Gotlanning.se

So a week ago, as some of you noticed, we had Senator Ron Wyden write the "favorites of the week" post, which got an impressive reaction. And, in fact, the top two highest voted "most insightful" comments both were responses to that post, addressing Senator Wyden. First, we had mudlock who wrote: You make me want to move to Oregon, just so I can say "I voted for that guy!"

If you have more time, I think it would be great if you would do something like a Slashdot interview (although I hear the kids these days are doing reddit AMAs instead? Either or.)

Thank you for your efforts. And, coming in second was the very next comment, from Brendan offering a direct thank you to the Senator: You also stood up against these efforts in congress before others even considered it worth their time. Thanks for that.

As a Canadian, I can't really threaten any senators or reps with my vote, but I sincerely hope your consituents reward you when the time comes. Nice to see lots of people recognizing Senator Ron Wyden's contribution to fighting against bad internet policy (as well as a variety of other dangerous issues, such as abuse of the Patriot Act).

As for editor's choice, I had trouble narrowing it down to just two, so bonus time, you get three this week. First up, we've got Ima Fish discussing Hollywood's inability to recognize that it no longer drives popular culture: How could anyone seriously believe that Hollywood drives popular culture considering that most movies nowadays are either remakes or sequels.

How is it possible to drive culture forward when nearly everything you produce is from the past?! Then we've got Chosen Reject talking about how Redbox is fighting Warner Bros. and going to buy DVDs from alternative sources in order to rent out WB movies that WB doesn't want rented. Something about that seems crazy: I find this absolutely fascinating. Redbox is willing to go to court to fight WB for WB's own sake. This is like some kind of forced intervention for a suicidal person. WB wants to shoot themselves in the foot and Redbox is fighting to stop them. It's almost surreal. And, finally, on the insightful side, we've got an Anonymous Coward doing a quick stock check on the impact of ICE seizing domains of websites that were going to stream the Super Bowl today: New domain name? -Check
Wikipedia the US relations with the TLD country? -Check
48 hours left before superbowl to allow DNS propagation? -Check
Make sure to email all members the new URL? -Check

How much money did ICE waste on this again? The only thing missing from that comment is that it should be "how much taxpayer money did ICE waste..."

Okay, okay. I know what kind of week it's been. You're done with the insight... and you want to move on to the funny. We can do that for you.

Coming in first (by a decently wide margin) was also a comment from the Senator Wyden post. After one of our regular critics tried to attack Wyden, another commenter jokingly asked if that original, trollish commenter was Chris Dodd. That Anonymous Coward brilliantly destroyed that theory: He is the head of the MPAA, use of computers and the interwebs is prohibited. Coming in second, was :Lobo Santo with this gem: "Give a man a fish, feed him for a day. Teach a man to create an artificial fish scarcity, and he'll eat steak for a lifetime." -Stephen Colbert On to the editor's choice awards... and for the sake of balance (as well as my own inability to pick just two) you get three of those again. First up, TheStupidOne gives a thorough explanation for Warner Bros. to not even let people put DVDs into someone's rental queue until 28 days after the DVD has actually been released: Don't forget the saying "Absence makes the heart grow fonder." By making their movies completely inaccessible to the people that want them, WB is increasing the excitement their fans have for the movies. By not allowing them to add movies to their queue, the fans will be anxiously checking Netflix daily to see when they can add the movie they wish to watch. Many of those fans will become so excited about the movie that their money will fly out of their wallets and into WB's underground vault. At which point Scrooge McDuck will dive into the pool of cash while WB executives sip celebratory martinis and discuss which sequel to make a sequel of next. Then we have Marcus Carab responding to Jonthan Franzen's statement about how ebooks have no permannce and feel like they can be changed at any time -- unlike good, old fashioned paper, which is somehow permanent and meaningful. Maybe nobody will care about illuminated manuscripts 50 years from now, but I do ... Someone worked really hard to make the language just right, just the way they wanted it. They were so sure of it that they spent hundreds of man hours copying it out by hand and filling it with unique graphical and typographical touches. A printing plate always feels like we could lose that, change that, move the metal type around. So for a literature-crazed person like me, it's just not permanent enough. And, finally, this last comment just missed out on the number 2 spot in the funniest list, and I'm actually happy about that because ever since I saw it, I knew I wanted it to close out this week's comments post. Considering the Super Bowl is starting in just a little while, how could we not have at least one comment make the list mocking the NFL's ridiculous claims that using the term "The Super Bowl" in almost any manner, is an abuse of their trademarks. BeachBumCowboy took things to the next level: Hey Techdirt,

You are all invited to come watch the great athletic event held once a year, roughly 7 weeks before the vernal equinox, played by large athletic males of the teams representing persons who love their country, as well the unusually large persons living in the 3rd largest state of the union of former colonies located in North America. This year said contest will be be held in the capital city of the state admitted on December 11, 1816 to said union, inside the domed sports arena named after a regional manufacturer and distributor of automotive oil, additives, and lubricants.

We will be watching said contest on the large viewing apparatus designed and constructed by the leading electronics maker from the southern most country of the Korean Peninsula, with service provided by the cable provider recently separated from the large conglomerate media company with interests from magazines, to movie studies, and recently Internet providers. It should be a good time with food provided by various crispy tortilla manufacturers and fried spicy chicken wings traditionally associated with a Northeast city located along the border of the two northern most countries of North America. I dunno, he did use our brand "Techdirt" in there. That seems like infringement to me....

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Another week gone and another chance for everyone to see Techdirt through someone else's eyes. While I may not be as prosaic and prolific of a commenter as some of the regulars, I hope you find some common threads in what I found poignant this week on Techdirt.

We start with the new research report from Floor64, The Sky Is Rising. While regular readers here were not surprised at the results, my first thought was how to get big content business to read and, more importantly, understand the salient points put forth. As usual, the comments ran back and forth over the standard arguments, but for me, the one from Janis stood out as an indicator of things to come where creators are no longer required to be massively successful in order to earn something from their efforts. As for the rest of the day, we had some of the all too typical indicators that the major content studios are going to continue acting like spoiled toddlers. Color me surprised... NOT!.

Tuesday morning had an article from Glyn Moody that hit close to home. Until my division was spun off and sold late last year, I was a programmer for LexisNexis (LN is a subsidiary of Reed-Elsevier). Despite my desire for the company to prosper so I could continue to receive a paycheck, the Elsevier publishing division was always one I delighted seeing in decline. I firmly believe that, as a whole, mankind is better served through open and shared research. I, for one, hope this latest boycott and alternative publishing effort succeed. Of course, following that, we had more examples of clueless content owners and their overblown sense of entitlement.

Wednesday brought some stark reminders of just how broken our current system of government really is - especially that last one. Think about it - a Senator who is doing what he can to FIX some of the very serious problems in this country is being attacked for doing his job? We really need to get out of this "R vs. D" mentality and focus on the individual issues. If only we could get people to realize that you can agree with someone on one thing and disagree with them on everything else. Madness, I tell you!

Unfortunately, work intruded most severely on Thursday, but there were two standouts. First, I took great joy in seeing that Redbox is once again standing up to Warner Bros. and their ridiculous attempts to treat consumers like cattle. I often wonder if Hollywood will ever realize that people want to be entertained, but in a manner that fits their budget and time frame. All these machinations to alter how people spend their entertainment dollars isn't going to change that one bit. Of course, much like Chosen Reject, I find this fight fascinating and hope to see some updates down the road. On the flip side, it was distressing to see yet another politician ignoring his oath of office to defend the Constitution. Regardless of opinion or even how much of a potential jerk he could be, Josh Fox had a right to record the proceedings. This is another one that I will be trying to find some follow-up on.

Ahhh, Friday. End of the week for many and a day we spend looking forward to the weekend. First up is actually a comment from Suja where a minor replacement made for, in my opinion, a much more accurate set of statements. Next, we had Capitalist Lion Tamer warning reminding us just how close to a police state the US has become and that it's not likely to get better until it's too late. The portions noting the "War on Drugs" and the corresponding comments below reminded me of the first part of an anti-SOPA post on another blog I read: The so-called war on drugs is a joke. A sick, sad, stupid joke. It didn't get rid of drugs, it didn't reduce drug use, or drug smuggling, or drug violence, or drug related deaths. It didn't, in fact, do a damned thing. All it does is keep a lot of law enforcement types employed chasing their tails. While his language can be a bit rough around the edges, he has a rather succint way of putting things and is usually writing from personal experience. Finally, of course, what kind of a consumer would I be if I didn't at least mention the Super Bowl. It's nice to see someone speaking up about the ridiculous overreach of the NFL. Now if you'll excuse me, I have to go practice my 12oz curls and 5 yard dash (to the bathroom) for Sunday's game when I watch it on a friend's 60" flat screen.

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As we recently noted in our The Sky Is Rising study, all of the evidence shows that we're living in a time of true abundance in terms of the content world. All of the data shows this. It's really incontrovertible. And yet, we keep hearing from certain folks -- often legacy entertainment industry interests -- that somehow the content creation world is at risk. That's pretty difficult to square with reality. In fact, I think it could be argued that if the industry gets its way with some of its legal proposals that would put this amazing age of creativity at much greater risk than anything the industry is complaining about.

It seems that plenty of others are recognizing this as well. Tom sent over a great blog post by Terry Border of Bent Objects, explaining why this is the most creative time in history... and why we shouldn't take that for granted. And, of course, a big reason for such an explosion of creativity is because of the internet, and the ability to not just create, promote and distribute works, but the ability to communicate. Think about the art of writing for a minute. Think about creative, or biographical, or whatever kind of writing. Before blogging, how many people wrote any more than it took to fill the space of postcard? If it wasn't their profession, I'd say very few. Now, it seems like everyone has had a blog at one time or another. And now "micro-blogging" is in style thanks to Twitter. Not as many words you say? Right, but it's a different skill that people are learning. Very concise wording. Do people want to post boring tweets? Of course not. People spend quite a few minutes of their day trying to write interesting, humorous, or informative Tweets and Facebook updates. Small bits of creativity for sure, but add them up on a weekly basis, and it's quite a bit.

I think of all the craftspersons who have learned from each other on-line. Popular knitting blogs for instance have taken that old past-time of grandma's and made it mainstream. Before Etsy and the like, where would a person sell the scarves and hats that they made besides the occasional craft fair? I mean, a family only needs so many scarves, and then the knitting needles were put away. Communities on the web not only serve as a place to share work and ideas, but that also serve as shops to sell your product worldwide, creating a reason to make more, and to try new, crazy ideas. Kind of incredible. That's just a small clip from his longer post, which goes into much more detail. It's worth a read, and definitely pay attention to his conclusion: My contention is that these days we live in right now will be looked back on with longing, especially with various governments trying to push through laws to control the internet. If that happens, these will be the good old days, so don't take them for granted. Look around and enjoy. I think this is an incredible time to make things, and I hope it stays around for a while. Couldn't have said it better myself. And this is part of the reason why so many people are so worried about things like SOPA, PIPA, ACTA and TPP. We don't want this amazing era to go away. We just want it to get better and better.

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As Hollywood struggles to come up for breath and understand the nature of what hit them last month in the SOPA/PIPA debate, it appears they're still thinking that part of this is an "education" issue -- and if they could just tell young people how evil file sharing is that everything would be good. A whole bunch of folks have been passing on variations on the news that Paramount Pictures (owned by Viacom -- one of the major backers of SOPA/PIPA) wants to go talk to college kids. A bunch of universities received: "an overnight fedex letter from Paramount expressing the extent to which they are ‘humbled’ and ‘surprised’ by the extent of the public reaction to SOPA/PIPA and asking to come to campus to talk to faculty and students about “content theft, its challenges, and possible ways to address it." Paramount specifically asks to give a "formal presentation followed by an open discussion period or to participate in a class session." First of all, actually having open discussions would be a good first step, because that's been lacking in this whole debate. But, I'm not sure starting off that conversation by referring to copyright infringement as "content theft" is the best way to kick things off. I know that the industry has chosen "content theft" as its moral panic phrase of the year, after they realized that the people they'd unfairly branded as "pirates" had taken back that phrase and turned it to their own advantage.

Why not hold a truly open discussion in which everyone can participate and talk about ideas as to the true nature of the problem? That discussion is happening every day out there on the "wild west" of the internet, if only the folk at the studios actually wanted to join in. Perhaps if they did so, they wouldn't be so terrified of the internet.

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One of the more interesting things over the past few months is just how mainstream copyright issues have suddenly become. This point has been driven home with the news that Ruben Bolling's famous Tom the Dancing Bug comic has taken on the excessiveness of both copyright extension and enforcement with his God-man character doing tremendous damage just to enforce the copyright on a work that should be in the public domain: You can check out some of the comments that people have left under the comic as well. It's really a pretty good description of this debate in many ways. The supporters of these bills don't seem to want to listen. They don't even acknowledge that there might be collateral damage or that copyright has been expanded and stretched in ways that are absolutely ridiculous. You bring up any of that... and they're ready to dash off about some other problem.

Either way, very cool to see Bolling take on this issue, and see the issue getting more and more mainstream attention.

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Pork is one of the most commonly consumed meats worldwide. Interestingly, even though it was marketed as the "other white meat" (that slogan was retired in 2011), the USDA always referred to pork as a "red meat" on its website. Here are just a few more fascinating tidbits on pig products.

• A severe nosebleed (caused by a rare blood disorder that prevents normal blood clotting) can be stopped with a rolled up piece of salt cured pork. This salt pork remedy has actually been around for several decades -- but it doesn't work with bacon, so don't grab just any slice of deli meat. [url]
• Bacon-flavored toothpaste is available for folks who like to brush their teeth as an appetizer for breakfast. Don't swallow this stuff or use as a condiment. [url]
• The use of lard isn't too common in cooking anymore -- but who's to blame for that? Pig fat just doesn't sound as appetizing as hydrogenated vegetable oils... does it? hmm. [url]
• To discover more food-related links, check out what's floating around in StumbleUpon. [url]  

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

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When it comes to DRM, nothing is more annoying and hated than DRM that requires a constant internet connection. This DRM regularly pings a server controlled by the creator of the game in order to prove that you, the paying customer who paid money to buy the game, are not a dirty pirate. One of the loudest critiques of this type of DRM is what happens when the DRM cannot make the connection to the server. We have already seen what happens to Ubisoft games when there is an unexpected server crash. Gamers weren't too thrilled about that. Now we learn that Ubisoft is looking to give its paying customers another look into why such DRM systems are a real bad idea. Ubisoft will be taking its authentication servers down on Tuesday, February 7th for an unspecified amount of time.

While Ubisoft takes its servers down to migrate them, gamers who paid good money in order to play DRM'ed games will be unable to do so. What makes this worse is that all those pirates that this DRM was supposedly going to stop will be able to play those games all they want during the migration. This is the thanks that paying customers get. This is the thanks that fans that want to support Ubisoft in its PC gaming endeavors get for their loyalty. When it comes time for Ubisoft to go to bat for them, the fans get slapped in the face.

To top things off, Ubisoft seems to not be all that concerned with how this affects paying customers. In the announcement of the downtime, it states: We apologize to our customers for the inconvenience. This move ultimately will help us improve the maintenance of our infrastructure and deliver better uptime and greatly improved services for our customers. Hey, thanks for the sympathy. Unfortunately, Ubisoft has not apologized for the inconvenience of having to prove you are not a criminal every few seconds while playing legally purchased games. Too bad Ubisoft is not improving its services by not forcing paying customers to prove they are not dirty pirates. Ubisoft could really go above and beyond in thanking its customers but is instead continuing on the same path of DRM.

This server migration is merely an example of what happens when content creators rely on these types of DRM in their fight against piracy. This is a taste of what will happen when Ubisoft decides it is just not worth it to support these authentication servers any more. When these servers go dark permanently, all those paying customers will never legally be able to play their games again. Yet, the pirates will be able to continue playing as this DRM never stopped them to begin with.

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Every year, the USTR puts out its infamously laughable Special 301 report (as I've pointed out in the past, I've seen people in the ideologically-aligned US Copyright Office mock the Special 301 report openly -- showing that even those who support it know that it's ridiculous). The way it works is that the USTR asks for comments about what countries aren't doing enough to protect US intellectual property abroad, and then puts out a "who's been naughty" and "who's been extra extra naughty" list to publicly shame countries. It's been so ridiculous that Canada -- whose copyright law is much stricter than the US in many ways -- is frequently listed as naughty, and has officially stated that it does not consider the Special 301 process to be legitimate.

And that's because it's not legitimate. The way the process works is that the USTR takes the claims of various lobbyists and companies -- does no additional objective analysis -- and puts together its list. They do allow for open comments, and a couple years ago I submitted some comments about the mistakes in the USTR approach, and how it might be improved. Many others did similar things... and when the report came out, it was the same jumbled mess of industry talking points.

Either way, it's that time of the year again, and Public Knowledge has put up a form to let people sign on to a simple letter asking the USTR to stop its "blind reliance on rights holder assertions" and to "put industry special interest claims under closer scrutiny." If PK's letter is not to your liking, you can submit your own reasoned comments (in 2000 characters or less -- which seems pretty limiting).

For more background info, PK has a blog post explaining the Special 301 process and why you should speak up and tell the USTR to stop acting as government-certified shills for the legacy entertainment business.

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We recently pointed out that a bunch of Polish politicians wore Guy Fawkes/Anonymous masks in Parliament to protest ACTA: It appears that some politicians in Bulgaria thought that was a good idea, and have done the same thing: It's really quite fascinating how much of a meme this has become within politics. While some still like to pretend that Anonymous is just a bunch of vandalizing kids, it certainly seems that some of what Anonymous stands for is having a real impact. I still think that the DDoS attacks are dumb and do more harm than good, but it's quite fascinating to see the wider ideas of what Anonymous is fighting for percolate all the way up into politics around the globe.

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For people who still don't recognize that there's a generational shift going on when it comes to how people view attempts to regulate the internet, communications and copyright law, they might want to start paying attention. According to the folks over at the Pew Research Center, the story of SOPA was the most followed story for people under 30 -- even more than news about the Presidential election. That's probably because SOPA/PIPA had much more of a likelihood of impacting their daily lives. Either way, it's amazing to see politicians and SOPA/PIPA supporters still think that this was just a "vocal minority" complaining about the bill. Their ridiculously bad miscalculation in introducing ridiculously bad bills has now awakened a very large percentage of young people to these issues, in a way that won't just go away. Amazingly, it wasn't just people aged 20 to 30 who took an interest. The research showed that there was interest all the way down to the K-12 set as well.

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This is getting interesting. Following the growing protests about ACTA in Europe, as well as signs of US meddling, Poland's prime minister is making it clear that Poland will not ratify ACTA for the time being, leading to speculation that the EU may not actually join ACTA. Tusk's backtracking could spell the end of ACTA for the entire European Union. If Poland or any other EU member state, or the European Parliament itself, fails to ratify the document, it becomes null and void across the union. As it stands, there are already five member countries that have not even signed ACTA.

"I share the opinions of those who from the beginning said that consultations were not complete," Tusk said, according to a report in Wirtualna Polska. The 54-year-old prime minister added that a Polish rejection of ACTA is now on the table, and admitted that he had previously approached the agreement from a "20th century" perspective, due to his age.

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With the immediate threat from SOPA/PIPA on hold, people have started to turn their attention to the long-running saga of ACTA. While it was being negotiated behind closed doors, few people knew about it, and protests against it were muted. Now that it has finally emerged into the open and begins its last dash towards the finishing line of ratification, the pace of anti-ACTA activism is beginning to pick up quickly. That's especially true in Europe, where everything hinges on the result of the European Parliament's vote on the treaty later this year. If it rejects it, ACTA is dead.

First we had the dramatic resignation of the European Parliament's "rapporteur" on ACTA, then the public apology of the Slovenian Ambassador to Japan for signing ACTA last week in Japan. Individual members of the European Parliament are also coming out against ACTA, notably the Dutch MEP Marietje Schaake, who has prepared an excellent briefing document on the subject, together with several Bulgarian MEPs. But without doubt, the main focus of anti-ACTA actions so far has been in Poland.

As Techdirt has reported, the first demonstration against ACTA took place in Warsaw, and some Polish politicians donned Guy Fawkes/Anonymous masks in parliament to express their displeasure at the Polish government's signing of the treaty. Even the Polish prime minister is trying to back-pedal. Meanwhile, the Polish "No to ACTA" Facebook page has gathered nearly half a million supporters.

Clearly, something very interesting is happening at all levels of Polish society as a result of ACTA, and someone else has noticed this too. According to a translation of a report on the Polish web site gazeta.pl: "--It was around 11.00 in the morning when an employee from the US Embassy called. She was curious about the voting [on ACTA]. He has counted the votes and she thought some of the deputies were missing. Eight deputies were for, three against, four have held up. Something's wrong here, because some votes seem to be missing." -- said Mieczysław Golba from Solidarna Polska. As another Polish politician explained: "-- If the US embassy was just interested in the voting itself, it's okay with us. But questioning about party discipline is scandalous"-- says Sławomir Neumann from PO. -- "Americans should calm down a little, as such behaviour is an interference into the internal affairs of the Polish parliament. We can treat Americans as friends, but there are some borders that one shouldn't cross.We are partners, but not a parliament dependent on the Congress or the president's Obama administration." Assuming this really was someone from the US embassy checking up on the whether Polish politicians were following the party line on ACTA -- there's been no independent corroboration yet -- it does seem pretty extraordinary. Judging by the generally outraged tone of the 1100+ comments on this piece, the Poles themselves don't seem very happy either. I think we can expect to hear much more about Poland's resistance to ACTA in the coming weeks.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

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As we've noted multiple times, it appears the entertainment industry still does not recognize what kind of beast it awoke with its efforts to shove through SOPA and PIPA. While it still believes it was the "tech community" that caused those bills to be shelved, it's been ignoring that a very large segment of internet users have been activated on these issues... and they're angry and willing to be proactive. We've pointed out that lots of attention has turned towards ACTA -- and while it's late in the process, don't underestimate the power of an awful lot of pissed off people who recognize that their internet is being messed with in a way that may harm their ability to communicate.

A bunch of folks have been setting up February 11th as a global day of protest against ACTA, and if the entertainment industry thought that the anger would simmer down after the SOPA/PIPA fight, they may have miscalculated again. Just take a look at the live map showing the planned February 11th protests across Europe:
View ACTA Protests Worldwide - Brought to you by stoppacta-protest.info in a larger map In case you can't see/interact with that, here's a screenshot version: These are live, in-person protests that people are planning across Europe, and if you start clicking through, you see fairly amazing numbers of people committing to come out and protest -- even in places where you wouldn't expect huge numbers of people protesting. Take, for example, Sofia, Bulgaria where over 33,000 (!!!!) people have said they plan to show up with nearly another 10,000 listed as "maybe." Over in Valletta, Malta there are nearly 3,000 people saying they'll be there. These are not exactly protest hotbeds. As you go through the list, you realize just how widespread the opposition on ACTA is becoming -- and you wonder if the entertainment industry has any idea what it unleashed with it's terrible miscalculation with SOPA/PIPA.

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Stewart Baker, the former DHS official whose warnings about how SOPA would wreak havoc on online security were instrumental in convincing many of our elected officials that SOPA and PIPA were half-baked legislative disasters, now has a fascinating writeup for The Hollywood Reporter, trying to explain why the Republican Party turned strongly against SOPA/PIPA. We've pointed out a few times, that the different reactions by the Democrats and Republicans to the online protests threaten to cost the Democrats a generation of voters who had previously looked to them as the party that "got" the internet.

Of course, where it gets even more insightful is Baker's analysis not just of how the Democratic Party appears to have miscalculated badly the reaction to these bills, but how truly and spectacularly Hollywood has failed to understand what happened -- in part because Hollywood still thinks that it drives pop culture. The truth, however, as Baker points out, is that the internet drives popular culture these days... and on the internet, Hollywood is a big bully: The [entertainment] industry still doesn't understand its adversary. From the start, studios saw the fight over SOPA as a struggle with a bunch of other companies -- Google and Internet service providers among them -- that were hoping to profit from the Internet travails of the entertainment industry.

That turned out to be wrong. In fact, the industry is fighting what amounts to a new popular culture.

Unlike the old pop culture Hollywood dominated, this one is largely independent of the music, movie and broadcast industries. In fact, people who spend hours online instead of watching TV or going to movies will probably encounter the entertainment industry only when YouTube videos of their kids dancing to Prince or spoofing Star Wars are pulled down by Hollywood's bots, or when the RIAA threatens to sue them for their college savings, or when digital rights software makes it hard to move their stuff to a new tablet or phone.

To the entertainment industry, these episodes might seem like collateral damage in the fight to stop piracy. To the new pop culture, though, collateral damage and misuse of enforcement tools are everywhere, and they threaten everyone. The content industry has made itself into the villain. Increasingly, it looks like an occupying power, obeyed at gunpoint, despised for its ham-handed excesses and resisted from every dark corner. Unfortunately for Hollywood, as its customers migrate to the Internet, it is losing not just their money but their hearts and minds as well. There's a lot more in Baker's article about the political implications of all of this, which are worth thinking about as well, but I wanted to focus on this key point. Last week, at the Midem music industry conference, I was amazed at how many people from the legacy music business believe, 100%, that the reason SOPA/PIPA were stopped was because Google stepped up its lobbying efforts. I can't even begin to count how many conversations I had with people trying to explain to them that Google only played a small role in what happened, really jumping on the bandwagon pretty late in the game. It was a widespread group of internet users who spoke up, and that really has changed the equation. And Hollywood still can't seem to wrap its mind around that.

That may be because Hollywood was popular culture for so long. It seems to just assume that this is still the case, when there's an awful lot of evidence suggesting otherwise. And really, that explains both Hollywood's confusion in how to deal with all of this, as well as one of the reasons it's lashing out. When Hollywood no longer drives pop culture, it loses its influence, and as it loses its influence, that's going to spell trouble for its business model. The biggest threat to Hollywood's dominance isn't piracy. It's that people no longer view Hollywood as the main source of pop culture any more. Art forms often lose their popularity over time. A few years back, we pointed to a quote from Paul Oskar Kristeller that seems worth highlighting again: There were important periods in cultural history when the novel, instrumental music, or canvas painting did not exist or have any importance. On the other hand, the sonnet and the epic poem, stained glass and mosaic, fresco painting and book illumination, vase painting and tapestry, bas relief and pottery have all been "major" arts at various times and in a way they no longer are now. Gardening has lost its standing as a fine art since the eighteenth century. On the other hand, the moving picture is a good example of how new techniques may lead to modes of artistic expression for which the aestheticians of the eighteenth and nineteenth century had no place in their systems. The branches of the arts all have their rise and decline, and even their birth and death. Perhaps it's not piracy that Hollywood is fighting here. Maybe it's the industry's own cultural relevance.

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For years now, we've mocked how the NFL insists that no one can use the term "Super Bowl" in an advertisement unless they're an official sponsor of the event. That's why it's become so typical to see advertisers using "the big game" instead -- though, five years ago, the NFL even sought the trademark on "The Big Game" because so many advertisers were using it. However, Paul Levy rightly takes advertisers to task for being "weenies" and not standing up to the NFL on this. As he says: Of course, the NFL's position is nonsense -- this is a nominative use that is just as permissible as, for example, referring to the "Chicago Bulls" instead of "the two-time world champions" or "the professional basketball team from Chicago" (Judge Kozinski's example from a different era, when the Bulls mattered). Basically, the game is called the Super Bowl, and calling it that isn't trademark infringement, so long as you don't imply that you're an official sponsor or otherwise officially associated with the game. Of course, where it gets even more ridiculous is when news organizations heed the NFL's warnings over this -- such as the email Levy received from the Boston Globe (pdf) about the Super Bowl, where the term doesn't appear at all. Levy points out that it's simply ridiculous that a news organization (and a big one with plenty of lawyers who get this) would still not use "Super Bowl." Levy suggests we start calling such ridiculousness out: Instead of praising retailers who skate close to the edge, we should take a page from David Bollier’s excellent Brand Name Bullies and call them Brand Name Weenies.   Indeed, it is disappointing that a major metropolitan newspaper that belongs to an 800 pound gorilla like the New York Times Company is unwilling to defy the NFL by using the term in in its advertising.  The Times and the Globe certainly advertise their coverage of the New York Giants and the New England Patriots, also trademarked names.  If big players like the Times don’t have the cojones to stand up for bullying from the NFL, they make it harder for everybody else.  
 
In their recent book Reclaiming Fair Use, Pat Aufderheide and Peter Jaszi warn that when we refrain from exercising our fair use rights, and act as if those rights do not exist, we help create a culture in which fair use loses ground to overly aggressive copyright enforcement.  The same is true in the trademark realm.  We can only hope that when the next Superbowl rolls around, the Times and its brethren, and even the HDTV sellers, will have shed their timidity. It's the Super Bowl. Call it the Super Bowl. Just... uh... don't have too many friends over to watch it on a big screen. Because that's copyright infringement.

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A key element of the political rhetoric around SOPA/PIPA was the idea that it was about jobs, and that jobs are so critical in the current economic climate that safeguarding them overrides any other concern the Net world might have about the means being proposed to do that. But then the key question becomes: who are really more important in terms of those jobs - the copyright industries, or companies exploiting the potential of the Internet that would be harmed if the Net were hobbled by new legislation?

A timely new McKinsey report entitled "Internet matters: The Net's sweeping impact on growth, jobs, and prosperity" provides us with some independent evidence on the topic. Here are the relevant findings: The Internet is a critical element of growth. Both our macroeconomic approach and our statistical approach show that, in the mature countries we studied, the Internet accounted for 10 percent of GDP growth over the past 15 years. And its influence is expanding. Over the past five years, the Internet’s contribution to GDP growth in these countries doubled to 21 percent. The latest information (pdf) from the International Intellectual Property Alliance (IIPA) claims the GDP contribution from the "core copyright industries" in the US in the years 2007-2010 went from 6.43% to 6.36% - that is, its contribution to the overall GDP was largely unchanged over this period. So the contribution of the "core copyright industries" to GDP growth over this period was also around 6%. The "core copyright industries" are defined as follows: The core industries are those industries whose primary purpose is to create, produce, distribute or exhibit copyright materials. These industries include newspapers and periodicals, motion pictures, recorded music, radio and television broadcasting, and computer software. That is, they include software companies, some of which are doubtless active on the Internet. So the contribution of the non-Internet core copyright industries to the GDP growth from 2007-2010 was less than the 6% figure above. That compares with an overall contribution of the Internet to GDP growth in the mature countries as a whole of 21% (but over five years, not four).

So what about the jobs? Here's McKinsey again: The Internet is a powerful catalyst for job creation. Some jobs have been destroyed by the emergence of the Internet. However, a detailed analysis of the French economy showed that while the Internet has destroyed 500,000 jobs over the past 15 years, it has created 1.2 million others, a net addition of 700,000 jobs or 2.4 jobs created for every job destroyed. This conclusion is supported by McKinsey’s global SME survey, which found 2.6 jobs were created for every one destroyed. Again, the IIPA report offers some figures: the core copyright industries employed 5,496,100 workers in 2007. These workers represented 3.99% of the total U.S. workforce in 2007. By 2010, the number of core copyright employees in the United States had declined by 398,500 workers to 5,097,600. In an earlier report (pdf), the number of people employed by the core copyright industries in 2002 is given as 5.48 million – roughly the same as in 2007. That is, whether or not the numbers are really representative, there was a net decline in the workforce of the "core copyright industries", which include software and probably some Internet companies, from 2002 to 2010.

By contrast, in France, whose population is roughly a fifth of that of the US, the Internet created some 700,000 jobs net. That was from 1995, but in the early years it is likely that relatively few jobs were created by the then-new Internet, so most of those 700,000 would have been created later on - say 400,000 for the last eight years. In the US, we might expect at least a pro rata number – 2.4 million jobs. That's probably an underestimate, since the US is in the Net vanguard, but even if it's an overestimate, the figure is likely to be much better than the net loss of the core copyright industries.

If the backers of SOPA and PIPA were really as concerned about jobs as they profess to be, they would be doing everything in their power to defend the Internet so as to preserve this incredible engine of growth, not attack it. And they would be pushing the copyright industries to embrace the Internet as rapidly and completely as possible, since the McKinsey report also points out: Although the Internet has resulted in significant value shifts between sectors in the global economy, our research demonstrates that all industries have benefited from the Web. Indeed, in McKinsey’s global SME survey, we found that 75 percent of the economic impact of the Internet arises from traditional companies that don’t define themselves as pure Internet players. The businesses that have seen the greatest value creation have benefits from innovation leading to higher productivity triggered by the Internet. Sounds like a perfect solution: instead of fighting the digital revolution tooth and nail, the copyright industries could embrace it like everyone else, stop demanding to be treated like a special case, and start innovating.

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We've written about the somewhat horrifying ruling in the Richard Prince appropriation art case before. If you haven't been following the details, Prince is an appropriation artist, who takes works he finds elsewhere, and modifies and transforms them into different pieces of artwork. The law around this kind of artwork is tragically murky -- with some cases ruling that appropriation art is fair use, and some ruling otherwise. The Prince case got extra attention for a few reasons. One is that Prince is considered one of the biggest name artists around, and his works can sell for millions of dollars. The second is that this case also implicated the gallery that showed Prince's work, raising some serious questions about secondary liability for galleries, and whether or not galleries themselves must become copyright experts. Finally, the ruling suggested that Prince's artwork -- valued at a few million dollars -- might need to be destroyed..

This is the truly horrifying part. Whether or not you appreciate the work, clearly some people do like it. Personally, it's not my taste, but I'll be damned if my own personal taste (or any other third party's personal taste) should ever be the determining factor in whether or not any particular piece of art should exist.

And, yet, that's what we have here. While the case is on appeal, the NY Times recently ran a pretty good overview of the case, and highlighted why the art world is paying so much attention to it. Especially for a younger generation, building new works of art on works that came before seems totally natural. It's a good thing: “For the generation that I spend my days with, there’s not even any ideological baggage that comes along with appropriation anymore,” said Stephen Frailey, an artist whose work has used appropriation and who runs the undergraduate photography program at the School of Visual Arts in Manhattan. “They feel that once an image goes into a shared digital space, it’s just there for them to change, to elaborate on, to add to, to improve, to do whatever they want with it. They don’t see this as a subversive act. They see the Internet as a collaborative community and everything on it as raw material.”

At the same time the tools for mining and remolding those mountains of raw material are proliferating. In November a developer and a designer introduced an iPad art app called Mixel, aimed at amateurs but certain to end up in artists’ studios. It allows users to grab images from the Web or elsewhere, collage them almost effortlessly and then pass them around, social media style, for appreciation or re-mixing.

One of its creators, Khoi Vinh, a former design director of NYTimes.com, has been surprisingly frank when asked about the tsunami of copyright problems such an idea stirs up. “This is really a case of, you have to do it, try it and ask for forgiveness later,” he said to an interviewer. “Otherwise it would never get out there.” What you begin to realize is that, like the wider copyright battle, to some extent this is a "generational" thing. And I don't mean that totally as an "age" thing. There are plenty of "older" people who understand these issues (or who create works via appropriation), just as there are some younger copyright maximalists. But, in general, this does seem like a generational thing, where you have generations of people who simply find the process of building on the works of art completely natural, and those who don't.

But the part that really troubles me about these discussions is a rather simple point about fair use: if the new work does not, in any way, harm the original work, it's seems positively insane to me to think that it shouldn't be seen as fair use. This point is made by Prince's lawyers: Joshua Schiller, Mr. Prince’s appeals lawyer from the firm Boies, Schiller & Flexner, said the boundary is whether a new work of art results from the borrowing. And he argued that it was clear that Mr. Prince had made parts of Mr. Cariou’s pictures into distinctive Richard Prince works, not just copy them to pass them off as his own and deprive Mr. Cariou of his livelihood. Whether the work was successful and whether Mr. Prince’s intentions were interesting or even explainable can be left to debate. But the primary intention was to create a work of art, Mr. Schiller said, and that is the kind of creativity the law seeks to encourage.

“This is not piracy,” he said. “These are not handbags.” I'm still waiting for someone (anyone!) to give me a compelling explanation for why it's a problem in any way, shape or form, if the new work does nothing to take away from the old work. In fact, in cases like this, it's easy to argue that the new work, since it came from a much more well known and successful artist, likely drew much more attention to the original work, thereby raising that artist's profile and stature.

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Bad news about the impending police state here in America: it's already here. From the indefinite detention (without trial) of terrorism suspects both foreign and American to the escalating militarization of our nation's police forces, there's little to indicate that any level of government is willing to "walk back" the overreach of law enforcement, much of which stems from the Patriot Act's anti-terrorism aims.

The New Yorker recently published a piece on incarceration in America, highlighting some very disturbing facts about the "land of the free:" The accelerating rate of incarceration over the past few decades is just as startling as the number of people jailed: in 1980, there were about two hundred and twenty people incarcerated for every hundred thousand Americans; by 2010, the number had more than tripled, to seven hundred and thirty-one. No other country even approaches that. In the past two decades, the money that states spend on prisons has risen at six times the rate of spending on higher education.

More than half of all black men without a high-school diploma go to prison at some time in their lives. Mass incarceration on a scale almost unexampled in human history is a fundamental fact of our country today-perhaps the fundamental fact, as slavery was the fundamental fact of 1850. In truth, there are more black men in the grip of the criminal-justice system-in prison, on probation, or on parole-than were in slavery then. Over all, there are now more people under "correctional supervision" in America-more than six million-than were in the Gulag Archipelago under Stalin at its height. So, what's contributing to this continued escalation of imprisonment? (Hint: it's not an increase in violent crime. Those numbers are at their lowest level in nearly a half-century.) No, the problem is that the justice system has been put into the position of redefining "criminal activity" while simultaneously having its sentencing discretion removed by national policies: William J. Stuntz, a professor at Harvard Law School who died shortly before his masterwork, "The Collapse of American Criminal Justice," was published, last fall, is the most forceful advocate for the view that the scandal of our prisons derives from the Enlightenment-era, "procedural" nature of American justice. He runs through the immediate causes of the incarceration epidemic: the growth of post-Rockefeller drug laws, which punished minor drug offenses with major prison time; "zero tolerance" policing, which added to the group; mandatory-sentencing laws, which prevented judges from exercising judgment. Exhibit A: The War on Drugs. Nothing has been more ineffectual, for a greater period of time, than the supposed War on Drugs. This is directly linked with the other points on Stuntz's list. "Zero-tolerance" policies have taken any sort of perspective or judgment out of the hands of judges and turned possession of minor amounts of controlled substances into 30-year sentences. Zero-tolerance is creeping into other areas of life as well, evidenced by public schools punishing 4-year-old students for hugging each other ("sexual harassment") or the fact that the highest percentage of additions to sexual offender registries are teen boys between the ages of 14-16. Between the growth of zero-tolerance and the expanding definition of such terms as "cyberbullying," "sexual assault" and "terrorism," it's not likely that our nation's incarceration rate will decline any time soon.

This plays right into the hands of the beneficiaries of draconian, zero-tolerance policies: privately-owned prisons. The companies are paid by the state, and their profit depends on spending as little as possible on the prisoners and the prisons. It's hard to imagine any greater disconnect between public good and private profit: the interest of private prisons lies not in the obvious social good of having the minimum necessary number of inmates but in having as many as possible, housed as cheaply as possible. No more chilling document exists in recent American life than the 2005 annual report of the biggest of these firms, the Corrections Corporation of America. Here the company (which spends millions lobbying legislators) is obliged to caution its investors about the risk that somehow, somewhere, someone might turn off the spigot of convicted men:

Our growth is generally dependent upon our ability to obtain new contracts to develop and manage new correctional and detention facilities. . . . The demand for our facilities and services could be adversely affected by the relaxation of enforcement efforts, leniency in conviction and sentencing practices or through the decriminalization of certain activities that are currently proscribed by our criminal laws. For instance, any changes with respect to drugs and controlled substances or illegal immigration could affect the number of persons arrested, convicted, and sentenced, thereby potentially reducing demand for correctional facilities to house them. This is at least as chilling as watching our representatives blithely trampling our civil rights, perhaps even more so as you realize that there is likely some connection between mandatory sentencing and the lobbying efforts of private prisons. The enforcement arms of the US government have been pushing to criminalize more and more acts under ambiguous titles such as "cyberterrorism." There has also been little serious effort made towards scaling back either the War on Drugs or the War on Terrorism, despite all evidence pointing to minimal success in either venture.

Perhaps as a result of declining violent crime statistics, many law enforcement entities are expanding their surveillance areas with the use of spy drones. It's tough to justify budget increases if you don't have enough arrests to back up expenditures on military weapons and vehicles. The solution seems to be to cast the net wider and worry about sorting out the innocents after a few hours (or days) in lockup.

The collected legislative bodies of the United States are pitching in as well, with 40,000 new laws scheduled to go on the books in 2012 alone. While many simply deal with compliance issues or budget woes, the sheer number of new laws is bound to catch a few more "criminals," if for nothing more than a short stay for misdemeanors. Even existing laws, like the 111-year-old Lacey Act, are being used to criminalize citizens, as Gibson Guitars can attest.

In addition, immigration policies are swelling America's imprisoned ranks. ICE has detained thousands of illegal immigrants under the auspices of "detaining and deporting unauthorized immigrants who've been convicted of crimes." While it may be an admirable aim, the facts don't match up to ICE's claims (big surprise): The FOIA request for information on all immigrants in detention on Oct. 3, 2011, turned up a list of nearly 32,300. Forty percent of those held by ICE had not been convicted of a crime, nor were they awaiting criminal trial. Despite what the term "illegal immigration" implies, simply being in the country without status is a civil, not a criminal, offense.
That's about 13,000 non-criminals sitting in detention centers funded by taxpayer dollars and, in some cases, directly benefiting private corporations. With more and more politicians looking to grab voters by touting tough immigration "reform," this will only get worse.

With the expansion of federal surveillance laws and the increase of so-called "secret laws," the government is slowly turning its citizens into criminals, often with the assistance of local law enforcement. Combine this with the still-existent "Can I see your papers?" provision of the Patriot Act, in which a 100-mile area along the US borders is basically a "Constitution-free" zone, and it's easy to see why a declining prison population isn't in our future.

While we may not be at the point where police are sweeping up so-called dissidents with door-to-door raids or locking people up for political reasons, it's really hard to see this as anything more than inevitable. And at what point do you decide that it's enough of a police state to start taking action? Is everything manageable now, but let's give it a few years? Or do we decide that this has gone too far already and a rollback is needed? Even worse, it may be too late. The Patriot Act is over a decade old and no reduction in its powers has seriously been considered by our representatives. The War on Drugs has 30+ years of increasing power and no politician has actively moved towards anything more than some slight decriminalization for medicinal marijuana (which often gets re-criminalized) or has even broached the subject of ending this so-called war.

The worst part is that we're all paying for it. Our tax dollars are being used to put our friends and neighbors in prison. Our money is used to turn 14-year-old boys into sexual offenders and incarcerate large numbers of minorities. It's extracted complicity and as long as those in power continue to see no reprisal for these actions, it will continue until it's truly too late.

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While not everyone agrees with the EFF's position on various issues, the group is still pretty widely respected in legal circles. So it seems a bit odd that a copyright troll has apparently decided to spend an entire filing trying to block the EFF from filing an amicus brief ("friend of the court" brief) in one of its cases, attacking the EFF directly as some sort of "radical" and "quasi-anarchist" group. The lawsuit involves Prenda Law, who took over the cases formerly brought by divorce lawyer-turned-copyright troll John Steele. I hadn't been following it closely, but sometime last year, Steele apparently handed his practice off to Prenda -- though there have been some questions over whether or not Steele is still involved and to the legality of the transfers.

Either way, Prenda clearly does not like the EFF and basically spends the entire filing insulting the organization based on next to nothing. A few examples:

• The EFF is opposed to any effective enforcement and litigation of intellectual property law, which seeks a platform by which to advance its agenda.
• The EFF is an anti-intellectual property group, which appears in the present action merely in order to obstruct or delay Plaintiff’s copyright infringement litigation.
• The EFF’s crusade continues, despite their lack of success, not out of any concern for proper application of the law.
• The EFF Is a Radical Special-Interest Group Generally Opposed to Any Effective Or Efficient Enforcement of Intellectual Property Law
• This mission is radical, quasi-anarchist, and intrinsically opposed to any effective enforcement of intellectual property rights.
• their history of advocating lawlessness on the Internet suggests that their purpose is not to help this Court administer justice, but to hinder and obstruct the process

It also focuses on the fact that the EFF failed in one of its attempts to question whether or not joining together so many defendants was proper -- in a case presided over by a judge who had only recently joined the bench, after a stint as an RIAA lobbyist. It ignores that the EFF has won its argument that joinder is improper many more times than it has lost. Hopefully the court sees through this.

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Some people continue to insist that intellectual property and censorship are two totally separate issues, but that's ridiculous. Yet another example is in the ongoing case concerning software company Jenzabar, which we've covered before. If you're just picking this up now, one of Jenzabar's founders, Chai Ling, many years ago, was one of the student leaders of the Tiananmen Square uprising -- a point that the company regularly used in its PR efforts. A documentary film from Long Bow Productions showed Ling making some comments years ago about how she hoped the uprising would lead to bloodshed, in order to incentivize a wider uprising. Most people might write off such comments as extreme comments in the heat of the moment from a young, immature activist, and let it go. If Ling had just said that she regretted the comments, the whole thing would have probably blown over.

Instead, Ling appears to have decided to use trademark law to try to silence the filmmakers. They first tried a defamation lawsuit, and that didn't work (seeing as Ling apparently actually said what's shown in the film), and everything else was nonactionable opinion statements. So then they shifted to a clearly bogus trademark claim. The filmmakers had put up a website about the film, including one page about Jenzabar. So the company sued the filmmakers, claiming trademark infringement. This is pretty absurd of course. There's no trademark issue here. No likelihood of confusion. Even though Ling/Jenzabar claim that the page in question presents "lies," the defamation lawsuit didn't work -- this is entirely about trademark law. It seems pretty clear that Ling (and others at Jenzabar) just don't like that this info is getting out, and are trying to use trademark law to stop this form of speech.

The court sided with the producers, granting summary judgment and tossing out the case, but Jenzabar is appealing the ruling. Part of the original argument for the trademark claim was that Long Bow used the company's name in its metatags. This is silly for a variety of reasons. First, the page actually does talk about Jenzabar. Second putting a trademarked company name in metatags isn't a violation of trademark law. Third, and most importantly, metatags are almost entirely ignored by search engines -- so the claim that this impacted Google's search results seems misguided. Of course, somehow Jenzabar found an "expert witness" to insist that Google does use metatags (in combination with title tags) in determining rankings, and tried to dismiss claims from actual Google employees to the contrary as hearsay.

Now, in the appeal, Jenzabar is apparently arguing that because the Google snippet that shows with the page mentions that Jenzabar tried to censor the site, it's proof of infringement. As Paul Levy notes in talking about the case, "Will its lawyer be able to argue that with a straight face?" As is noted in Levy's filing (on behalf of Long Bow), the fact that Long Bow has made it even clearer that Jenzabar has no association with the page -- by publicly stating that the company tried to censor the page -- actually works against Jenzabar's trademark claim. It's even more evidence that there is unlikely to be any confusion by users finding Long Bow's page. Any moron in a hurry can tell that the page is not endorsed by Jenzabar. But, rather than recognizing how this hurts its own case, Jenzabar is claiming that this new tidbit of info on the page is somehow new evidence of infringement. In theory, this new listing should have met Jenzabar’s purported concern that the original search listing could confuse potential customers using Jenzabar’s name as a search term. But Jenzabar argued below, and apparently still contends on appeal, that this is an “infringing” use of its marks.... Nothing could show more clearly that this case is about suppressing public access to truthful criticism, not protecting against deception of consumers. Either way, all the facts of the case seem to suggest that this lawsuit (and further appeal) are simply about trying to silence the filmmakers by burdening them with an expensive and distracting lawsuit. That seems like a pretty clear abuse of the purpose and meaning of trademark law.

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