Piracy Act, Protect IP Act and Video Privacy Protection Act raged."
In turn, the folks at RT played a game of bad reporter telephone and spun it into Netflix funding a pro-SOPA super PAC, "whose main goal is to promote SOPA-like legislation." I don't know what's up with the folks at RT. While their TV reporting can be quite good, their online reporting is abysmal at times. They clearly exaggerate stories or write from a position of ignorance.
The truth is that Netflix was basically neutral on SOPA, knowing that it had to balance its technology side and the fact that it is constantly negotiating with the big Hollywood studios on deals. Politically, it basically had to take a neutral position. But the company knows better than to out-and-out support really bad internet legislation. The company has been active on things like net neutrality and the Video Privacy Protection Act -- things that do have a direct impact on it. Sure, it would have been great if Netflix had been a strong anti-SOPA faction, the fact that it stayed neutral and is now ramping up its lobbying does not, in any way, mean that it's suddenly pushing for pro-SOPA legislation. The company appears to have a lot of other things on its legislative agenda.
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AOL Sells Its Patents To Microsoft For $1 Billion: Microsoft Now Owns Netscape IP
Tuesday, April 10, 2012 2:58 AM
Just a few weeks ago, we had mentioned reports that AOL was looking to sell its patents. Sometimes, those kinds of things take a while, and may even involve auctions and whatnot. However, it looks like AOL got the deal done quickly, selling over 800 patents to Microsoft for just over $1 billion. The "good news" here is that the patents don't end up in the hands of a pure patent troll, who will do nothing but sue over them. The bad news, of course, is that Microsoft is quite aggressive in suing others for patent infringement anyway, and you can expect some of these patents to start showing up in wasteful, innovation-hindering lawsuits before too long. And, of course, there's the natural dead-weight loss of a ton of money going into buying patents, rather than directly into actual innovation.
Of course, there's an interesting twist in all of this. Peter Kafka notes that Microsoft basically bought all Netscape assets outside of the name/trademarks, etc. From a historical standpoint, that's pretty interesting, seeing as how big the early internet battle was between Microsoft and Netscape for who would win the war to control the window into the internet. It would then be especially ironic (and ridiculous) if Microsoft used those patents to sue others, after spending so much time trying to kill off Netscape... Such is the bizarre world of patents these days, I guess.
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Jack White Releases Single... By Launching 1,000 Balloons With Flexi Discs Attached
Tuesday, April 10, 2012 1:51 AM
The tacocopter may be necessary if you want to take to the local skies to deliver a product to a specific location, but what if you just want to distribute a product semi-randomly? Famed musician Jack White -- who has quite a history of doing cool experiments with new business models that make use of unique scarcities -- has released a new single from a forthcoming album by tying 1,000 flexi-discs with the single on them to 1,000 giant blue balloons, and launching them into the sky. Yes, this was done on April 1st, and the whole thing was done somewhat tongue-in-cheek (it was described as "an experiment exploring nontraditional forms of record distribution and a way to get records in the hands of people who don't visit record shops"), but it's still pretty cool.
Third Man Records, the label White created, admits that "the typical recovery rate on similar balloon launches... is around 10%", making these flexi-discs pretty likely to be extremely rare for those who find them. As the Creators' Freedom Project points out:
It’s super unique, the balloon distributed discs will be a hot item when they’re eventually recovered, and the instructions on how to tell the rest of the world via social media will help to spread the word about the record since the actual release of the album is the next week.
Indeed, the label is already tracking where the balloons are being found and reported.
I know that some of our usual critics will come up with ways to mock this, but it's yet another example of an artist doing something fun and creative that is a unique way to connect with fans.
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MPAA Stops Picking On 'Bully', Actually Gets Some Good Press For Once
Tuesday, April 10, 2012 12:45 AM
When the producers of the documentary Bully decided to protest the MPAA rating system, and then AMC supported them by announcing they would screen the unrated film, I wrote about how it represented a serious erosion of the MPAA's artificial grip on film ratings. Since then, the MPAA has softened on the issue, and agreed to grant a PG-13 rating to a slightly-edited version of the movie:
The change was made following the removal of several instances of the F-word, but leaving intact a particularly powerful and important scene of teen Alex Libby being bullied and harassed on a bus. In a press release, distributor The Weinstein Company lauded the MPAA's decision, calling it a victory "for the parents, educators, lawmakers, and most importantly, children, everywhere who have been fighting for months for the appropriate PG-13 rating without cutting some of the most sensitive moments."
Well, that's probably the nicest thing a non-member has said about the MPAA in awhile. Harvey Weinstein himself said "Senator Dodd is a hero for championing this cause", conjuring up images of the mighty MPAA CEO carving through hordes of busybodies from the Parents Television Council. But while Chris Dodd is surely happy for some good press, his recent interview with The Hollywood Reporter (the one in which he dropped vague hints about the return of SOPA) suggests the MPAA's decision may have been primarily personal:
THR: Why did you host a screening of Bully at the MPAA with Harvey Weinstein when The Weinstein Co. isn't a member company?
Dodd: Because I care about the issue, and I thought it was a great film. I called Harvey, and I said I would invite the superintendent of schools, teachers and principals, an expert on bullying and Lee Hirsch, the director. We had a great discussion after the screening. You're right, Harvey is not a member of the MPAA, but he's a brilliant film producer, and it's an important film on an important subject matter. It is utilizing the platform I was given at the MPAA.
THR: But Weinstein was highly critical of the ratings board at the time and has used his attacks against the board to market the movie.
Dodd: First of all, I've known Harvey for 25, 30 years, and we've been friends. He was very helpful to me as a candidate for Congress and as a senator over the years.
There's no "second of all" forthcoming. He was just "utilizing the platform" he was "given" to do favors for his friends. It's nice to see that he's still putting the skill-set he perfected in politics to good use as a lobbyist.
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Final Stats On Heartland Payment Systems Class Action: $1,925 To 11 People, $600k To Lawyers
Monday, April 09, 2012 11:40 PM
We've been discussing for years just how broken the "class action" lawsuit system is in the US. The idea behind it sounds like it makes sense: if a company wrongs a bunch of people, the ability to bundle them all into a class, and get recompense via a single lawsuit seems like a good idea. But, in practice, class action lawsuits have basically just become a feeding trough for lawyers to become rich, with very little done to help those wronged. In some cases, the end results of class action lawsuits are completely laughable. Years ago, for example, we highlighted how Netflix "settled" a class action lawsuit by giving everyone a free one-month "upgrade," but if you failed to downgrade by the end of the month, you were kept on the higher plan and charged for it. As I said at the time, that wasn't a "settlement" so much as a marketing program. And, oh yeah, the lawyers who brought the lawsuit against Netflix got $2.5 million.
Law professor Eric Goldman, who's spoken out about the broken class action system in the past, has another ridiculous example, this time involving Heartland Payment Systems. You may recall Heartland as being the company that had the largest security breach ever (at the time), losing data on over 100 million credit cards. A class action lawsuit (of course) followed, and Heartland agreed to pay up to anyone who could show that they were a victim of fraud from the loss. The company didn't have cardholder addresses, so it spent $1.5 million to advertise the settlement, and estimated that over 80% of the potential class saw an ad at least 2.5 times. Either way, not too many claims came in. A total of 290 claims were made, but only 11 were found to be valid.
Heartland had to pay a maximum of $175 to those individuals. Assuming it did pay the maximum, that means the "victims" of the breach got a grand total of $1925 (perhaps less). According to the settlement agreement, Heartland was supposed to pay out at least $1 million to victims (and up to $2.4 million). If less than $1 million worth of victims were found, the rest would go to non-profit organizations focused on protecting consumer privacy rights. That leaves $998,075 for those non-profits.
So, let's summarize:
* Actual victims got: $1925
* Heartland spent $1.5 million to find the people to give out that $1925.
* Somewhere around $998,075 goes to non-profits
* The lawyers who brought the lawsuit? They got $606,192.50. For helping 11 people get less than $200 each. Nice work if you can get it.
That $600k is actually a "discount." The court recognizes the absurdity of using the full $1 million in calculating the "settlement," so it knocks down the "value" (but not the payment) of the money going to the nonprofits, and then uses a bunch of random magic to award the attorneys that $600+k. And, of course, Heartland also ended up paying its own lawyers a ton. In the end, this system involved Heartland paying many millions of dollars... to benefit a "class" of 11 people and giving them less than $2,000.
As Goldman notes, the whole thing seems bizarre:
Thus, it appears they spent over $130,000 to generate each legitimate claim. Surprisingly, the court blithely treats the $1.5M expenditure as a cost of doing business, but I can't wrap my head around it. What an obscene waste of money! Add in the $270k spent on claims administration, and it appears that the parties spent $160k per legitimate claimant. The court isn't bothered by the $270k expenses either, even though that cost about $1k per tendered claim (remember, there were 290 total claims).
Something is broken with the system.
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SF Students Suspended & Barred From Walking At Graduation Because They Joked About Teachers On A Blog
Monday, April 09, 2012 10:43 PM
We just recently talked about the famous Tinker v. Des Moines Supreme Court ruling that establishes that students have First Amendment rights. Apparently some schools still don't realize this. Thankfully, there are some organizations willing to step in and remind them when they get confused. The ACLU of Northern California and the Asian Law Caucus were apparently able to successfully convince a San Francisco high school to reverse a previous ruling in which three students were suspended for posting some parody/joking blogs about some teachers:
In March, after students at a San Francisco high school posted parodies and irreverent memes from their home computers about teachers and school administrators on a Tumblr blog (“Teaches Pink Floyd for 3 Weeks; Makes Final Project Due In 3 Days”; “Nags Student Govt About Being On Task; Lags On Everything”), the principal dragged three students she suspected of creating the blog posts into her office and interrogated them at length. (The blog has since been taken down.) The principal then immediately suspended the students for three days, accusing them of bullying and disrupting school activities. The students were also barred from attending a school dance and prom, and even from walking with their classmates at graduation. In addition, the principal did not provide the students with an opportunity to resolve the concerns through a restorative justice approach prior to imposing the punishments, which disregards the School District’s prioritization of restorative justice as an alternative, when possible, to suspension and expulsion.
That seems like a pretty extreme reaction. When I was in high school, I actually remember doing something similar -- parodying the teacher -- in a paper for that teacher. Thankfully, he had a sense of humor. But either way, this is something that tons of high school kids do all the time. And it's clearly protected speech. Once these groups contacted the school and explained the law, the school backed down:
After we contacted the San Francisco Unified School District, they took prompt action to investigate the matter and reverse the discipline. Although the students already missed three days of school, the suspensions have been removed from their records, and they’ll be dancing at prom, and walking with their classmates at graduation.
It's too bad it even needed to go that far. What's really disturbing in all of this is what the school officials are teaching kids. Joking and parody are key forms of education and creativity. It's too bad some schools still don't recognize that (or what the law actually says).
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Once Again, The Administration Vindictively Charges A Whistleblower As Being A Spy
Monday, April 09, 2012 9:46 PM
This is getting ridiculous. When President Obama was campaigning and even when he first took office, he claimed that it was a priority to support whistleblowing activities. And yet, as President, he has been ridiculously aggressive in pushing vindictive criminal lawsuits against whistleblowers -- often by abusing the Espionage Act. The Espionage Act is supposed to be used against spies. But the Obama Justice Department has used it over and over again against whistleblowers in a purely vindictive manner. In fact, he's used it to bring charges against whistleblowers more often than every other President combined. This strategy turned out to be a disaster in the Thomas Drake case (which was initiated by President Bush, but continued with strong support by President Obama), where the case completely collapsed, once it became clear that the charges were nothing but a vindictive attack on a whistleblower.
Apparently the Obama administration has not learned its lesson. It has now used the Espionage Act to go after a former CIA agent, John Kiriakou, who blew the whistle on the CIA's waterboarding torture regime. This now makes it the sixth Espionage Act prosecution of a whistleblower brought by the Obama administration. All other presidents before him used it a total of 3 times. As the Government Accountability Project notes, the really stunning thing in all of this is that Kiriakou will be the only person prosecuted in relation to the use of waterboarding -- and simply for blowing the whistle on it.
if you torture a prisoner, you will not be held criminally liable, but if you blow the whistle on torture, you risk criminal prosecution under the Espionage Act.
Something seems very, very wrong about this.
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Forced MPAA Filter On IsoHunt Means Legitimate Content Is Being Censored
Monday, April 09, 2012 8:45 PM
One of the more bizarre rulings in copyright/file sharing cases was the district court ruling in the IsoHunt search engine case a couple years ago. It's still involved in the appeals process, but the district court is one of the only courts so far to broadly interpret the DMCA's "red flags" rule to mean that general knowledge means you have to block access. The ruling ended up being that IsoHunt basically had to accept a keyword filter from the MPAA and block all access to anything that matched the keywords. As you can imagine, that's leading to significant overblocking of legitimate content.
TorrentFreak has the unfortunate story of filmmaker Brian Taylor, who released a short horror film called "the Bite" via his En Queue Film production studio, and decided to distribute it via isoHunt. However, that's when things went bad:
"I got it going, had downloads start from the US and Europe almost immediately, which made me a very happy guy," Taylor told TorrentFreak.
However, this enthusiasm faded quickly when he tried to access the torrent from a US connection a day later. Instead of a link to the torrent file the filmmaker was welcomed with the following message. “Torrent has been censored, as required by US court.”
They also note that a torrent of public domain music has been blocked by the MPAA (even though the MPAA's filter is about movies, not music). Of course, this is what happens when you force overblocking and the use of technologically stupid filtering methods like keywords. What's amazing is that a court made this same mistake a decade ago with Napster (forcing keyword blocking) and it didn't work then, and doesn't work now. It's amazing that judges who clearly are technologically illiterate find it reasonable to make rules up out of thin air like this one, that not only does little to block any actual infringement, but does plenty to block legitimate uses of tools.
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NY Public Radio Station WNYC Decides That Time Shifting = Piracy
Monday, April 09, 2012 7:41 PM
I grew up in NY, and used to listen to WNYC quite a bit as a kid. It's the local public radio station. I'm pretty sure my parents still listen to it all the time. Also, I'm a huge fan of WNYC's On The Media program, which I link to frequently (and, full disclosure, who have had me on as a guest a couple of times). So it's somewhat disappointing to find out that someone at the organization appears to think that timeshifting is piracy. It is not, and the organization is wrong.
Trey Harris is a big fan of WNYC, and a regular pledge drive supporter. Of course, to make his listening easier, he uses a program called Flip4Mac, which not only lets him listen to the streams, but lets him do some basic time shifting of the streams: pause, rewind, fast-forward, etc. This makes the WNYC feed more valuable and useful for him, and he's shown it by supporting them even more, having recently increased his yearly contribution.
Unfortunately, WNYC thinks he's a crook. A few days ago, the app stopped working with the WNYC feed. Trey contacted them to let them know that there must be a bug that needed fixing... and he was told instead that the app had been blocked because of piracy! As he notes, the folks making the decisions at WNYC apparently are wholly unfamiliar with the ruling in the Betamax case that says that time-shifting is legal. It's why VCRs and DVRs are legal. There's no reason why streaming audio shouldn't be legal as well.
After complaining about this publicly, WNYC (actually, the "donor's office") contacted him to clarify. They said that they weren't accusing him of piracy, but that their streaming provider said that app was used for piracy, and that's why it was blocked. Still, they argued that time shifting is "piracy"... but only if done online.
She agreed that if I used a tape recorder, or a digital recorder, to store the over-the-air broadcast, I could listen to it later, pause, rewind, etc. But she said when it went over the Internet it was different. I brought up the TiVo example, and she responded that video-on-demand programs often disallow fast-forwarding. "It's a whole new world," she said.
It's not "a whole new world," in the way she thinks. There is no requirement that a DVR disable things like fast-forwarding. There is certainly no reason for them to disable this use. It's not "piracy." They're broadcasting this free over the air, and this is just someone recording the legitimate stream. All of that is perfectly legal. The only reason to break the ability to do this is to piss off legitimate listeners.
Of course, even if WNYC officials are totally wrong about this, it's really not that surprising. In a world of copyright maximalism, where we're continually taught about "ownership" of ideas and content, even where it doesn't make sense, some people almost have an instinctual reaction to think that any use like this must be "illegal" somehow. It is not, and it's a shame that WNYC seems to be sticking to this bogus explanation. Of course, I also wonder why WNYC thinks of services like dar.fm, which appears to offer up a bunch of WNYC shows for time shifting.
The whole thing remains pretty silly, of course. Time shifting is legal. An operation like WNYC shouldn't just be fine with it, it should encourage it because it makes their shows more valuable, meaning more people will listen -- and more people will be interested in donating and supporting what they do. It's a shame that they clearly haven't thought this through and simply jumped to the false conclusion that this was some sort of evil piracy.
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Just Because It's Now Cheaper And Easier To Spy On Everyone All The Time, Doesn't Mean Governments Should Do It
Monday, April 09, 2012 5:35 PM
Rick Falkvinge has another of his fascinating posts up on his Web site, but this one's slightly different from his usual insights into the dysfunctional nature of copyright and patents. It concerns some little-known (to me, at least) history of how Sweden went from being a beacon of freedom to a country under comprehensive surveillance.
As Falkvinge explains, things began with what seemed at the time a very minor matter:
the FRA [a Swedish security agency] had used a loophole in the law since 1976 that allowed it (maybe) to wiretap all phonecalls that were routed over satellites, by erecting their own receiver dishes next to the telco ones. This allowed them to receive all the satellite signals, in identical copies to what the intended receiver dish did. The law they used to justify this behavior was one that said that privacy cannot be expected over radio waves, and that anybody may listen to anything sent over radio -- which makes sense with shortwave-type radio amateur equipment, but not necessarily with satellite links: when you pick up the phone, you expect privacy, regardless of the technical route of the phonecall.
The key thing to note here is that there is a distinction being made between the vast majority of phone calls, and the special class of phone calls made over satellites. That meant that this was not a general spying capability, but a very limited one that only affected a class of users. Falkvinge goes on:
Fiber optics in the ground gradually replaced satellites as the preferred method of transmission, and the FRA complained to the administrative departments that it had lost its ability to wiretap, and wanted an amendment to the law that would -- in their own words -- just "compensate for technical developments".
So the logic here is that the security services were beginning to lose a very limited capability for spying on a special class of user. But note what it demanded as a consequence:
What they asked for was a requirement for every owner of fiberoptics crossing the border to send a mandatory realtime traffic copy to the FRA. They demanded to wiretap everybody, all the time, if your phonecall or internet traffic happened to cross one of these checkpoints (which you can’t tell if it does or not).
So the FRA went from "using a possible loophole in the law to eavesdrop on satellites" to "demanding exactly everything all the time". This was a little bit more than just an update for technical progress; this was a huge difference in scale and a near-complete abolition of the right to privacy.
The key trick employed here was to claim that the change was just to "compensate for technical developments", and that there was some kind of equivalence between the eavesdropping on phone calls via satellites and those made via fiber optics. And it's true that fiber optics largely took over from satellites, but that does not make them equivalent. They are quite different technologies, and spying on one is not the same as spying on the other -- this was not truly about "preserving" a limited spying capability, it was taking advantage of the fact that it was now possible to spy on everyone in the same way, thanks to new technology.
Significantly, this is exactly the same argument that the UK government is making with what it calls its "Communications Capabilities Development Programme" (pdf):
Communications data -- information such as who called whom and at what time -- is vital to law enforcement, especially when dealing with organised crime gangs, paedophile rings and terrorist groups. It has played a role in every major Security Service counter-terrorism operation and in 95 per cent of all serious organised crime investigations. Communications data can and is regularly used by the Crown Prosecution Service as evidence in court.
But communications technology is changing fast, and criminals and terrorists are increasingly moving away from landline and mobile telephones to communications on the internet, including voice over internet services, like Skype, and instant messaging services. Data from these technologies is not as accessible as data from older communications systems which means the police and Security Service are finding it increasingly hard to investigate very serious criminality and terrorism. We estimate that we are now only able to access some
75% of the total communications data generated in this country, compared with 90% in 2006. Given the pace of technological change, the rate of degradation could increase, making our future capability very uncertain.
That is why, in the Government’s Strategic Defense and Security Review, published in 2010, we said we would "introduce a programme to preserve the ability of the security, intelligence and law enforcement agencies to obtain data and to intercept communications within the appropriate legal framework."
Notice this is couched in terms of "preserving the ability" of security agencies to spy just as they did in the past. In other words, the UK government would have us believe that this is simply preserving the status quo. But as in Sweden, that's not the case here:
We therefore propose to require internet companies to collect and store certain additional information, like who an individual has contacted and when, which they may not collect at present. The information will show the context -- but not the content -- of communications. So we will have for internet-based communications what we already have for mobile and landline telephone calls.
It's still not entirely clear what the UK government wants to gather -- it has been understandably evasive on this front -- but it would seem to include things like recipients of emails, Skype contacts and addresses of Web sites visited (possibly even full URLs, which will point to very specific content.) But the details don't really matter, because this is actually a question of principle.
The UK government, like the Swedish government before it, is trying to set up a false equivalence between monitoring communications before the Internet became a mass medium, and after. But the intrusiveness of such surveillance before the Internet, and before computing power was available to analyze the data gathered, was limited. Back then, working out the network of contacts of a person of interest could be done, but with effort, and at some cost. This ensured that only the potentially most serious threats were investigated.
But once again, Moore's Law has changed everything. What the UK government wishes to gather would allow the entire social graph of everyone in the UK to be calculated in near real-time. It would mean that their every move online could be watched as it happened, and cross-referenced with their past communications history. As Falkvinge points out in another recent post, what has really changed is not so much the ability to spy, but the cost of doing so.
Today, thanks to our networked lives and the plummeting cost of hardware, national governments can monitor everything we do online for the same outlay as the much more limited surveillance of yesteryear. So what is really being preserved is not some supposedly circumscribed spying capability, but the orders-of-magnitude cost. By keeping that cost constant, governments can increase the scope of their spying hugely.
But just because the technology makes it possible, and the economics makes it feasible, doesn't mean governments ought to go ahead and do it. They may claim that they are simply "compensating for technical developments", but really they are trying to exploit those developments to go way beyond what was agreed before as socially acceptable, and to do so without any consultation on how much online surveillance should be permitted in a free society.
And as to the UK government's argument that "we are now only able to access some 75% of the total communications data generated in this country, compared with 90% in 2006", this conveniently skates over the fact that the quantity of such communications data has probably doubled in that time, since IP traffic is currently growing at around 32% annually: in absolute terms, more data is available than ever. This is not about preserving capabilities in order to stand still, it's about running ever faster into a world of total surveillance.
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