Zizibaluba

I already wrote about my response to Michael Carrier's paper on the "Untold Story" of copyright and innovation, in which he talked to entrepreneurs, venture capitalists and music industry insiders to explore how new technologies and services were stifled in the wake of the RIAA's successful legal campaign in the late 90s to shut down Napster. I wanted to discuss the two other responses that the Wisconsin Law Review published, focusing mainly on the RIAA's response, penned by the General Counsel of the RIAA, Steven Marks, entitled Debunking the "Stifling Innovation" Myth: The Music Business's Successful Transition to Digital. Just the fact that they had a lawyer discussing how successful they were at business and innovation should already tell you there's a problem here, of course.

Basically, the paper tries to paint a rosy picture, rewriting history left and right -- where the labels were dragged kicking and screaming very, very, very slowly into the future by various tech services, often having to fight expensive and damaging legal battles. The RIAA describes this as a "success" story, one "of vigorous licensing of new models by large and small record labels, large investments in music services and related technology, and a vibrant digital market that dwarfs the growth in other media industries."

This is kind of hilarious if you actually lived through any of this. Every new service got threatened or sued. The "authorized" services from the RIAA were purposely designed to be awful, expensive and fragmented. Yes, the music industry has moved forward, by inches, over the past 15 years, but never willingly and never with the kind of speed and embracing of innovation that was necessary. Marks also, somewhat ridiculously, pretends that Carrier ignores the content side of the equation. He did not. He repeatedly made it clear from the various interviews that everyone understood the importance of content, which is why they all desperately wanted the recording industry to move forward with them, which it resisted at every turn.

Professor Carrier also mischaracterizes the relationship between technology and copyright. Professor Carrier inappropriately pits copyright against innovation as though the two are boxers sparring for control rather than partners that work collaboratively and interdependently. The desire of consumers to listen to music has been a driving force for technology and recording companies to build and invest in new platforms and configurations, from vinyl record players to cassette players to CD players to iPods.

The only mischaracterization here is from Marks. Carrier (and the people he speaks to) are pretty clear that the innovators wanted to work with content creators. It's just that the RIAA and its labels did everything they could to make that impossible. Yes, eventually walls were broken down, but way later than was reasonable. The industry refused to license digital music at all for years. It put restrictive DRM on it that made it less valuable. It sued left and right and scared innovators and investors entirely out of the market. It had no interest in actually working with innovators. All it wanted was massive upfront payments.

In the end, though, the crux of the RIAA's argument entirely misses the point of Carrier's piece. It basically says "look, there are lots of services today, what are you complaining about?" But the point was never that killing Napster stopped innovation, but rather that it hindered the pace and nature of that innovation. And the RIAA doesn't address it at all. There's a difference between the direction of change and the rate of change, and the key point is the rate of change, but all the RIAA wants to discuss is the direction, which is meaningless. Innovation can't be denied forever, so of course the direction will move forward. What Carrier's piece discussed, quite clearly, was the pace -- and the RIAA wants to avoid that, and pretend that everything that happened between 15 years ago and now didn't happen to get here. If we were at the point we're at today in 2003, they might have a point. The fact that it's taken us this long and we're still just reinventing radio... well, we've got a long way to go and should have been much further along.

The final response to Carrier's paper comes from law professor Randy Picker, who generally is a pretty strong supporter of copyright. His paper is called Copyright and Innovation: Deja Vu All Over Again, which basically argues that, yes, tech and innovation are in conflict, but because Carrier's paper doesn't suggest any reasonable solutions, it adds little of value.

The real question is not whether copyright matters for innovation; the entire history of copyright and distribution technology suggests that it does. Instead, we need to focus on a more nuanced way in which particular copyright settings can matter for innovation. “The Untold Story” does very little of that. So the article is critical of the efforts of music industry incumbents to protect their positions through litigation and also critical of possible reforms to copyright suggested by academics (including by me). But the article does not really say much about how one would write a copyright statute with distribution innovation in mind.

Notice some built-in assumptions, which may not actually be true. Either way, he looks specifically at three areas of copyright law that are often criticized: duration, secondary liability and statutory licenses. He points out that duration is mostly meaningless, since so much infringement is recent material. On the other two points, he admits that they create uncertainty for businesses, but then suggests that existing rules on both have been set to favor innovation:

The critical question here is how we should calibrate the tradeoffs between copyright enforcement and open-ended innovation. Both Sony’s test and the DMCA safe harbors tilt in favor of innovation and sacrifice the enforcement of copyright. Defenders of those regimes often focus on precisely the way in which the safe harbors enable innovation. The classic vision of Silicon Valley innovation is two guys in a garage, not two guys with their lawyer. Critics of those regimes, and “The Untold Story” points to this work, want more tailored rules to better balance protection of copyrights and innovation, but the discussion is precisely about that tradeoff and the relationship between innovation and copyright has not been lost on anybody participating in that discussion.

Of course, it's not clear that it's actually a tradeoff at all. This assumes that "greater enforcement" actually leads to some noticeable benefit -- and we've seen little evidence to support that (at least in any long term manner). On the other hand what we have seen -- which Picker totally ignores -- is that when innovation occurs it tends to massively expand the markets for the creators themselves. The point I've made repeatedly is that a mere four years after Jack Valenti said that the VCR would be the "Boston strangler" to the movie industry, the home video market was making more money than the box office.

These aren't "tradeoffs." These are maxima reductions. They're removing efficiency from the system to protect an inefficient, legacy way of doing business. That doesn't help expand the market. True innovation creates a bigger pie. It may be challenging at first, because people haven't totally figured it out, but it's not about one party losing and one winning. This isn't a zero sum game, like many seem to think. The "tradeoffs" are between a smaller pie and a bigger one, and Picker seems to be upset if the law favors a bigger pie. I can't see how that makes any sense from an economic standpoint.

Not surprisingly, I don't find either of these responses particularly compelling or convincing. They're arguing things based on claims without a basis, and ignoring reality. What Carrier's paper did so well was bring actual reality into the picture: the stories of entrepreneurs and investors whose innovation was chilled or stopped. The RIAA can pretend it didn't happen and Picker can pretend that it doesn't matter, but basic history and economics say that both are not true.

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You might have hoped that the extensive discussions that took place around SOPA a year or so ago would have warned off governments elsewhere from replicating some of the really bad ideas there, like DNS blocking, but it seems that Taiwan didn't get the message, as Global Voices reports:

The Taiwan Intellectual Property Office (IPO) has recently proposed to amend the Copyright Act and provide legal justification of IP and DNS blocking at the Internet Service Providers (ISPs) level through a black list system. The government claims that the amendment is to stop the illegal sharing of copyright movies and music.

Although IPO has stressed that the Internet service providers will only block overseas online platforms which are "specifically designed for copyright infringement activities" or websites which have "obviously violated copyrights", such as Megaupload, the authorities will target online platforms that enhance peer-to-peer transmission including Bit Torrent, Foxy, and FTP sharing.

Of course, as Techdirt readers know, there is no such thing as "obviously violated copyrights" -- that's what judges are for. The idea of of targeting technologies like BitTorrent and FTP is nothing less than an attack on aspects of the Internet itself. And as the article points out, the new powers are almost certain to be abused:

If the Taiwanese copyright amendment is implemented, the Island will have a mechanism that blocks and filters away "illegal websites" that host material that infringes copyright laws. This could be detrimental to sites like YouTube, where users regularly upload videos that may violate copyright laws. Although the company has a system for removing these videos, a law like this could lead to the site being blocked altogether.

The new measures will move Taiwan closer to China's Great Firewall in terms of censorship, and will therefore probably be well-received on the mainland as a result. But there are surely better ways of improving relations between the two countries than instituting these kind of measures that won't stop people sharing unauthorized copies online, but will damage the Internet, and not just in Taiwan.

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Focus Groups. You’ve seen them on TV: a guy asks “regular” people to come into a room with a two-way mirror and sample a product or give opinions on some advertising. Maybe you’ve even done one.

I’ve done more of them. I promise. Beer. Chocolate. Cable TV. Shaving cream. You’ve eaten, seen or touched it? I probably helped market it and made a couple hundred bucks doing so. I keep getting this easy money because I used to work on the other side of that two-way mirror and know all the secrets. Now you can too. They’re great supplemental income for the young, artistic spirit.

First of all, you have to get on their lists. I started by hunting Craigslist. There are plenty of legitimate focus groups recruiting on there. If you are nervous, you can always ask for their company name and website. And even if you don’t get selected for that group, the company will keep your contact info for the next one.

Second, Google “focus groups.” These people are desperate for new people to test their products. Sign up for a few of them and wait for the invitations to roll in.

Next, realize that the people recruiting you are NOT the people who own the product. Let’s say Pepsi wants to test a new soda. They will hire a company that does focus groups for a living. These people are not Pepsi employees. These people are low-wage people paid to fill a room with people who say they like soft drinks. That’s it. So they call hundreds of people with a list of questions, given to them by Pepsi, to see if you qualify. If they contact you, they WANT you to qualify for the study. Desperately. The sooner they get that room filled, the sooner they get their flat fee from Pepsi.

So when they ask you questions to see if you qualify, pretend you are in their shoes. They can’t lie on their form and can’t speak for you but, if given an opportunity, they will likely help you answer correctly to fill their quota. So if you are unsure of a question, waffle. Take your time and say you are “both” options and see if they give you a nudge.

First questions are always the same: “Have you or any of your family or friends worked in the following industries?” Always say “no” to this question. They want to make sure you aren’t in marketing or their specific business. But listen to those other options because they can’t tell you specifically whom the focus group is for. But if they say, “Have you ever worked for a marketing company or a soft drink company?” you have a good sense that this is for soft drinks. Alternatively, if they don’t mention soft drinks but mention “a bank or financial institution” then you can assume the following questions will be about banking. Remember that.

They may ask you if have been in a focus group ever (or in the past six months). Always say “no.” They will never check and don’t want to check.

And the remaining questions are pretty easy to get through. When asked if you eat or drink a certain beverage, always say “yes.” If asked when you last tried it, they often give you multiple choices. Always pick the most recent (“in the past six weeks” or whatever). And if given a scale of 1 to 10, always do the “10.” You LOVE products!

Now, they start broad then narrow down. So they might ask if you’ve eaten granola bars recently (you say “yes”) and soft drinks (also “yes”). But then the next question will be something like: “You say you’ve had soft drinks in the past couple weeks…” This is your signal that the group and following questions will be on soft drinks. You can ignore or say “no” to other food groups.

Education and income are impossible to verify so say you graduated a four year college and make at least $75,000.

They also always ask you, “How open are you to trying new products?” This is a no-brainer. You are VERY open.

And they’ll ask if you are comfortable sharing your views and opinions. Are you shy or are you outgoing? You are VERY comfortable sharing and you are, coincidentally, very outgoing. Even if you aren’t, once you are in the room, it won’t matter.

Finally, the last question is usually something open ended. “If you could have dinner with one person, living or blah blah blah.” There is no wrong answer for this question and it has no bearing on the product. This is simply a tool they use to see if you are articulate and expressive. So you can say whatever you want, but use a big word or two, and talk more than less. This person only needs to check off “this respondent can speak coherently.” Just ramble a bit.

Good luck and have fun with your new money.

You should like Thought Catalog on Facebook here.

To reduce unauthorized downloading, content producers should make their products widely available and take away the incentive for people to pirate.

The above is an argument often heard in defense of piracy. In theory it makes sense, but when Netflix released the entire season of the revived cult series Arrested Development this Sunday, something strange happened.

Tens of thousands of pirates lined up to grab a copy from various torrent sites. Many came from the U.S. and other countries where people only have to sign up for a free Netflix account to watch the show.

TorrentFreak tracked the download numbers for the various episodes and season bundles and found some interesting results.

During the first two days, episode one of Arrested Development topped 175,000 downloads on public BitTorrent trackers. A decent number, but one that pales in comparison to records set by Game of Thrones and other hit series.

Unfortunately the download figures by themselves are meaningless without context, so it’s hard to draw conclusions on how the Netflix release affected them. From past experience, however, it is safe to say that the numbers would be significantly higher if a show had been released on a premium cable network.

After all, in countries where Netflix is available people have little reason to pirate the show. Or do they?

Looking at a sample of the geographical locations of the pirates we see that the United States comes out on top with 18%. Other countries where Netflix is available, such as Canada (11.8%), United Kingdom (5.6%) and Sweden (3.5%) are also high on the list. In fact, Australia is the only non-Netflix country in the top five.

sample N=2,712

#	Country	%	City	%
torrentfreak.com
1	United States	18.0%	Melbourne	4.2%
2	Australia	15.0%	London	2.6%
3	Canada	11.8%	Perth	2.2%
4	United Kingdom	5.9%	Stockholm	2.0%
5	Sweden	3.5%	Sydney	1.9%
6	India	2.7%	Brisbane	1.5%
8	Norway	2.6%	Toronto	1.4%
9	South Africa	2.5%	Cape Town	1.3%
10	France	2.0%	Auckland	1.2%

While it’s easy to conclude that this proves that these “pirates” are just cheap thieves, the reality is a bit more complicated. For one, it could be that the download numbers would have been exponentially higher if Arrested Development hadn’t been made so widely available.

On the other hand, it also appears that not all of those who choose to pirate Arrested Development do so because they are unwilling to pay for a Netflix subscription.

Looking at the comment section of a popular TV-tracker there are plenty of comments on the issue. One downloader comes in with the stereotypical response, saying that he just “wasted” $8 on a Netflix subscription. However, there are many who disagree with this view.

One commenter notes:

“I certainly don’t see it as wasted. I’m fully supportive of Netflix for what they are trying to achieve. They’ll have my $8 regardless of whether I use it or not.”

Another one adds:

“You didn’t waste $8, you proved that Arrested Development was worth funding for a fourth season. And you got to see it slightly sooner, which is totally worth it.”

The above comments are among many suggesting that even those who have a Netflix subscription may still download the episodes through BitTorrent sites.

In part this is out of habit as that is how many people have enjoyed TV-shows for many years. The comment below from a Swedish downloader shows that pirate habits are sometimes fueled by unusual situations.

“I have a Swedish Netflix account, but for some stupid reason the PS3 app won’t let me turn the subtitles off. I can choose between Swedish, Finnish etc subtitles but there’s no option to turn them off completely. So here I am downloading the episodes, even though I have Netflix, just to watch without subtitles.”

Of course there are also many downloaders who turn to unauthorized sources because Netflix is not available in their country, as is the case in Australia, which has the highest piracy rate per capita.

In an open letter, the Australian consumer advocacy organization Choice recently asked Netflix to open up shop down under, so Aussie fans can watch their shows legally. Netflix is receptive to these comments and told PaidContent that it’s “busily expanding” into new markets.

According to one commenter on a torrent site, the potential for new customers is certainly there.

“I would have paid for a month if they were available in my country just to show appreciation for Arrested Development and their great business model but hey…”

The above lays out some of the challenges faced today by TV-producers old and new. There is a huge demand for TV content but at the same time people’s viewing habits are rapidly changing.

All in all Netflix has to be applauded for their efforts to innovate. The lack of windowing and on-demand availability will certainly have an impact on piracy rates, although it may take a while for some to convert, even those who already pay for Netflix.

If the conditions are right, however, old patterns will eventually change.

Source: Arrested Development Pirates Skip Netflix Out of Habit

With the general public not being heavily invested in the nuances of copyright, you expect mistakes to be made, but the idea/expression dichotomy is fairly central to the entire copyright endeavor. Given that, I have come to expect anyone who throws around legal threats and/or DMCA notices to at least know what the hell they're talking about. I don't think it's too much to ask someone, who can potentially erase the work of others, to use that power judiciously, yet problems persist. For example, there was the time when two major networks butted heads over the basic concepts of reality television. And it stands to reason that if two major broadcast entities with gobs of lawyers chomping at the proverbial bit can't get the basics right, then you can expect similar problems with individuals.

Serving as an example, we have Shawn Cheek, YouTube piano teacher, who has claimed copyright on a teaching method consisting of writing out the letters for notes on their associated piano keys. Beyond just his laughably annoying claim, he's apparently been going on the offensive against other YouTube piano teachers.

He has apparently convinced Mark de Heide, the 23-year-old creator of PGN Piano lessons, to take down all of his videos that display the letters of notes above the keyboard (e.g. a visual display of "C, D, E, C," for frere jacques). Mark took the bait, and stated in a video he's removed all of his YouTube lesson videos that contain the fundamental piano practice technique. He also worried about YouTube taking action over the lessons he recording [sic] teaching pop hits.

It's bad enough when legitimate copyrights are used to hinder broad instructional methods and information, but when the claim is blatantly one that cannot be copyrighted, it's down right infuriating. Cheek is reported to have a series of DVDs using this "innovative," write-stuff-on-the-keys method -- and those DVDs, i.e. the actual expression, certainly can be copyrighted, but the teaching method is an idea. It can't be copyrighted. Yet now, thanks to the aggressive ownership culture that has resulted from a reaching and complex copyright law, all of de Heide's videos have been removed. He isn't even challenging their removal. Why? Well, because he doesn't really know how copyright works either, but he does know that he's afraid of the legal repercussions that might result. Those videos, by the way, had millions of views and were quite popular. It's very likely that de Heide was making his living in part from those videos.

The only encouraging part of this story is the YouTube comments to de Heide, in which commenters actually displayed a decent knowledge of the idea/expression dichotomy. For instance, one user stated:

"What Shawn has protected is the recordings of his performance (in other words the recordings of Shawn instructing people how to play songs in his DVDS and etc.). You would infringe his copyright by making, copying, uploading, distributing, or many [sic] available copies of his recordings to the public without his permission. I recommend you discuss the following discussion points with your lawyer."

If the ultimate result of aggressive and misused intellectual property laws is a better informed public that not only knows the law, but also can recognize its intrinsic abuses, then so much the better. Until that pivotal point is reached, however, we'll have to hear about piano teachers not being able to write letters on keys.

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The Ore to Kudo not so official podcast makes it's great debut with a questionable analysis of Spring 2013 anime.

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Early 2012 UK telecoms regulator Ofcom commissioned research designed to track consumer behavior and attitudes towards the legal and illegal consumption of copyrighted material.

The research targeted Internet users over 12 years old with the aim of gathering information on the way they consume movies, music, TV shows, video games, software and books to assist with copyright enforcement policy making. The results are now in and they interesting to say the least.

The researchers split infringers into several categories according to their attitudes and motivations.

So-called ‘Justifying Infringers’ were the group who demonstrated the highest levels of infringing behavior. This group accounted for 9% of all infringers, 24% of total infringed volume and 2% of total digital consumers. They felt that they’d already spent enough on content (the researchers say this was confirmed) but like to try before they buy. They’re also the most receptive group when it comes to considering fairly priced legal alternatives.

The ‘Digital Transgressors’ group (9% of all infringers, 22% of total infringed volume, 2% of total digital consumers) consumed more films and TV shows than the ‘Justifying Infringers’. While they showed the least remorse over their behavior, this group had the highest fear of getting caught and the researchers say they would be the most receptive to warning notices sent by ISPs.

The largest group, the ‘Free Infringers’ (42% of infringers, 35% of infringed volume, 10% of total digital consumers) lived up to their name. They all download content because its free and pay for the lowest proportion of legal content compared to the other infringers.

Ambiguous Infringers (39% of infringers, 20% of infringed volume, 9% of total digital consumers) had the lowest level of digital consumption and the highest proportion of paid and legal content. They made less attempt to justify their infringing.

“Most infringing segments found it easy to find content on the internet for free which would normally be paid, ranging from 45% for the Ambiguous Infringers to 76% for the Top 20% infringers,” the researchers note. “Among non-infringers the figures were notably lower, ranging from 28% to 45%.”

Looking at the infringers overall, the researchers made some very interesting discoveries, particularly among the most prolific.

The top 10% of infringers (who accounted for just 1.6% of all Internet users over 12) were responsible for a massive 79% of all infringed content. Pull in another 10%, to consider the top 20% of all infringers (equal to 3.2% of all Internet users over 12), and this group were responsible for 88% of all infringements.

This means that the other 80% of the total infringers accounted for just 12% of all infringements by volume.

While they are undoubtedly prolific consumers of illicit content, the Top 20% group proves to be of great value to entertainment companies. Not only does the group account for 11% of all legal content consumed, but they also spend the most.

Across all content types, the top 20% of infringers on average not only spend more than the remaining 80% of infringers, but also more than consumers who never infringe. The figures are impressive – the 20% worst infringers spent £168 over the six month monitoring period with the remaining 80% spending £105. Tailing in last place were the ‘honest’ consumers with just £54 spent, three times less than the prolific pirate group.

“For all content types there were differences in terms of payment between the two groups; the large majority (92% overall) of content consumed by the Top 20% Infringers was free. This compared to 76% among the Bottom 80% Infringers,” the researchers write. “However, because they consumed more content in total, the Top 20% purchased more ‘paid for’ digital files in absolute terms than the Bottom 80%.”

Later on in the report the researchers reveal which services – authorized and unauthorized – respondents use to access content. Even for the infringers, authorized sites such as YouTube and BBC iPlayer prove most popular as the table below shows.

Interestingly, despite being blocked in the UK during the research period, The Pirate Bay is still being used by almost a third of the top 20% of infringers. The site was used by just 9% of the bottom 80% of infringers which perhaps suggests that the more hardcore the pirate, the more likely they are to unblock a site.

So what might encourage infringers to stop accessing content illegally? As usual, pricing, availability and convenience top the list. Interestingly, fears over internet disconnections in the Top 20% group trumped fears of being sued.

The research, titled OCI Tracker Benchmark Study ‘Deep Dive’ Analysis Report, was prepared by Kantar Media for Ofcom and is available for download here. (pdf)

Source: ‘Worst’ File-Sharing Pirates Spend 300% More on Content Than ‘Honest’ Consumers

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This week at Ars brought plenty of reporting on civilization and its discontents within our "Law and Disorder" section. By far, the most bizarre and maybe surprising news was from Timothy B. Lee, who wrote Warner Brothers sued for unauthorized use of Nyan Cat and Keyboard Cat.

The two memes showed up in a recent Scribblenauts game, and it turns out not even the game's maker, Warner Brothers, guessed that they would be registered trademarks. Reader trimeta commented, "Maybe the Kellogg Company (makers of Pop-Tarts) should sue Nyan Cat...no one thinks that's a generic "breakfast bar" making up Nyan Cat's body." While the 91 downvotes on this comment suggest it might have elicited a collective eye-roll from our readers, it also makes a good point: a lot of work is derivative in some sense or another. The description of Nyan Cat as "a character with a cat's face and a body resembling a horizontal breakfast bar with pink frosting sprinkled with light red dots" shows the creators went out of their way to differentiate a character that's also commonly known as "Pop Tart Cat" from the Pop Tart brand.

"I'm just really hoping that this is done entirely out of sarcasm. If they try to start actively litigating this routinely, it will make me very, very sad," Operative Alex wrote.

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Tomorrow, the Justice Department will brief the Senate Judiciary staff on the prosecution of the late activist and Internet pioneer Aaron Swartz, who died in January. Swartz has become a lasting symbol for how the Computer Fraud and Abuse Act (CFAA) can be twisted by authorities to mete out draconian punishments and turn millions of Internet users into criminals.

Previously, Sen. John Cornyn asked pointed questions to Attorney General Eric Holder about the case in an oversight hearing of the Justice Department (DOJ). Thursday’s briefing will be an opportunity for the Judiciary Committee to ask more detailed questions and follow up on answers that Holder promised the Senators.

The briefing is closed to the public, but here are some questions we’d like to see asked:

1) At last month's hearing in front of the Senate Judiciary Committee, Senator Leahy asked Attorney General Holder whether the department would consider prohibiting CFAA prosecutions based solely on Terms of Service (ToS) violations. Holder replied "that is something we can look at."

Has the DOJ looked into changing its current policy to ensure prosecutions based solely on ToS violations don’t happen in the future? Have any official internal reviews been conducted to identify other prosecutions based on this dangerous legal theory?  Would the DOJ support legislation to update the CFAA to clarify that ToS violations aren’t a crime?

2) At last month’s hearing in front of the Senate Judiciary Committee, Sen. Cornyn asked Holder, “On what basis did the US Attorney in Massachusetts conclude that her office’s conduct was ‘appropriate?’” Attorney General Holder said that the prosecutors “were talked to; the US attorneys were talked to.”

Did the Massachusetts US Attorney’s Office or the Justice Department itself conduct an official internal review of its handling of the Aaron Swartz case? What were the findings?  Has it learned any lessons?

3) “[Senators] John Cornyn and Al Franken both wrote to DOJ earlier this year asking for information about the department's actions in the Swartz case,” Politico reported. Has DOJ answered those letters and will it release them publicly?

4) Does Holder stand by his comment made in the Senate Judiciary hearing that charging Swartz with 35 years and then offering a plea agreement of 3 months was a “good use of prosecutorial discretion”?  Can he provide further justification for that view?

5) Former and current members of the Justice Department have complained that the media kept repeating that Aaron faced up to 35 years in prison, when, in fact, he would have ultimately faced much less time, given his circumstances.

Does the Justice Department believe the media is quoting an inaccurate number? And if so, why did DOJ include it in their July 2011 press release announcing Aaron’s indictment?

6) At the last briefing it was reported that “Some congressional staffers left the briefing with the impression that prosecutors believed they needed to convict Swartz of a felony that would put him in jail for a short sentence in order to justify bringing the charges in the first place, according to two aides with knowledge of the briefing.” Was this impression true? And if it was true, what was the basis for the prosecutors’ belief?

7) It was also reported that the Guerrilla Open Access Manifesto “demonstrated Swartz's malicious intent in downloading documents on a massive scale.” Do you consider this manifesto to be expression protected by the First Amendment? While public records show Aaron distributed this manifesto, do you have proof that he wrote it?

8) Aaron Swartz previously mass-downloaded academic articles from Westlaw, a legal database, to conduct a study about sources of funding for scientific research and did not release them to the public. Besides the manifesto that was written years prior to the MIT incident and does not specifically mention JSTOR, do you have any evidence that Aaron was planning on releasing the JSTOR documents to the public?

9) Is the DOJ Inspector General aware of, or has the DOJ acted on, a letter filed by Swartz’s former attorney with the DOJ Office of Professional Responsibility complaining that the Massachusetts U.S. Attorney’s Office a) delayed the disclosure of emails relevant to the investigation and b) pressured Swartz to plead guilty with threats of inflated prison time?

Related Issues:  Computer Fraud And Abuse Act Reform
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Like many folks, I recently got the Pebble smartwatch that I ordered through Kickstarter (still the highest grossing Kickstarter project ever). I've played around with a few of the different watch face options, but hadn't noticed this until another Pebble owner (and Techdirt reader), Tim K, alerted us to the fact that a bunch of watch faces designed by the community (not Pebble itself) that had been available for free have been removed due to copyright claims, including some of the top rated, most popular watch faces. Illusion, seen as taken down below, is still the 4th most popular watch face, and was as high as the top 3 just recently (I would imagine that having it taken down will hurt its popularity). In a forum post, the creator of that watch face, and a bunch of others, notes that TokyoFlash issued the takedown request, claiming copyright infringement. That led to a (mostly ill-informed) debate on the copyright of watch faces (including the factually incorrect claim by one person that you have to enforce you copyrights in every case or you risk losing them). It also resulted in a number of people noting that they would never buy a TokyoFlash watch now because, really, who wants to support a copyright bully?

Of course, this sort of thing is not exactly unprecedented, even if it does seem ridiculous. Just last year we wrote about the Swiss Railway Service (SBB) accusing Apple of trademark and copyright infringement because of a clock face in the clock app in iOS6 that is strikingly similar to the SBB's iconic clock.

Even if these claims are legit from a legal standpoint, it seems rather silly and extreme to issue such a takedown. Sure, TokyoFlash will claim that the Pebble is a competing watch, but does anyone really think that someone who was thinking of buying a TokyoFlash watch would suddenly switch to a Pebble because of the interface? It seems likely that issuing the takedown will do more to drive potential customers away from TokyoFlash than the availability of the watch face on Pebble ever could.

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Next month, I have a law review article coming out, specifically focused on how much innovation is held back and hindered when courts rule against new and innovative technologies based on the claim that they are infringing copyrights. This goes well beyond just the technology on trial itself, but many follow-on innovators who are held back or hindered in either designing their innovations or receiving investments for those same innovations. Markham Erickson, a telecom and internet lawyer, has written up a blog post that highlights this same point in looking at the recent ruling in the Aereo caes and how important the Cablevision case was in driving the innovation that led to Aereo, and to a variety of other investments in online services, and cloud computing in particular. First, Erickson notes that both the Cablevision and Aereo rulings helped create legal symmetry such that the length of a cable should not impact whether a technology is legal or not (i.e., a remote device is treated the same as a device in or on your home), and then he talks about the wider impact of that clarity:

In reaching this conclusion, the court placed utmost importance on certain technological designs such as the use of an individual antennae and copies unique to the individual. The court also made clear that Cablevision’s holding was not confined to particular, pre-approved technologies: “[W]e see no support in Cablevision or in this court’s subsequent decisions for the Plaintiff’s argument that Cablevision’s interpretation of the Transmit clause is confined to technologies similar to the VCR.” Aereo, 2013 WL at *11.

This rejection of a technology-specific reading of Cablevision should be heartening to cloud service providers. The reliance of cloud service providers on Cablevision is hard to overstate. After the Cablevision decision, the average quarterly investment in cloud computing in the United States increased by 41 percent. By one estimate, the certainty provided by Cablevision led to an additional incremental investment in US cloud computing firms of anywhere between $728 million and $1.3 billion in the 2 and 1/2 years following the decision. As the Second Circuit observed in Aereo, “many media and technology companies have relied onCablevision as an authoritative interpretation of the Transmit Clause. One example is cloud media services, which have proliferated in recent years.”

And yet, he notes, this clarity and ability to invest and to innovate may be at risk. As we noted at the time, the stunning dissent in the Aereo case actually indicated that designing a system to be within the clear boundaries of the law as explained in the earlier case should be seen as intent to infringe. That's a rather incredible interpretation when you think about it. Following the explicit nature of the law should be seen as trying to subvert it? Talk about a way to chill innovation. If that became the law, the chilling effects on innovation would be tremendous. Not only would innovators be fearful of creating new services that might be sued for infringement, they wouldn't even know how to make sure their technologies were considered legal, due to a court system that explicitly argued that any attempt to obey the law may be seen as an attempt to subvert it!

Meanwhile, other courts seem to be attacking these basic principles, which may result in more stifling of significant innovation and investment. We've avoided covering what's now called either the "AereoKiller" or "BarryDriller" cases, because the service, which used to be known as FilmOn, seems much more focused on doing stupid promotional stunts, rather than something serious. His lawsuit against CBS, as well as changing the name of FilmOn to AereoKiller/BarryDriller, highlights the sort of focus that David seems to have. And, unfortunately, when you have someone more focused on publicity stunts and acting like a clown, rather than mounting a serious legal defense, you get bad rulings. AereoKiller is a somewhat similar service to Aereo, but may actually end up killing Aereo and a ton of other important innovations, not because it's better/more innovative, but because it's mounting a horrible defense on a similar issue, and has already lost at the district court. The impact on innovation could be huge. With a split decision and concerns about Aereo's future success, investment in key innovations, including various cloud services, may be held back, while other countries continue to invest in such companies.

It's incredible that we have a legal process, and a tool in today's copyright law, that is being actively used to scare off key investment in new innovations at a time that we should be much more focused on innovation.

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We've talked a great deal about how content creators handle derivative works in the past, be it musicians, TV/film makers, or authors. The responses are predictably varied, with some creators embracing derivatives, some abhorring them, some that draw the line on commercial use, and others that use derivatives to build even further works. The least controversial of the lot is work done by fans, of course. Few creators want to go to war with fans that love their work so much they make fan films, or write fan fiction. But what would happen if a creator not only allowed derivatives of their work, but actually made the conscious decision to build an entire platform for it themselves to encourage the practice?

Well, you'd end up with something like h2g2, otherwise known as the fan-created build of the Earth-version of the Hitchhiker's Guide To The Galaxy. They recently posted on April 28th to celebrate their 14th "birthday", congratulating the community on making the site a wonderful place for Hitchhiker fans to contribute with their own submissions. They also rightly said thanks to the book series' author, Douglas Adams, as it was Adams who started the site from the beginning.

Although h2g2.com might not yet quite be a complete guide to Life, The Universe and Everything it is a thriving online community, where Hitchhiker's fans and many other creative folks can work on The Guide and help fulfill Douglas' vision of a real-life, mostly useful, Earth Edition of his fictional Guide (not, incidentally, a real-life version of the Encyclopedia Galactica).

Today we welcome everyone, active and returning researchers, new researchers, visitors and viewers, to celebrate. Thanks to Douglas Adams, who saw a way to bring his idea of the Hitchhikers Guide to the Galaxy into an actual Guide, the Earth Edition, we have been around for 14 internet years!

Resulting in, or from, the immense popularity of the Hitchiker series, h2g2.com is hugely popular with fans. Whether the books caused the site's popularity more than the site has caused sales from the book is an unknown, but that each has an effect on the other is undeniable. The site's history is interesting and somewhat convoluted, but what is unquestioned is Adams' wish to embrace fans of the books and set them off on building their own guide of Earth. And, while ownership of the site has transitioned several times, from Adams to the BBC and so on, it is back in the hands of die-hard fans that have an allegiance to its community. Hell, the site puts out its own broadsheet newspaper.

All of this thanks to an author who wasn't misguided in seeing derivatives as a threat, but rather as a wonderful way to connect with fans, all the while pointing them back to the original works off which they were based.

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I was on a trip with my family and found myself subjected yet another time to my grandmother’s (mistimed) lectures on the dangers of premarital sex. Among the standard caveats — STI’s and unwanted pregnancy — she threw in a few other colorful ones. One that I found most bewildering is the idea that I shouldn’t have premarital sex because one of the guys before The One could be a better lay than my future hubby and I would forever be haunted by the knowledge that my beloved is bad in bed.

To this I say: sex is not the point of marriage. Some might argue that procreation is, but even so, not really, because then we would just breed people like animals, so by joining two people in an exclusive marriage, we are inherently saying that there is something more to it than reproduction. That “something more” is love, and pitching the idea that you wait until marriage to have sex fosters the dangerous idea that you get married in order to be able to finally have sex instead of getting married because you love someone. Cajoling people to wait until marriage hypes up sex to a dangerous level, making it the be-all and end-all of marriage, a practice that is supposed to be about love. Intangible, abstract, indefinable love is all that’s necessary to express itself, and to shackle love to something so material, basic, and transitory as virginity devalues the emotion it’s purporting to validate.

Those who experiment beforehand ensure that once the novelty of sex has worn off, there is still a meaningful connection besides the fantasies they have created. Passion rarely lasts, so counting on utter devotion based on never having been shared by another partner is not only possessive, it’s self-deceptive. Experimentation ensures that when people finally settle on their partners, they are doing it not only with full knowledge of how they function with that person, but also with the full knowledge of all the options that came before – the ones that they passed up to choose this one. Rather than depriving myself of knowledge to be contented with a lackluster sex life, I want to enter into matrimony with a portfolio full of experiences that I can use to learn from and teach with rather than blindly resigning myself to never knowing what else is out there.

Perhaps my grandmother was okay with settling, but as for me — well, by the time I settle down, I’ll have enjoyed enough grass to know that the one I decide on is truly the greenest, and if it isn’t yet, I’ll know exactly what to do to make it so. But more importantly, I’ll know that it isn’t so much the scenery that’s the most important — it’s whose hand you’re holding as you appreciate it together.

You should like Thought Catalog on Facebook here.

image – bark

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I love lists, don’t you? Nothing ignites my passion for knowledge the way a screen full of bullet points does. We’re all busy people, after all, and lists offer a quick, easily digestible way for us to get our essential information. Here’s how to read them.

1) Only read content in list form.

Refuse to delve into articles, essays, poems, etc. unless they are in list format. If it can’t be broken down into ten points then you don’t have time for it. There are lists out there about the top reasons that bacon is the best that are waiting for you- this in-depth report on the problem of cyber-bullying is just too long, son.

2) Remember only the first thing on the list.

This point right here? You’ll probably forget it. It’s not important, that’s why it’s here. It’s just fluff.

3) Find one bullet point you disagree with, so you can dismiss the entire list.

“Oh, I was on board with this list about why Beyonce is the bomb until they brought up the Superbowl. That sucked and this list sucks. The author does NOT know what they are talking about.”

4) Take personal offense to the list.

Like a list could accurately tell you what your favourite boy band says about you. It doesn’t even KNOW you. Was this even a scientific study? Where are the footnotes?

5) Get impatient and read only the headings

All the useful information is in there anyway. This unbolded type is just filler, trust me. Boop de boop, boop boop. (See point 2.)

6) Be incredibly moved by one point on the list.

You started out skeptical but wow, point #13 really hit home. It absolutely applies to you, so thank you, point #13, because you’d completely forgotten about that sign that you’re dating a complete asshole or that poignant Mean Girls quote.

7) Bookmark the list because it essentially changed you as a person and inspired you to make a whole bunch of life improvements and you want to remember its profound effect on you.

Then don’t look at it again until six months later when you’re cleaning up your bookmarks and feel guilty that you are not eating a single one of those superfoods.

8) Complain that everything is in list format.

Bemoan the loss of dense, thought-provoking writing. Skim through some dense, thought-provoking writing and leave a comment that says “THANK YOU for real writing, finally” so that people know that you don’t just skim lists. 

You should like Thought Catalog on Facebook here.

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When you’re on the verge of a nervous breakdown, you’re usually the only one who can help yourself. If something upsets you enough to nearly throw you over the edge, it’s not going to be a quick fix. It’s obviously not something that you can easily change, you would have done so already.

I know, it sounds absolutely impossible while you’re hurting so badly. I have been there. But I worked my way out of it. The things I most feared came to pass. And guess what… some of those situations still have not resolved themselves. But do you know why I’m okay enough to be writing this right now? Because I changed. I changed how I looked at things, and I slowly changed my mindset, and I lifted the weight off me all by myself. It is possible.

I don’t want to mislead you to thinking that I’m always happy and that I don’t struggle now and again. It would be unhealthy and abnormal if I didn’t. And honestly, anybody who tells you otherwise (or acts otherwise) is lying. We all have our crap. It’s just that when said crap is debilitating enough for you to not be able to live your life anymore, you have to do something about it.

I recommend first and foremost removing yourself from the situation, however you have to do that. Leave the room, leave the town for a day. If you’re able to go abroad for a week, go, because the first step of healing is best done from a distance. Visit friends, family, the next state, whatever will excite and bring you a sense of calm.Leaving the situation and giving yourself some space is the best thing you can initially do.

The first step in getting your life back is allowing your decidedly unchangeable circumstances to become more and more normal. Things are only strange and unknown for a little while. They eventually become just another fact of your life. I promise you will get there. I know it can be unimaginable, but just make it through today. When you get to tomorrow, you’ll just have to make it through that day. Take little steps, one at a time. You need to acknowledge how you’re feeling. You need to allow yourself to feel. If you’re bogged down with other responsibilities and having to keep up a good face, you need to remove yourself. You need space to cry.

But this away time can’t last forever. You have to rejoin your life and continue on eventually. And here’s the secret to doing so: don’t fight your feelings. Let them hit you, and then let them pass. Fill your mind with other thoughts. That is how you step back from absolutely losing it. You make other things more important in your life, and you do that by choosing, consciously at first, to think about something else. Feel what you feel, then distract yourself with something positive. This can be as simple as a song you love or spending time with friends.

For some reason, it feels like the more you dwell on the situation, the faster you can find a solution. But there is no solution. I’m sorry for the tough love but dwelling on it isn’t doing anything but making you miserable. I don’t like the phrase “move on” (probably because I’ve been told to do so too many times) so I’m just going to say you have to find more important things to make your life about. The longer you dwell will not mean the sooner you’ll find an answer. It’s just longer you spend in what is inevitably unchangeable.

You should like Thought Catalog on Facebook here.

I have a sweater that is filled with holes, in a giant Tupperware somewhere at my parents’ house, and it wasn’t originally mine. I think it was a boyfriend’s in high school, and it was one of those things that was so comfortable and special and new at the ripe old age of 16 that you didn’t mind it being three sizes too big when you wore it to class. When we broke up, I just kept wearing it — it was too comfortable, too fully adjusted to my body, to throw away. (And I felt that it would have been weird to give back, but maybe he expected me to? It’s hard to tell with these things.)

Anyway, sweaters are often collateral damage of relationships. They are big and comfy and conveniently stop carrying the scent of the person you loved when they are no longer in your life. A few turns in the washing machine, and it’s forgotten all its memory.

I have DVDs. I have tank tops from old friends. I have stuffed animals. I have relics that litter my life like a particularly disorganized museum exhibit, showing a visitor all of the people who have come into my life and then left it with enough haste to forget to ask for their things back. I still have a tube of Dr. Pepper chapstick from a friend in middle school. It’s been empty for years, but I felt weird throwing it out. Why in the world would I keep a tube of empty chapstick? I picture the first few minutes of an episode of Hoarders, where they describe the subject’s descent into living in their collection of old newspapers. Maybe I’ll drown in a tub full of empty chapstick tubes.

But I digress.

Occasionally, someone has asked for things back when they were making their exit. It’s usually an act filled with some measure of spite, a way of saying “I want to remove myself so thoroughly from your life that not even my drug store sunglasses will remain.” It’s all very scorched-earth, And I admit that, in the moment, the desired effect was achieved. I felt insulted, and indignant, and incredibly sad to have to let go of their little trinkets. Once, I pretended not to know where a guy’s mixed CD was because I wanted to keep it. I liked that CD, and felt that I had, in some way, earned it.

Maybe that’s it. Maybe you start to feel entitled to a little piece of someone when they leave because, even though what you had is ending, there was so much good between you before that shouldn’t be erased when the door closes. When I listen to that CD, or wear that sweater, I don’t even really think of that person. It feels like I’m sitting in a time capsule, in a time when things were happy and wonderful, even if I no longer associate that happiness with that particular person. Relics of a relationship or friendship are just that — little tokens of nostalgia that we can rub like a genie’s lamp to enjoy a moment of feeling safe and familiar.

We should leave each other little things here and there, even if we’re glad to be getting away, because we didn’t always feel that way. And you ultimately gave them something so much more important than your copy of a video game or your baseball cap — you gave them a part of your life. And they will always have that good little slice of you, even if you don’t confirm it with a stuffed parrot you let them keep on their bookshelf. But you should, because one day all of the pain and confusion of separation will be over, and it will be nice to look at something and remember, “I remember how happy I was when I got that, and I will be that happy again.”

You should like Thought Catalog on Facebook here.

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Dear guys in your twenties,

We have a problem. Everyone sucks. It’s common knowledge that even full-grown men are just giant children with jobs and apartments. But it’s getting ridiculous. Listen, if you’re not in college and you’re not totally relying on your parents for support, it’s time to nut up and learn how to be a man. And not just a regular man. No, let’s strive to become a bona fide gentle-man. It’s easy, I swear. Here are a few tips to make this transition into actual person-hood smoother:

1. Stop wearing hats inside. If you’re bald and wearing that stocking cap is your trademark style, eh, maybe. But otherwise, don’t wear your ball cap at the dinner table in a nice restaurant. Or a shitty restaurant, for that matter. You look like a frat boy with no class and too much of your parents money. So stop.

2. Be nice to women. And be honest with them. Don’t keep stringing that girl who’s in love with you along if you know it’s never gonna happen. It’s not nice. And if someone is just a fuck buddy, be up front about it. Don’t be rude, but make sure you’re on the same page.

3. Wear a watch. Adults wear watches, even though cellphones can tell time. They’re really the only piece of jewelry a man should be wearing and guess what, your boss or your client or your investors will notice if you’re not wearing one. And they’ll notice even more if you’re wearing a well-chosen, well-made timepiece.

4. Save. Adults save money. And invest it. Or they pay a little bit of that money to someone else so that their money will get invested wisely. The stock market is scary and confusing, but millions of people invest in stocks every year. You can too. Stop spending your entire paycheck on pot and GrubHub.

5. Learn how to behave in public. When you meet strangers. When you’re out by yourself. Behave.

6. Stop buying cheap clothes. Men do not need 37 polo shirts. Men do not need 20 pairs of pants. Men’s fashion follows only a few classic principles. Spend a little more money and buy things you can wear (and that will last) forever. H&M and Old Navy do not fall into this category.

7. On that note, stop buying crap. Ever see a truly successful and happy person with a messy apartment or workspace? Probably not. Order begets productivity and also makes finding a little tranquility easier. So pick up after yourself and stop buying clutter. You’ll be much happier and be less embarrassed to have people over.

8. Realize you are not the most important person in anyone else’s world. Only two exceptions to this one: you and your mother. Otherwise, calm down, shut up, and get to work. Nobody cares about your shit. And nobody cares if you succeed or not so you better take matters into your own hands.

That should get you started. And now, next time I see you on the subway platform I won’t have the overwhelming desire to push you onto the tracks. So that’ll be nice for us.

You should like Thought Catalog on Facebook here.

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Say you were a GOP Official in New Mexico & you’re listening to a 19 year old young woman testify in favor of raising the minimum wage.

What would you say?

Any of you correctly guess calling her a “radical bitch”? Anyone?

Because, as you can see, that is exactly what Executive Director of the Bernalillo County Republican Party in New Mexico, Steve Kush, called a 19 year old woman on Tuesday. The girl, a volunteer for labor advocacy group Working America was simply testifying in favor of raising the minimum wage before the county commission.

Apparently, simply advocating for a living wage makes you a RADICAL.

Oh, but it didn’t end there!

Apparently, you can’t advocate for a higher minimum wage for others if you are not making minimum wage yourself. Also, having a nice pair of boots automatically makes you well off. AND, she’s a girl, so Steve Kush just tunes out the words coming out of her mouth and focuses in on her looks.

Common decency to not ‘boo’ at someone speaking at a public forum? THAT’S NAZI TALK.

And finally, after numerous posts about being SO BORED and the public blowback that followed, Mr. Steve Kush issued an apology:

“[I] feel awful that I put my thumbs on the keypad of my smart phone.”

or, basically, 

“My one regret is I said these things on a public forum. Next time, I call a woman a ‘radical bitch,’ I’ll make sure it’s not on the Internet.”

Good news: we are finally seeing real progress toward improving the public's ability to access to the research we pay for. In February, we saw both a White House memorandum and the introduction of bipartisan legislation designed to promote open access to taxpayer-funded research on the federal level. Now California has stepped up to try and secure the same public access rights to state-funded research.

The bill, called the California Taxpayer Access to Publicly Funded Research Act (AB 690), would give the public access to hundreds of millions of dollars worth of research funded in whole or in part by California residents. Many universities and research institutions use state funding to conduct important studies. Too often, however, the entities in charge of publishing the results of that work refuse to make it easily available, choosing instead to block it off behind expensive paywalls, and then sell back access to the universities that conducted the research in the first place. Indeed, even the authors commonly don't have the discretion to give free access to their own students. 

Introduced by Assembly Member Brian Nestande and coauthored by Assembly Members Beth Gaines, Brian Maienschein, and Kristin Olsen, the California Taxpayer Access bill largely mimics the language of federal legislation—the Fair Access to Science and Technology Research Act (FASTR). The bill ensures that recipients of state funding submit electronic copies of their peer-reviewed research into an open access repository within twelve months of publication. Each state agency would host these articles, and the California State Library would feature a centralized online bibliography linking to them.

Like both federal initiatives, this bill isn't perfect. The bill has been amended recently to change the embargo period—or the time delay between publication and public access—from six months to twelve months. While immediate availability is ideal, this open access isn't only about free availability of scholarly research, but also the ability to reuse and build upon this scholarship without worrying about copyright infringement or other legal issues. The California Taxpayer Access bill, unfortunately, doesn't mention reuse at all.

Nonetheless, this bill is worth supporting. The University of California system currently spends over $40 million per year on scholarly journal subscriptions. Budget cuts have already forced libraries to limit the number of journals they purchase. Not only can an open access policy help offset these costs, but it also allows research institutions, educational establishments, and individuals to stay on top of the state of the art.

The Assembly is holding a hearing on the bill on May 1. If you live in California, contact your Assembly Member today and tell them to support public access to taxpayer-funded research.

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There's been a push in recent years to open access to publicly funded research. The reasoning behind the push is solid: the public is paying for this research via federal funding, therefore it should have access to what it's paid for. The resistance usually comes from journal publishers who are very concerned about their main source of revenue -- access fees (usually on the "exorbitant" side) charged to university libraries. (Most publishers also charge writers a submission fee and grant themselves control of the copyright.)

Current law says that, for NIH funded research, there's a requirement for public access once the journals have been properly "windowed" by the publishers. After 12 months of publisher exclusivity, the publications are unlocked. A few recent bills have attempted to roll this back to six months, something the publishers have greeted with cries of dismay, including the hilarious assertion that opening public access six months early would "waste taxpayers' money."

California is another state exploring cutting the current window in half and, like every other attempt, it's been greeted by opposition from publishers uninterested in a 50% gravy train reduction. This is the expected response. What's completely unexpected is hearing a university side with the publishers against its own cash-strapped libraries.

The University of California system spends nearly $40 million every year to buy access to academic journals, even though many of the articles are written, reviewed, and edited by UC professors. So you’d think the cash-strapped UC system would leap to back any effort to undermine the absurd science publishing system.

You’d think. But you’d be wrong.

Hearings into the bill were scheduled for last week, but were delayed so that the bill could be modified in order to earn the support of the University of California – the flagship higher education system in the state, and the host of millions of dollars in state-funded research.

When I first heard this I was excited. “Finally,” I thought, “UC is stepping up to the plate and taking a strong stance in support of open access.” Then I read the letter UC had sent.

Adrian Diaz, the University of California’s Legislative Director, wrote that UC was “supportive of the legislation’s intent” but would only support it if the embargo period were extended to one year, and if its own grant programs were exempted from the bill’s requirements.

UC's letter seems to have the guiding hand of a concerned publisher behind it. It asks for the "embargo" to be set at the federal level -- 12 months -- expressing "concern" about a shorter time frame and saying that matching California's with the federal standard would "help avoid confusion and promote compliance with the law."

Oddly, the thought never occurred to UC to throw its support behind the bill seeking to set the national standard to 6 months in order to "avoid confusion." In other words, UC supports what's already in place and, if things do change, it should be exempt from the requirements. The letter also expresses a more real concern.

A twelve month embargo period will also allow publishers, including small publishers and scholarly societies, to meet their needs for revenue while ensuring long-term public access to published research.

That's all well and good -- for the publishers. And this letter sides completely with the publishers, even adding a vague threat/warning that some journals may reject submissions coming from a state with only a 6-month "embargo" period. That's a rather stunning statement. It suggests that journal publishers will be more than willing to compile only the most profitable research, rather than the most pertinent or accurate.

On top of that, UC is siding against its own library system in its support of publishers.

[I]t is even more troubling that a university whose libraries are facing budget cuts every year while they try to keep up with the ever-increasing cost of journal subscriptions would cite publishers’ need for revenue as their guiding principle when judging policies related to scholarly publishing.

How can Diaz DEFEND this system?? A system in which universities fork over billions of dollars of public money every year in order to buy back access to papers researchers gave to publishers for free? A system that is bankrupting our libraries? A system that denies people access to research their tax dollars paid for?

UC's letter of support for a system that extracts $40M in fees annually from the university system for research the government paid for (and authors paid to submit) is as baffling as it is infuriating. As it stands now, the system is unsustainable for the university and yet, it makes a statement asking for the status to remain firmly quo, even as its own librarians are cutting subscriptions to keep costs manageable.

This research was paid for by the public but the publishers are primarily concerned with keeping knowledge locked up and the public at arm's length. It's disappointing (and alarming) that a major university would sympathize and support the expected publisher behavior.

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The intersection of technology and politicians is often wrought with speed bumps of silliness. But to truly see a great example of how to do technology wrong, you need only look to Missouri State Senator Brian Nieves. The story begins with an email mailing list for Nieves, which Bart Cohn of Wildwood, MO somehow found himself on. Cohn's political views are described to be about as much at odds with Nieves' as is humanly possible. Upon seeing the email, Cohn responded by asking to be removed from the mailing list and throwing the word "freak" in for good measure. Nieves, who apparently has little else to do, then began a wonderfully aggressive email exchange, beginning with:

Who are you? Is there something wrong with you? Are you incapable of communicating in a way that common, decent people do? Tell me this, how did you ever even get on MY Distribution list?

Cohn responded by again asking to be removed. The exchange went on from there. You really should click the link to get the whole thing, but the best of the lot is the last of the exchange, in which Nieves takes the opportunity to affirm his heterosexuality (um...) and insulting Cohn's intelligence.

Wow. Your communications are so thought provoking, well written, and intelligent. Perhaps you secretly want to be on my distribution list because every time you send me a message, your email is recaptured and put on my distribution list. I'm tiring of taking you off every time you email me AGAIN so unless you are in love with me or have some other sort of sick obsession with me (sorry, I'm straight as an arrow) you should probably stop emailing me so that you don't keep getting put back on the list. Should I type these instructions slower? Are you having a hard time understanding? BTW - I archive ALL questionable emails like yours in case there's ever any doubt about who got ugly first. Go back to the grade school playground where people you can successfully bully and out smart are playing cuz junior... You are way out of your league with me.

This, ladies and gentlemen, is an elected official in public office talking to one of his constituents. And thanks to the internet, those words he chose to email will live on in perpetuity. So be careful who you elect to office, because they might just be a jerk.



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BitTorrent today released folder syncing software that replicates files across multiple computers using the same peer-to-peer file sharing technology that powers BitTorrent clients.

The free BitTorrent Sync application is labeled as being in the alpha stage, so it's not necessarily ready for prime-time, but it is publicly available for download and working as advertised on my home network.

BitTorrent, Inc. (yes, there is a legitimate company behind BitTorrent) took to its blog to announce the move from a pre-alpha, private program to the publicly available alpha. Additions since the private alpha include one-way synchronization, one-time secrets for sharing files with a friend or colleague, and the ability to exclude specific files and directories.

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Since the SOPA and PIPA uproar last year the Internet has become increasingly aware of the U.S. Government’s attempts at meddling with the web.

One of the bills currently meeting resistance, after it failed to pass last year, is the Cyber Intelligence Sharing and Protection Act (CISPA). Despite public protests the bill passed the House last week, and it’s now on its way to a Senate vote.

As the title suggests the main goal of the bill is to deal with “cybersecurity,” but with a lack of definition as to what that actually entails, this term is also one of its major weaknesses.

In short, CISPA would allow companies to spy on Internet users and collect and share this data with third-party companies or Government agencies. As long as the company states that these privacy violations are needed to protect against “cybersecurity” threats, they are immune from civil and criminal liabilities.

Critics of the bill point out that it would allow companies to spy on Internet users, and with flexible definitions of cybersecurity it could potentially be used to monitor the download habits of Internet subscribers.

A wide variety of citizen rights groups are continuing with anti-CISPA actions to prevent the bill from becoming law. Starting off today, Anonymous is holding a CISPA blackout with a few hundred websites participating. Undoubtedly other protests will make headlines in the weeks to come.

In light of the above, we thought that it would be interesting to turn the tables on some of the pro-CISPA forces. How would they like it if their download habits ended up exposed? And what if everyone could see their Google searches or the websites they visit?

As it turns out, no CISPA is needed to do the above. With help from BitTorrent monitoring company Scaneye and the privacy invasive ExtremeTracking service we found plenty of information to expose.

The House

Let’s begin the search with the House of Representatives, who voted in favor of CISPA. Data from public BitTorrent trackers shows dozens of House IP-addresses linked to pirated content. Below is a small selection of the alleged downloads we found.

Interestingly, no more downloads were recorded after November last year. While Scaneye only covers a small percentage of all BitTorrent downloads, the lack of hits may be the result of a new anti-P2P policy which also blocked Spotify on the Hill.

Aside from BitTorrent data it’s also possible to search for the browsing history of House staff. Through ExtremeTracking alone we found hundreds of hits, showing browser versions, screen resolutions, visited websites and search queries. To highlight one, here’s a House IP-address searching for an adult video site.

House IPs linked to piracy

The Senate

Next up is the U.S. Senate who will soon have to decide on the fate of the cybersecurity bill.

The Senate results mimic the House findings. Again there are plenty of employees who allegedly downloaded copyright material. Copies of recent TV-shows and movies are relatively popular.

The Senate’s browsing habits also reveal some information, and show that articles about Wikileaks revelations are on the public reading list.

Senate IPs linked to piracy

The CIA

Finally we took a look at the Central Intelligence Agency (CIA), one of the organizations which will use CISPA information. Gathering intelligence on the CIA is not as hard as it sounds, since their employees use public facing IP-addresses that can be directly linked to the agency.

Again, the BitTorrent tracker data mostly turned up pirated video content that were allegedly downloaded at the CIA, with some titles nicely fitting agency’s niche. Unlike at the congressional offices, we also saw some more recent hits.

Looking at their browsing data we found only a few hits for the CIA via ExtremeTracking. However, this does include a referral from a video store selling rather perverted material.

CIA IPs linked to piracy

The above is of course no argument against CISPA. Instead, it shows how much sensitive data is already out there. The question is, do we really want companies to have the ability to spy even more?

For those who want to learn more about CISPA and what action can be taken to stop it, FFTF and EFF are required further reading.

Finally, a word of advice to anyone who doesn’t want their private browsing and download habits out in the open, including Government workers. Get a VPN while you still can, or stop using the Internet altogether.

Source: CISPA Anyone? Exposing Pirates at The U.S. Government