Slashdot Mirror

First time accepted submitter snobody writes "Recently, an article was posted on Slashdot about the claim that law enforcement made about being frustrated by their inability to decrypt messages using Apple's iMessage. However, this article on Techdirt suggests that the DEA may be spewing out disinformation. As the Techdirt article says, if you switch to a new iDevice, you still are able to access your old iMessages, suggesting that Apple has the key somewhere in the cloud. Thus, if law enforcement goes directly to Apple, they should be able to get the key."

Despite calls to limit the Computer Fraud and Abuse Act, it looks like Congress is planning to drastically expand the law and penalties. walterbyrd writes with a few of the major changes listed in the draft bill (22 pages): "Adds computer crimes as a form of racketeering. Expands the ways in which you could be guilty of the CFAA — including making you just as guilty if you plan to 'violate' the CFAA than if you actually did so. Ratchets up many of the punishments. Makes a very, very minor adjustment to limit 'exceeding authorized access.' Expands the definition of 'exceeding authorized access' in a very dangerous way. Makes it easier for the federal government to seize and forfeit anything." TechCrunch also reports rumors that the plan is to push the bill through quickly for approval with a number of other "cybersecurity" bills in mid-April.

An anonymous reader writes "We recently discussed what appeared to be a positive response from the Obama administration on the legality of cell phone unlocking. Unfortunately, the Obama administration may not be able to do anything about it. It has already signed away our rights under a trade agreement with South Korea. Lawyer Jonathan Band, who works for the Association of Research Libraries, wrote, 'The White House position, however, may be inconsistent with the U.S. proposal in the Trans-Pacific Partnership Agreement (TPP) and existing obligations in the Korea-U.S. Free Trade Agreement (KORUS) and other free trade agreements to which the United States is a party. This demonstrates the danger of including in international agreements rigid provisions that do not accommodate technological development.'You can read more about this issue in a short eight page legal primer by Jonathan Band (PDF). An interesting, related note that the U.S.-KOREA FTA is possibly inconsistent with our domestic patent/drug law in the Hatch-Waxman Act as well. The trade agreement requires us to grant injunctions until the patent is invalidated as opposed to thirty months under current domestic law."

An anonymous reader sends this Techdirt report on a welcome ruling from the 9th Circuit Court of Appeals: ""Here's a surprise ruling. For many years we've written about how troubling it is that Homeland Security agents are able to search the contents of electronic devices, such as computers and phones at the border, without any reason. The 4th Amendment only allows reasonable searches, usually with a warrant. But the general argument has long been that, when you're at the border, you're not in the country and the 4th Amendment doesn't apply. This rule has been stretched at times, including the ability to take your computer and devices into the country and search it there, while still considering it a "border search," for which the lower standards apply. Just about a month ago, we noted that Homeland Security saw no reason to change this policy. Well, now they might have to. In a somewhat surprising 9th Circuit ruling (en banc, or in front of the entire set of judges), the court ruled that the 4th Amendment does apply at the border, that agents do need to recognize there's an expectation of privacy, and cannot do a search without reason. Furthermore, they noted that merely encrypting a file with a password is not enough to trigger suspicion."

davecb writes "Prenda Law has commenced three defamation, libel and conspiracy suits against: defense lawyers, defendants and all the blogger and commentators at 'Die Troll Die' and 'Fight Copyright Trolls'. The suits, in different state courts, each attempt to identify anyone who has criticized Prenda, fine them $200,000 each for stating their opinions, and prohibit them from ever criticizing Prenda again."

Bennett Haselton writes "The U.S. government recently announced that academic papers on federally-funded research should become freely available online within one year of publication in a journal. But the real question is why academics don't simply publish most papers freely anyway. If the problem is that traditional journals have a monopoly on the kind of prestige that can only be conferred by having your paper appear in their hallowed pages, that monopoly can easily be broken, because there's no reason why open-access journals can't confer the same imprimatur of quality." Read on for the rest of Bennett's thoughts on the great free-access debate.

Around the time of the tragic suicide of Aaron Swartz, who lobbied tirelessly for free access to academic articles (in his sometimes grey-hat manner, which ultimately got him in trouble), I admitted to some friends that I didn't understand how this became a problem. Why aren't all journal articles free, all the time?

I don't mean that I didn't know why the journal publishers charged exorbitant fees for their subscriptions. If academic researchers have to have access to journal articles in order to do their jobs, then you can expect the journals to gouge academic libraries on the prices. What I didn't understand was: Why do academics even publish in journals that demand exclusive publishing rights for their work, and then charge readers huge fees to read it?

Well actually, we know the answer to that too: academics want the prestige of publishing in big-name journals that have established reputations, and as a result, those well-known journals are in a position to dictate the terms of the contract. A professor might genuinely want to publish their paper in a journal where it can be read for free by all, but they can hardly be blamed for thinking of their own career path first.

Here's the question I really wanted answered: If "prestige" only exists in the minds of other academics within a field, then why don't the academics within a given field just agree to confer "prestige" on papers published in open-access journals, if they can see for themselves that the quality is equivalent to what would be published in the old-guard journals that charge an arm and a leg? And then make hiring, promotion, and tenure decisions accordingly?

I don't mean that the papers published in an open-access journal would bypass the peer-review process, and that everyone in the field would have to judge the papers for themselves without any prior certification of their quality. One of the points that Peter Suber makes repeatedly in his book Open Access is that open access is not about skipping peer review and dumping papers directly onto the web. Rather, the process would work similarly to peer review for a traditional journal:

1. Author submits a paper to journal XYZ.

2. Journal XYZ selects one or more peer reviewers from among their list of people they consider qualified to review the paper. The peer reviewers send back their usual suggestions and some consensus is reached as to whether or not to publish.

3. If Journal XYZ publishes the paper, then they have certified that the paper passed the quality controls in step #2, and the author can now legitimately claim that they had a paper published in Journal XYZ.

4. If people in the field know that Journal XYZ is not skimping on the quality controls in step #2 — that Journal XYZ is sending the papers to the same academics who would do peer review for one of the old-guard journals, and who are holding the papers to the same standard — then they should respect the paper just as much as if it were published in a traditional journal. If a person has never heard of Journal XYZ, then it should only take a minute to explain to them how it works (and crucially, that Journal XYZ is just as strict about quality as the old-guard journals that everybody has heard of).

Each step in this process should cost the journal virtually nothing. The "hard cost," the part that consumes the time of people with unique skills, is the peer review step, but peer reviewers are usually paid by universities and consider peer review for academic journals to be part of their job description. At a minimum, all the editors really have to do is maintain the list of people they consider qualified to do the peer review, and send the submitted papers off to them.

Moreover, the entire process should be fast. Again, the "hard cost" in time is the peer review, but there's no reason that the delays between submission and publication should be in the range of months or years.

(I'm assuming that the article authors would want their writings to be widely read, or at least would not be opposed to it. That may not be the case if, for example, the authors were commissioned by a pharmaceutical company for a study that cast their drug in a favorable light, but the authors realize that their research methods contained errors and want to minimize the number of eyes on their paper, to reduce the chances of their chicanery being caught. Ben Goldacre's Bad Pharma documents these types of problems very thoroughly, but I'm sidestepping that issue for now.)

So, with that in mind as the ideal, I asked my friends, including many current and former academics, why this essentially wasn't the model that was used. Several mentioned the Public Library of Science, which publishes all articles in its journals under a Creative Commons Attribution License (free for anyone to read and reproduce in full, as long as the original author is cited), and finances its operations through publication fees. These fees are in the $2,000-$3,000 range, heavily discounted for low-income countries and authors, and in any case most academic authors pay the fees out of their research grants and not out of their own pockets. That sounded much better than the traditional model, I thought, but I still didn't understand why the costs weren't even closer to zero. Another friend pointed out that PLOS costs cover the expenses for many of their other activities — which are all noble goals, to be sure, but at the same time, why isn't anybody operating a more bare-bones model which minimizes all expenses, and charges almost nothing for publication or subscription?

This, it turns out, appears to be the approach of the PeerJ project, which aims to let authors pay a one-time fee of $99 at article submission time for the right to publish one article per year — or, if you prefer to pay only if your article is accepted for publication, you can pay $129 "on acceptance" (explained here). And the author of the Techdirt piece mentions that he submitted a paper which was published in the inaugural edition of one of PeerJ's journals, 10 weeks after the submission date. This is cheap and fast enough that I'd call it a validation of the theoretical model which predicts the whole process should be able to be done for almost no cost in almost no time. In other words, I think PeerJ will succeed, but even if it does fail, it will only be because of some anomalous business snafu, not because the hard costs of the service they're providing are greater than the dirt-cheap price they're charging for it. If for any reason PeerJ doesn't happen to get it right the first time, they or some other company should keep trying until someone makes it work.

The basic algorithm at work here — taking a piece of content, submitting it to one or more suitably qualified reviewers, and then certifying the content based on the feedback of the reviewers — is something I've advocated in many contexts over the years, for many different types of problems. In one article I argued that we could make success in the music industry into much more of a meritocracy, with far less arbitrariness in determining who succeeds and fails, if a suitably popular site like Pandora simply took new submissions from artists, had the content "rated" by a random sample of listeners interested in that type of music, and if enough of them liked it, push the content out to all of the fans of that genre. In "Crowdsourcing the Censors" I suggested that Facebook's complaint review process should use the same principle: If a given page received enough complaints, have the page contents reviewed by a random subset of Facebook users who had signed up to be "abusive content" reviewers, and then only flag the page for removal if a high enough percentage of those users voted that the page had indeed violated Facebook's guidelines. This year I argued that "We The People", the White House's online petition-drive-organizing website, should rate ideas based on what a random subset of users think of each idea, rather than allowing users to organize mobs of their friends and followers to vote their own ideas to the top of the pile (which, in case you missed it, is how 4chan gave us this). Or, if you think the general public is not qualified to rate ideas according to how they should be prioritized by the White House (and I'd be inclined to agree), you could have the ideas rated by a random subset of, say, the nation's economics professors.

Of course, I haven't heard of any plans to implement this algorithm in any of those contexts. Not that I expected the key power players to be reading my articles, but it's a little surprising that none of them ever came up with this idea independently, either. (To this day, the only website I'm aware of that ever implemented random-sample voting correctly, was HotOrNot.com, where users could rate members' pictures by attractiveness — but each picture's rating was determined by showing it to a random subset of the site's visitors. That system is gone, since the site has made itself over into a date-finding service.)

But academia in general, and science specifically, is different from other arenas in a number of key ways which could help this algorithm succeed:

• Academia, uniquely, is comprised of many professionals whose love of knowledge and intellectual inquiry, is greater than their desire for money. That's not to say that I don't think the same algorithm could work just as well in a business like the music industry, where most of the stakeholders are in it for the money. But even if Pandora did successfully implement the algorithm, it would meet a lot of resistance from entrenched interests in the music industry, who make their money by finding and promoting and managing talent and would not be happy about a new system that threatened to make them irrelevant. In academia, by contrast, it's quite plausible that even the "entrenched interests" — the people who had become superstars under the old system — would see the new system's great potential for disseminating free knowledge, and would welcome it even if it gave scrappy new upstart academics a chance to dethrone them. Not everybody in academia loves knowledge more than they love their own prestige, but I know more people like that in academia than anywhere else.

• In academia, even among people who do care primarily about their own prestige, many of them have tenure and guaranteed job security, a situation that does not exist in most other industries. This gives them the freedom to experiment with new models, such as submitting papers to upstart PeerJ journals. But more importantly for our purposes, it means they can announce that in their department's hiring and promotion decisions, they will count PeerJ-published papers as legitimate professional accomplishments, for the benefit of non-tenured faculty members who do have to worry about their resume.

• Academics, particularly in maths and sciences, are more prone to the kind of thinking that would lead a person naturally in the direction of the kind of system that PeerJ embodies. First, think of a theoretical model (like the kind I described near the beginning of the article). This model predicts that, ideally, it should be possible to publish papers at very low cost with quick turnaround times, without sacrificing peer-review quality assurance. Now, try to approximate that model as closely as possible in the real world. (In most other industries that I've worked in, there's much more inertia around the existing way of doing things, and far less willingness to entertain any discussion about whether a theoretical model can show how we could accomplish the same thing with vastly less overhead.)

And that, in the end, is the real reason journal articles should be free. Not because the U.S. government is making it a condition for taxpayer-funded research, although that is a welcome development. But because there's no part of the process that should cost very much to begin with, if article authors and peer reviewers are already being paid by their employers. The last piece of the puzzle is that enough academics and faculty departments have to agree to confer "prestige" on articles published in open-access journals, equivalent to the level of prestige that they would accord for an article published in a traditional journal of the same quality. If they won't do that, then the old-guard journals will maintain their monopoly on conferring "prestige", and don't be surprised if journal prices keep growing to the point where even Harvard can't pay for them.

Bennett Haselton writes "The U.S. government recently announced that academic papers on federally-funded research should become freely available online within one year of publication in a journal. But the real question is why academics don't simply publish most papers freely anyway. If the problem is that traditional journals have a monopoly on the kind of prestige that can only be conferred by having your paper appear in their hallowed pages, that monopoly can easily be broken, because there's no reason why open-access journals can't confer the same imprimatur of quality." Read on for the rest of Bennett's thoughts on the great free-access debate.

Around the time of the tragic suicide of Aaron Swartz, who lobbied tirelessly for free access to academic articles (in his sometimes grey-hat manner, which ultimately got him in trouble), I admitted to some friends that I didn't understand how this became a problem. Why aren't all journal articles free, all the time?

I don't mean that I didn't know why the journal publishers charged exorbitant fees for their subscriptions. If academic researchers have to have access to journal articles in order to do their jobs, then you can expect the journals to gouge academic libraries on the prices. What I didn't understand was: Why do academics even publish in journals that demand exclusive publishing rights for their work, and then charge readers huge fees to read it?

Well actually, we know the answer to that too: academics want the prestige of publishing in big-name journals that have established reputations, and as a result, those well-known journals are in a position to dictate the terms of the contract. A professor might genuinely want to publish their paper in a journal where it can be read for free by all, but they can hardly be blamed for thinking of their own career path first.

Here's the question I really wanted answered: If "prestige" only exists in the minds of other academics within a field, then why don't the academics within a given field just agree to confer "prestige" on papers published in open-access journals, if they can see for themselves that the quality is equivalent to what would be published in the old-guard journals that charge an arm and a leg? And then make hiring, promotion, and tenure decisions accordingly?

I don't mean that the papers published in an open-access journal would bypass the peer-review process, and that everyone in the field would have to judge the papers for themselves without any prior certification of their quality. One of the points that Peter Suber makes repeatedly in his book Open Access is that open access is not about skipping peer review and dumping papers directly onto the web. Rather, the process would work similarly to peer review for a traditional journal:

1. Author submits a paper to journal XYZ.

2. Journal XYZ selects one or more peer reviewers from among their list of people they consider qualified to review the paper. The peer reviewers send back their usual suggestions and some consensus is reached as to whether or not to publish.

3. If Journal XYZ publishes the paper, then they have certified that the paper passed the quality controls in step #2, and the author can now legitimately claim that they had a paper published in Journal XYZ.

4. If people in the field know that Journal XYZ is not skimping on the quality controls in step #2 — that Journal XYZ is sending the papers to the same academics who would do peer review for one of the old-guard journals, and who are holding the papers to the same standard — then they should respect the paper just as much as if it were published in a traditional journal. If a person has never heard of Journal XYZ, then it should only take a minute to explain to them how it works (and crucially, that Journal XYZ is just as strict about quality as the old-guard journals that everybody has heard of).

Each step in this process should cost the journal virtually nothing. The "hard cost," the part that consumes the time of people with unique skills, is the peer review step, but peer reviewers are usually paid by universities and consider peer review for academic journals to be part of their job description. At a minimum, all the editors really have to do is maintain the list of people they consider qualified to do the peer review, and send the submitted papers off to them.

Moreover, the entire process should be fast. Again, the "hard cost" in time is the peer review, but there's no reason that the delays between submission and publication should be in the range of months or years.

(I'm assuming that the article authors would want their writings to be widely read, or at least would not be opposed to it. That may not be the case if, for example, the authors were commissioned by a pharmaceutical company for a study that cast their drug in a favorable light, but the authors realize that their research methods contained errors and want to minimize the number of eyes on their paper, to reduce the chances of their chicanery being caught. Ben Goldacre's Bad Pharma documents these types of problems very thoroughly, but I'm sidestepping that issue for now.)

So, with that in mind as the ideal, I asked my friends, including many current and former academics, why this essentially wasn't the model that was used. Several mentioned the Public Library of Science, which publishes all articles in its journals under a Creative Commons Attribution License (free for anyone to read and reproduce in full, as long as the original author is cited), and finances its operations through publication fees. These fees are in the $2,000-$3,000 range, heavily discounted for low-income countries and authors, and in any case most academic authors pay the fees out of their research grants and not out of their own pockets. That sounded much better than the traditional model, I thought, but I still didn't understand why the costs weren't even closer to zero. Another friend pointed out that PLOS costs cover the expenses for many of their other activities — which are all noble goals, to be sure, but at the same time, why isn't anybody operating a more bare-bones model which minimizes all expenses, and charges almost nothing for publication or subscription?

This, it turns out, appears to be the approach of the PeerJ project, which aims to let authors pay a one-time fee of $99 at article submission time for the right to publish one article per year — or, if you prefer to pay only if your article is accepted for publication, you can pay $129 "on acceptance" (explained here). And the author of the Techdirt piece mentions that he submitted a paper which was published in the inaugural edition of one of PeerJ's journals, 10 weeks after the submission date. This is cheap and fast enough that I'd call it a validation of the theoretical model which predicts the whole process should be able to be done for almost no cost in almost no time. In other words, I think PeerJ will succeed, but even if it does fail, it will only be because of some anomalous business snafu, not because the hard costs of the service they're providing are greater than the dirt-cheap price they're charging for it. If for any reason PeerJ doesn't happen to get it right the first time, they or some other company should keep trying until someone makes it work.

The basic algorithm at work here — taking a piece of content, submitting it to one or more suitably qualified reviewers, and then certifying the content based on the feedback of the reviewers — is something I've advocated in many contexts over the years, for many different types of problems. In one article I argued that we could make success in the music industry into much more of a meritocracy, with far less arbitrariness in determining who succeeds and fails, if a suitably popular site like Pandora simply took new submissions from artists, had the content "rated" by a random sample of listeners interested in that type of music, and if enough of them liked it, push the content out to all of the fans of that genre. In "Crowdsourcing the Censors" I suggested that Facebook's complaint review process should use the same principle: If a given page received enough complaints, have the page contents reviewed by a random subset of Facebook users who had signed up to be "abusive content" reviewers, and then only flag the page for removal if a high enough percentage of those users voted that the page had indeed violated Facebook's guidelines. This year I argued that "We The People", the White House's online petition-drive-organizing website, should rate ideas based on what a random subset of users think of each idea, rather than allowing users to organize mobs of their friends and followers to vote their own ideas to the top of the pile (which, in case you missed it, is how 4chan gave us this). Or, if you think the general public is not qualified to rate ideas according to how they should be prioritized by the White House (and I'd be inclined to agree), you could have the ideas rated by a random subset of, say, the nation's economics professors.

Of course, I haven't heard of any plans to implement this algorithm in any of those contexts. Not that I expected the key power players to be reading my articles, but it's a little surprising that none of them ever came up with this idea independently, either. (To this day, the only website I'm aware of that ever implemented random-sample voting correctly, was HotOrNot.com, where users could rate members' pictures by attractiveness — but each picture's rating was determined by showing it to a random subset of the site's visitors. That system is gone, since the site has made itself over into a date-finding service.)

But academia in general, and science specifically, is different from other arenas in a number of key ways which could help this algorithm succeed:

• Academia, uniquely, is comprised of many professionals whose love of knowledge and intellectual inquiry, is greater than their desire for money. That's not to say that I don't think the same algorithm could work just as well in a business like the music industry, where most of the stakeholders are in it for the money. But even if Pandora did successfully implement the algorithm, it would meet a lot of resistance from entrenched interests in the music industry, who make their money by finding and promoting and managing talent and would not be happy about a new system that threatened to make them irrelevant. In academia, by contrast, it's quite plausible that even the "entrenched interests" — the people who had become superstars under the old system — would see the new system's great potential for disseminating free knowledge, and would welcome it even if it gave scrappy new upstart academics a chance to dethrone them. Not everybody in academia loves knowledge more than they love their own prestige, but I know more people like that in academia than anywhere else.

• In academia, even among people who do care primarily about their own prestige, many of them have tenure and guaranteed job security, a situation that does not exist in most other industries. This gives them the freedom to experiment with new models, such as submitting papers to upstart PeerJ journals. But more importantly for our purposes, it means they can announce that in their department's hiring and promotion decisions, they will count PeerJ-published papers as legitimate professional accomplishments, for the benefit of non-tenured faculty members who do have to worry about their resume.

• Academics, particularly in maths and sciences, are more prone to the kind of thinking that would lead a person naturally in the direction of the kind of system that PeerJ embodies. First, think of a theoretical model (like the kind I described near the beginning of the article). This model predicts that, ideally, it should be possible to publish papers at very low cost with quick turnaround times, without sacrificing peer-review quality assurance. Now, try to approximate that model as closely as possible in the real world. (In most other industries that I've worked in, there's much more inertia around the existing way of doing things, and far less willingness to entertain any discussion about whether a theoretical model can show how we could accomplish the same thing with vastly less overhead.)

And that, in the end, is the real reason journal articles should be free. Not because the U.S. government is making it a condition for taxpayer-funded research, although that is a welcome development. But because there's no part of the process that should cost very much to begin with, if article authors and peer reviewers are already being paid by their employers. The last piece of the puzzle is that enough academics and faculty departments have to agree to confer "prestige" on articles published in open-access journals, equivalent to the level of prestige that they would accord for an article published in a traditional journal of the same quality. If they won't do that, then the old-guard journals will maintain their monopoly on conferring "prestige", and don't be surprised if journal prices keep growing to the point where even Harvard can't pay for them.

Last week you had a chance to ask former Republican staffer Derek Khanna about his well publicized firing, copyright law, and the state of the government. Read below to see his answers to your questions. Do You Still Identify Yourself as Republican?
by eldavojohn

I believe your paper would have been unpopular on both sides of the isle but did the Republican knee jerk reaction to it negatively affect your affinity with the Republican party and your efforts to further their cause? Setting aside your differences on Copyright Law with that party, are you still Republican?

Khanna: Absolutely still a Republican. In fact I actually quibble a bit with your premise. The conservative position is that our current system of copyright is not consistent with the Constitution and inhibits innovation by choosing winners and losers– and pretty much all conservative organizations have come out with that opinion. There is a difference between Republican and Conservative that I won’t get into here, but my opinions are conservative and the Republican Party reflects more of the conservative ideology.



Re:Do You Still Identify Yourself as Republican?
by alexander_686

Follow up question: If you had been a Democratic staffer, do you think you would have been fired or would have been treated differently?

That is, what is the interaction between the Republican party verses the general entrenched interests that influences both parties. I have seen many Democrats also advocate for strict IP laws.

Khanna: I’m not sure, I’m not really qualified to assess what happens on the other side of the aisle. But I would think that the memo would never have gotten written at all. The content industry traditionally supports Democrats. And the memo was written for a conservative audience based upon traditional conservative principles.



Law to guide vs. forbid
by Maximum Prophet

One complaint conservatives about liberals is that they tend to try to outlaw stuff reactively. The EPA comes to mind, forbidding property owners certain uses of their land. How can government encourage people to do the right thing without outlawing the wrong thing? How can the government "Speak Softly" but keep the "Big Stick" only when absolutely necessary? With respect to copyrights, could the government tell people it's wrong to let artists starve, while making it easy to justly compensate them for their work?

Khanna: I’m not going to go too off base here, but there are many solutions available other than regulation and forbidding conduct. Often times the market can sort it out, but if, and only if, you ensure that externalities are built in, and you ensure that the government hasn’t already messed with the incentive structures. I’m not really qualified to jump in on EPA issues. And I’m not entirely sure on the rest of your question, as a believer of the free market I don’t think that our copyright system should be built upon ensuring that ALL artists make lots of money and I think that generally the market will facilitate even easier methods of payments with newer technologies.



Re:Great minds think alike
by Tokolosh

My posting from nearly four years ago:

To quote the Constitution: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." What does "limited Times" mean? We can agree that one day is insufficient to be an incentive. We can also agree that infinity is too long to promote progress. Therefore, it stands to reason that there is some optimal duration, which both maximizes the rewards for both the inventors, and society at large. Has any research been done to determine this optimum? Is current legislation based on anything other than what lobbyists can buy for their clients?

Khanna: Terrific question. First, limited times is a term left purposefully vague allowing for Congress to change how long copyright should be. This is a reason why I never said that copyright has to be 28 years – set in stone – as the Founders had (kind of it’s a bit more complicated). And my suggested terms are just suggestions – they were designed to be a starting point for hearings to bring in data.

But I think we have to make arguments for why longer than the Founder term is sound. Arguments like, “Our Founder system of 28 years was premised upon a market of x, and today the market is y, which requires a longer recoupment period for the content producer etc.” But of course that wouldn’t justify our current system of life + 70. In my Cato Unbound piece I go through some of the studies on this topic that pretty conclusively find that there is no incentive to content producers for such a long copyright period.

From the piece:

“Research further shows that our system of copyright is suboptimal at best and significantly counterproductive at worst. For much of our history, copyright required registration to receive the full benefit of the extension. If a longer copyright term were critical to provide sufficient incentive to content producers then we would expect, particularly when copyright terms were much shorter, that content producers would choose to extend their copyright. But during the era of registration, Congress found that only “a very small percentage of copyrights are ever renewed.”[2] They found that the rate of renewal in the 1880s was 15%, and less than half of all works were originally registered at all. If a much longer copyright term of life plus 70 years is so necessary, then why did all these content producers choose to only have 28 years of protection rather than the optional 42 years available at the time?

As William Patry argues in his book How to Fix Copyright,

Was there a single author in the world who said, ‘A term of copyright that only lasts for my life plus fifty years after I die is too short. I will not create a new work unless copyright is extent to last for my life plus seventy years’? There is no such person. (p 57)

Several studies have confirmed this as well. In 2009, a study on the production of movies in twenty-three countries that had extended the term of copyright(pdf) found no evidence that longer terms of copyright caused the creation of more works rather than the prior, shorter term. Another study from the University of Cambridge found that the optimal copyright term is 15 years(pdf), with a 99% confidence interval extending up to 38 years. Even the Congressional Research Service concluded that there was at most a small change in incentive in the extension of copyright term.

If there are no or only minimal benefits to this change, what are the costs?”

So in answer to your question there has been a lot of research. We have cross-country research so we know generally what works. And while the data may show slightly different things, it all shows that life + 70 offers us nothing and actually depresses available content. Current legislation is not based upon this discussion, I don’t recall that being the topic of discussion for the last extension, but it should be particularly when the industry comes knocking in 2019 to ask for life + 90 to keep Steamboat Willy from entering the public domain.

I got into some relevant detail in another more recent essay for Cato-Unbound:

“There are certainly legitimate arguments that copyright should be longer than that of our Founders because of certain market conditions that are different from their day – but there are not legitimate argument to say that a system of indefinite copyright abides by the Constitution or our the express intentions of our Founders.

Despite the American history on Copyright, some still argue that copyright should be or could be a perpetual right that exists forever. Many of them have lobbied successfully on a regular basis to ensure that certain highly-lucrative works never enter the public domain. Some against copyright reform hide behind the shadows of claiming that they are not for an indefinite copyright – but every twenty/thirty years they lobby to extend copyright from 56 years, to life + 50, to life +70. It’s very clear what their intentions are. They intend and have largely succeeded in destroying anything of value entering the public domain. Success in perverting the law should not be misinterpreted for constitutional fidelity despite their property law arguments using 18th century vernacular. These proponents are arguing for something very different from what the Founders believed.

Frankly they lost the argument 226 years ago. The Founders explicitly rejected this position.”



Down the Pipe
by CanHasDIY

Is there any future legislation that you know of / heard about during your time as a staffer that we, the People, should get a heads-up on? Specifically, anything nefarious regarding things like copyright, patents, digital property and/or privacy, et. al?

Khanna: Patents need to be fixed and we obviously need major privacy legislation such as ECPA reform etc. I talked about some of the upcoming privacy issues in my interview with Techdirt. I was always particularly concerned with drone strikes against US citizens so I’m happy that is finally receiving some real attention by MSM and the American people.

As I wrote in my piece in the National Review, I think we can do a much better job in allocating visas to high-skilled workers – and I think there is an actual way to accomplish that goal as outlined in the article or other ideas along a similar thought process (perhaps by providing greater help for small businesses acquiring H-1Bs).

But more on topic, we should keep an eye on the Transpacific Partnership Treaty (TPP) because it will be codifying provisions of the DMCA that are very problematic. The DMCA has been used to make some technology “contraband” and to stifle political speech. While we need to protect intellectual property, the DMCA has proved to be a terrible law. It should not be entirely surprising that the DMCA may need revisions and oversight. The DMCA was passed three years before the iPod, six years before Google Books and nine years before the Kindle. But now that it's clear that the DMCA is being interpreted in a way clearly contrary for which it was passed, it’s incumbent upon Congress to act.The idea of putting the DMCA into an international agreement is a very bad idea. If in the United States it has been used to justify censorship of political speech, imagine what other countries will do that don’t have the First Amendment and are looking for legal structure to justify censorship.

This is a big fight and as a Congressional staffer we weren’t allowed to read it – so very scary stuff and I think an unprecedented level of secrecy on this. I also touched upon this in the Cato Unbound piece:

“This treaty includes provisions on intellectual property that are above and beyond those in the Berne Convention. Setting controversial and contested copyright terms in stone through treaty was wrong then, and it’s wrong now. It’s an affront to the legislative process to try to “re-codify” legislative wins into treaty agreements. That would make it significantly more difficult to ever change course.

The length of copyright terms has always received significant debate and disagreement. This was likely the intention of the Founders in not specifying what a "limited time" meant within the Constitution itself. But current drafts of the TPP allegedly establish the law at life plus 70 years. Additionally, it would include or even expand portions of the Digital Millennium Copyright Act (DMCA) relating to anti-circumvention technologies. To be clear, I am strongly against unauthorized copyright infringement, but the DMCA outlawing of anti-circumvention technologies is extremely controversial—and rightfully so.

The DMCA created rules that until recently made it illegal to jailbreak your own iPhone or to develop a program to read a Kindle book aloud to someone who is blind. The DMCA still bars developing, selling, providing, or even linking to technologies that play legal DVDs purchased in a different region, or to convert a DVD you own to a playable file on your computer. Because no licensed DVD playing software is currently available for the Linux operating system, if a Linux user wishes to play a DVD that they have legally bought, they cannot legally play it on their own computer. The DMCA’s rules have also made legitimate fair uses of copyrighted material much harder. Using snippets of video for classrooms is legal fair use, but to do so, teachers have to use illegal technology to “rip” the DVD to a playable and editable file, or they must illegally download the file online.

Within the leaked details of the TPP Treaty there are many troubling features, but perhaps most troubling is the secrecy surrounding the negotiations. Members have been allowed to view documents, but most of their staff and the general public have been denied access. Outside of the national security realm, this type of secrecy in regard to a treaty is particularly troubling and perhaps unprecedented. Another troubling aspect is that despite this secrecy, there have been “stakeholder” presentations representing one particular side and vested interest, rather than the perspective of the general public or the requirements of our Constitution. One of the stakeholder presentations at the latest TPP negotiations was titled "The Walt-Disney Company: Creativity, Brought to you by Copyright.” At the same time, representatives from the Electronic Freedom Foundation (EFF) were denied access and not allowed in the building for recent negotiations.”

But the recent decision by the Librarian of Congress really takes the cake, which made it illegal to unlock your own cellphone. In a recent article I stated that:

“Congress's inaction in the face of the decision by the Librarian of Congress represents a dereliction of duty. It should pass a new law codifying that adaptive technology for the blind, backing up DVD's to your computer, and unlocking and jail breaking your phone are lawful activities regardless of the decisions of the Librarian of Congress.” (article)

Our White House petition on this issue is currently at 75,000 but we have to get to 100,000 by February 23, 2013. This will be a big opportunity for advocates of sounds technology policy.



Hope?
by Hatta

How do we Americans manage to retain any hope for any sort of positive change when people who are paid to identify beneficial reforms get fired for upsetting special interests? Doesn't your case prove that it's impossible to effect reform through the system? Do you belive that Democracy in America still exists, and if so, why?

Khanna: Democracy is more than just people voting and it’s more than just activism for your candidate of choice. The people have immense power when they are united and coordinated. Unfortunately, most organizing up till now has required major organizations to set-up – but not anymore.

Members of Congress are particularly sensitive to interests from their constituents as expressed through letters, e-mail and phone calls to their office. This is why a united and coordinated movement can be so successful in stopping legislation. But activist movements, like the SOPA protest, cannot rest after stopping one bad piece of legislation. Instead, we must take the next step which is actually passing good legislation.

I imagine that ad-hoc groups of people who agree on some policy idea will form to both stop bad legislation but also to push good legislation. It will take a while to transition to that, but once that is done, then we will have much more of an effect and a substantive democracy. But that will require activism and involvement.

The cellphone unlocking issue is a perfect example of where the people could actually fix policy. The traditional players in DC are unlikely to do so on their own, the wireless industry likes the ruling, and many of the other technology companies may see this as an issue where they have little to gain– so it’s up to the people themselves to step up and say this ruling is crazy. The idea that average people can be arrested for unlocking their phones is insane. I hope that the people step up for their own property rights.



Lawmakers becoming Obsolete
by SinisterRainbow

The United States was founded as Republic, primarily (so it is said) because having individual voices was impossible with the technology of the time. However, we live in an age where the Internet has given us instant communication and access to vast information, where we can relatively securely pass information around, and where especially, we can have every voice heard to write our own bills and laws. Iceland may be small, but they have proven it's more than just a theory. We have open source books, open source software, open encyclopedia, with more 'open' type projects all the time - which have proved immensely successful and very efficient when it comes to money. However, the trend is in the opposite direction, with more power given to lawmakers and large corporations (in the de facto sense at least as contributions are now unlimited, it raises the bar of entry), and congress with it's two main parties, are in a huge poker match. What do you see as the pros and cons against an open-Bill type of system, where the power of the people get a more realistic voice, where the history can be saved for eternity, where the slightest changes can all be remembered using repositories, where anyone can contribute, where it would save multi-millions of dollars in taxes, where multiple types of Bills can be presented and the one the people wish for most receives the most votes? You have represented a party that claims they stand for smaller government, yet it's one that has increased government size as much and many times, more than democrats. Shouldn't such a system be at the forefront of Republican agenda? Or has big business lined the pockets so fat of every member in congress that this is not possible without some type of revolution..?

Khanna: You are correct that the Republican Party claims they are the party of smaller government, yet they have failed to deliver while they were in power – and conservatives are frustrated with the party for that reason. I think that Democrats have been worse in that regard, but clearly the Bush years were very bad ones for fiscal conservatism.

Your idea for a more open government and transparency is interesting, but while I want the people to be more involved in our process I do like the idea – in concept – of representative democracy (I’m not sure exactly what you are saying in that regard).



Would you do it the exact same way again?
by rmdingler

Hindsight being on the order of 20/15 or so, would you make the same bold statement, or, knowing the consequences and repercussions, would you be a bit more tactful and attempt to reform the system from within?

Khanna: I tried to reform the system from within – by doing my job. In this situation, discretion and tact was used as much as possible.



Now What?
by eldavojohn

You told other staffers when you left: Don't be discouraged by the potential consequences. You work for the American people. It's your job, your obligation to be challenging existing paradigms and put forward novel solutions to existing problems.

So now what? What's your plan? I mean, you can tell them not to be discouraged but that's a pretty hefty weight to put on your own shoulders. Anyone who gets a check from the content industry (and I think that's everyone in DC) is going to blacklist you. Do you see yourself taking a Ralph Nader-like approach to politics? How do you even get your foot back in the door? You do realize that if you don't return or rise to another kind of constituent-focused power that your above encouragement will fall upon deaf ears as you will become the example of what happens to an outspoken staffer?

Khanna: Yes, I stand by that statement. We need creative destruction of failed ideas and we need a thriving competition for promising new ideas. Not solving problems but “getting along” is not enough to fix our system at this point.

In normal times, the system can function by each of us playing a minimal role in its proper functioning – but when the system is like it is today, it requires those of us who are paying attention to be more active participants. Democracy is tough, it requires active engagement and participation.

As for me, I have a bunch of plans in the works. Right now I’m working on the cellphone unlocking issue that I mentioned because it’s outrageous and unacceptable. But it’s also a misstep by the other side and therefore it’s a strategic opportunity to restore property rights. Doing so will start to change the overall discussion on technology policy and it’s a winnable battle. I hope you will consider signing and promoting our White House petition and getting us over 100,000 by the end of the week.

I plan on continuing to write and research on sensible technology policies for our country through my fellowship with Yale Law and hopefully being a part in successful advocacy movements going forward.

Follow me on twitter to find out about my next steps. Or shoot me on twitter @Dkhanna11 and e-mail if you have ideas (Khannaderek@gmail.com).

Last week you had a chance to ask former Republican staffer Derek Khanna about his well publicized firing, copyright law, and the state of the government. Read below to see his answers to your questions. Do You Still Identify Yourself as Republican?
by eldavojohn

I believe your paper would have been unpopular on both sides of the isle but did the Republican knee jerk reaction to it negatively affect your affinity with the Republican party and your efforts to further their cause? Setting aside your differences on Copyright Law with that party, are you still Republican?

Khanna: Absolutely still a Republican. In fact I actually quibble a bit with your premise. The conservative position is that our current system of copyright is not consistent with the Constitution and inhibits innovation by choosing winners and losers– and pretty much all conservative organizations have come out with that opinion. There is a difference between Republican and Conservative that I won’t get into here, but my opinions are conservative and the Republican Party reflects more of the conservative ideology.



Re:Do You Still Identify Yourself as Republican?
by alexander_686

Follow up question: If you had been a Democratic staffer, do you think you would have been fired or would have been treated differently?

That is, what is the interaction between the Republican party verses the general entrenched interests that influences both parties. I have seen many Democrats also advocate for strict IP laws.

Khanna: I’m not sure, I’m not really qualified to assess what happens on the other side of the aisle. But I would think that the memo would never have gotten written at all. The content industry traditionally supports Democrats. And the memo was written for a conservative audience based upon traditional conservative principles.



Law to guide vs. forbid
by Maximum Prophet

One complaint conservatives about liberals is that they tend to try to outlaw stuff reactively. The EPA comes to mind, forbidding property owners certain uses of their land. How can government encourage people to do the right thing without outlawing the wrong thing? How can the government "Speak Softly" but keep the "Big Stick" only when absolutely necessary? With respect to copyrights, could the government tell people it's wrong to let artists starve, while making it easy to justly compensate them for their work?

Khanna: I’m not going to go too off base here, but there are many solutions available other than regulation and forbidding conduct. Often times the market can sort it out, but if, and only if, you ensure that externalities are built in, and you ensure that the government hasn’t already messed with the incentive structures. I’m not really qualified to jump in on EPA issues. And I’m not entirely sure on the rest of your question, as a believer of the free market I don’t think that our copyright system should be built upon ensuring that ALL artists make lots of money and I think that generally the market will facilitate even easier methods of payments with newer technologies.



Re:Great minds think alike
by Tokolosh

My posting from nearly four years ago:

To quote the Constitution: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." What does "limited Times" mean? We can agree that one day is insufficient to be an incentive. We can also agree that infinity is too long to promote progress. Therefore, it stands to reason that there is some optimal duration, which both maximizes the rewards for both the inventors, and society at large. Has any research been done to determine this optimum? Is current legislation based on anything other than what lobbyists can buy for their clients?

Khanna: Terrific question. First, limited times is a term left purposefully vague allowing for Congress to change how long copyright should be. This is a reason why I never said that copyright has to be 28 years – set in stone – as the Founders had (kind of it’s a bit more complicated). And my suggested terms are just suggestions – they were designed to be a starting point for hearings to bring in data.

But I think we have to make arguments for why longer than the Founder term is sound. Arguments like, “Our Founder system of 28 years was premised upon a market of x, and today the market is y, which requires a longer recoupment period for the content producer etc.” But of course that wouldn’t justify our current system of life + 70. In my Cato Unbound piece I go through some of the studies on this topic that pretty conclusively find that there is no incentive to content producers for such a long copyright period.

From the piece:

“Research further shows that our system of copyright is suboptimal at best and significantly counterproductive at worst. For much of our history, copyright required registration to receive the full benefit of the extension. If a longer copyright term were critical to provide sufficient incentive to content producers then we would expect, particularly when copyright terms were much shorter, that content producers would choose to extend their copyright. But during the era of registration, Congress found that only “a very small percentage of copyrights are ever renewed.”[2] They found that the rate of renewal in the 1880s was 15%, and less than half of all works were originally registered at all. If a much longer copyright term of life plus 70 years is so necessary, then why did all these content producers choose to only have 28 years of protection rather than the optional 42 years available at the time?

As William Patry argues in his book How to Fix Copyright,

Was there a single author in the world who said, ‘A term of copyright that only lasts for my life plus fifty years after I die is too short. I will not create a new work unless copyright is extent to last for my life plus seventy years’? There is no such person. (p 57)

Several studies have confirmed this as well. In 2009, a study on the production of movies in twenty-three countries that had extended the term of copyright(pdf) found no evidence that longer terms of copyright caused the creation of more works rather than the prior, shorter term. Another study from the University of Cambridge found that the optimal copyright term is 15 years(pdf), with a 99% confidence interval extending up to 38 years. Even the Congressional Research Service concluded that there was at most a small change in incentive in the extension of copyright term.

If there are no or only minimal benefits to this change, what are the costs?”

So in answer to your question there has been a lot of research. We have cross-country research so we know generally what works. And while the data may show slightly different things, it all shows that life + 70 offers us nothing and actually depresses available content. Current legislation is not based upon this discussion, I don’t recall that being the topic of discussion for the last extension, but it should be particularly when the industry comes knocking in 2019 to ask for life + 90 to keep Steamboat Willy from entering the public domain.

I got into some relevant detail in another more recent essay for Cato-Unbound:

“There are certainly legitimate arguments that copyright should be longer than that of our Founders because of certain market conditions that are different from their day – but there are not legitimate argument to say that a system of indefinite copyright abides by the Constitution or our the express intentions of our Founders.

Despite the American history on Copyright, some still argue that copyright should be or could be a perpetual right that exists forever. Many of them have lobbied successfully on a regular basis to ensure that certain highly-lucrative works never enter the public domain. Some against copyright reform hide behind the shadows of claiming that they are not for an indefinite copyright – but every twenty/thirty years they lobby to extend copyright from 56 years, to life + 50, to life +70. It’s very clear what their intentions are. They intend and have largely succeeded in destroying anything of value entering the public domain. Success in perverting the law should not be misinterpreted for constitutional fidelity despite their property law arguments using 18th century vernacular. These proponents are arguing for something very different from what the Founders believed.

Frankly they lost the argument 226 years ago. The Founders explicitly rejected this position.”



Down the Pipe
by CanHasDIY

Is there any future legislation that you know of / heard about during your time as a staffer that we, the People, should get a heads-up on? Specifically, anything nefarious regarding things like copyright, patents, digital property and/or privacy, et. al?

Khanna: Patents need to be fixed and we obviously need major privacy legislation such as ECPA reform etc. I talked about some of the upcoming privacy issues in my interview with Techdirt. I was always particularly concerned with drone strikes against US citizens so I’m happy that is finally receiving some real attention by MSM and the American people.

As I wrote in my piece in the National Review, I think we can do a much better job in allocating visas to high-skilled workers – and I think there is an actual way to accomplish that goal as outlined in the article or other ideas along a similar thought process (perhaps by providing greater help for small businesses acquiring H-1Bs).

But more on topic, we should keep an eye on the Transpacific Partnership Treaty (TPP) because it will be codifying provisions of the DMCA that are very problematic. The DMCA has been used to make some technology “contraband” and to stifle political speech. While we need to protect intellectual property, the DMCA has proved to be a terrible law. It should not be entirely surprising that the DMCA may need revisions and oversight. The DMCA was passed three years before the iPod, six years before Google Books and nine years before the Kindle. But now that it's clear that the DMCA is being interpreted in a way clearly contrary for which it was passed, it’s incumbent upon Congress to act.The idea of putting the DMCA into an international agreement is a very bad idea. If in the United States it has been used to justify censorship of political speech, imagine what other countries will do that don’t have the First Amendment and are looking for legal structure to justify censorship.

This is a big fight and as a Congressional staffer we weren’t allowed to read it – so very scary stuff and I think an unprecedented level of secrecy on this. I also touched upon this in the Cato Unbound piece:

“This treaty includes provisions on intellectual property that are above and beyond those in the Berne Convention. Setting controversial and contested copyright terms in stone through treaty was wrong then, and it’s wrong now. It’s an affront to the legislative process to try to “re-codify” legislative wins into treaty agreements. That would make it significantly more difficult to ever change course.

The length of copyright terms has always received significant debate and disagreement. This was likely the intention of the Founders in not specifying what a "limited time" meant within the Constitution itself. But current drafts of the TPP allegedly establish the law at life plus 70 years. Additionally, it would include or even expand portions of the Digital Millennium Copyright Act (DMCA) relating to anti-circumvention technologies. To be clear, I am strongly against unauthorized copyright infringement, but the DMCA outlawing of anti-circumvention technologies is extremely controversial—and rightfully so.

The DMCA created rules that until recently made it illegal to jailbreak your own iPhone or to develop a program to read a Kindle book aloud to someone who is blind. The DMCA still bars developing, selling, providing, or even linking to technologies that play legal DVDs purchased in a different region, or to convert a DVD you own to a playable file on your computer. Because no licensed DVD playing software is currently available for the Linux operating system, if a Linux user wishes to play a DVD that they have legally bought, they cannot legally play it on their own computer. The DMCA’s rules have also made legitimate fair uses of copyrighted material much harder. Using snippets of video for classrooms is legal fair use, but to do so, teachers have to use illegal technology to “rip” the DVD to a playable and editable file, or they must illegally download the file online.

Within the leaked details of the TPP Treaty there are many troubling features, but perhaps most troubling is the secrecy surrounding the negotiations. Members have been allowed to view documents, but most of their staff and the general public have been denied access. Outside of the national security realm, this type of secrecy in regard to a treaty is particularly troubling and perhaps unprecedented. Another troubling aspect is that despite this secrecy, there have been “stakeholder” presentations representing one particular side and vested interest, rather than the perspective of the general public or the requirements of our Constitution. One of the stakeholder presentations at the latest TPP negotiations was titled "The Walt-Disney Company: Creativity, Brought to you by Copyright.” At the same time, representatives from the Electronic Freedom Foundation (EFF) were denied access and not allowed in the building for recent negotiations.”

But the recent decision by the Librarian of Congress really takes the cake, which made it illegal to unlock your own cellphone. In a recent article I stated that:

“Congress's inaction in the face of the decision by the Librarian of Congress represents a dereliction of duty. It should pass a new law codifying that adaptive technology for the blind, backing up DVD's to your computer, and unlocking and jail breaking your phone are lawful activities regardless of the decisions of the Librarian of Congress.” (article)

Our White House petition on this issue is currently at 75,000 but we have to get to 100,000 by February 23, 2013. This will be a big opportunity for advocates of sounds technology policy.



Hope?
by Hatta

How do we Americans manage to retain any hope for any sort of positive change when people who are paid to identify beneficial reforms get fired for upsetting special interests? Doesn't your case prove that it's impossible to effect reform through the system? Do you belive that Democracy in America still exists, and if so, why?

Khanna: Democracy is more than just people voting and it’s more than just activism for your candidate of choice. The people have immense power when they are united and coordinated. Unfortunately, most organizing up till now has required major organizations to set-up – but not anymore.

Members of Congress are particularly sensitive to interests from their constituents as expressed through letters, e-mail and phone calls to their office. This is why a united and coordinated movement can be so successful in stopping legislation. But activist movements, like the SOPA protest, cannot rest after stopping one bad piece of legislation. Instead, we must take the next step which is actually passing good legislation.

I imagine that ad-hoc groups of people who agree on some policy idea will form to both stop bad legislation but also to push good legislation. It will take a while to transition to that, but once that is done, then we will have much more of an effect and a substantive democracy. But that will require activism and involvement.

The cellphone unlocking issue is a perfect example of where the people could actually fix policy. The traditional players in DC are unlikely to do so on their own, the wireless industry likes the ruling, and many of the other technology companies may see this as an issue where they have little to gain– so it’s up to the people themselves to step up and say this ruling is crazy. The idea that average people can be arrested for unlocking their phones is insane. I hope that the people step up for their own property rights.



Lawmakers becoming Obsolete
by SinisterRainbow

The United States was founded as Republic, primarily (so it is said) because having individual voices was impossible with the technology of the time. However, we live in an age where the Internet has given us instant communication and access to vast information, where we can relatively securely pass information around, and where especially, we can have every voice heard to write our own bills and laws. Iceland may be small, but they have proven it's more than just a theory. We have open source books, open source software, open encyclopedia, with more 'open' type projects all the time - which have proved immensely successful and very efficient when it comes to money. However, the trend is in the opposite direction, with more power given to lawmakers and large corporations (in the de facto sense at least as contributions are now unlimited, it raises the bar of entry), and congress with it's two main parties, are in a huge poker match. What do you see as the pros and cons against an open-Bill type of system, where the power of the people get a more realistic voice, where the history can be saved for eternity, where the slightest changes can all be remembered using repositories, where anyone can contribute, where it would save multi-millions of dollars in taxes, where multiple types of Bills can be presented and the one the people wish for most receives the most votes? You have represented a party that claims they stand for smaller government, yet it's one that has increased government size as much and many times, more than democrats. Shouldn't such a system be at the forefront of Republican agenda? Or has big business lined the pockets so fat of every member in congress that this is not possible without some type of revolution..?

Khanna: You are correct that the Republican Party claims they are the party of smaller government, yet they have failed to deliver while they were in power – and conservatives are frustrated with the party for that reason. I think that Democrats have been worse in that regard, but clearly the Bush years were very bad ones for fiscal conservatism.

Your idea for a more open government and transparency is interesting, but while I want the people to be more involved in our process I do like the idea – in concept – of representative democracy (I’m not sure exactly what you are saying in that regard).



Would you do it the exact same way again?
by rmdingler

Hindsight being on the order of 20/15 or so, would you make the same bold statement, or, knowing the consequences and repercussions, would you be a bit more tactful and attempt to reform the system from within?

Khanna: I tried to reform the system from within – by doing my job. In this situation, discretion and tact was used as much as possible.



Now What?
by eldavojohn

You told other staffers when you left: Don't be discouraged by the potential consequences. You work for the American people. It's your job, your obligation to be challenging existing paradigms and put forward novel solutions to existing problems.

So now what? What's your plan? I mean, you can tell them not to be discouraged but that's a pretty hefty weight to put on your own shoulders. Anyone who gets a check from the content industry (and I think that's everyone in DC) is going to blacklist you. Do you see yourself taking a Ralph Nader-like approach to politics? How do you even get your foot back in the door? You do realize that if you don't return or rise to another kind of constituent-focused power that your above encouragement will fall upon deaf ears as you will become the example of what happens to an outspoken staffer?

Khanna: Yes, I stand by that statement. We need creative destruction of failed ideas and we need a thriving competition for promising new ideas. Not solving problems but “getting along” is not enough to fix our system at this point.

In normal times, the system can function by each of us playing a minimal role in its proper functioning – but when the system is like it is today, it requires those of us who are paying attention to be more active participants. Democracy is tough, it requires active engagement and participation.

As for me, I have a bunch of plans in the works. Right now I’m working on the cellphone unlocking issue that I mentioned because it’s outrageous and unacceptable. But it’s also a misstep by the other side and therefore it’s a strategic opportunity to restore property rights. Doing so will start to change the overall discussion on technology policy and it’s a winnable battle. I hope you will consider signing and promoting our White House petition and getting us over 100,000 by the end of the week.

I plan on continuing to write and research on sensible technology policies for our country through my fellowship with Yale Law and hopefully being a part in successful advocacy movements going forward.

Follow me on twitter to find out about my next steps. Or shoot me on twitter @Dkhanna11 and e-mail if you have ideas (Khannaderek@gmail.com).

Last week you had a chance to ask former Republican staffer Derek Khanna about his well publicized firing, copyright law, and the state of the government. Read below to see his answers to your questions. Do You Still Identify Yourself as Republican?
by eldavojohn

I believe your paper would have been unpopular on both sides of the isle but did the Republican knee jerk reaction to it negatively affect your affinity with the Republican party and your efforts to further their cause? Setting aside your differences on Copyright Law with that party, are you still Republican?

Khanna: Absolutely still a Republican. In fact I actually quibble a bit with your premise. The conservative position is that our current system of copyright is not consistent with the Constitution and inhibits innovation by choosing winners and losers– and pretty much all conservative organizations have come out with that opinion. There is a difference between Republican and Conservative that I won’t get into here, but my opinions are conservative and the Republican Party reflects more of the conservative ideology.



Re:Do You Still Identify Yourself as Republican?
by alexander_686

Follow up question: If you had been a Democratic staffer, do you think you would have been fired or would have been treated differently?

That is, what is the interaction between the Republican party verses the general entrenched interests that influences both parties. I have seen many Democrats also advocate for strict IP laws.

Khanna: I’m not sure, I’m not really qualified to assess what happens on the other side of the aisle. But I would think that the memo would never have gotten written at all. The content industry traditionally supports Democrats. And the memo was written for a conservative audience based upon traditional conservative principles.



Law to guide vs. forbid
by Maximum Prophet

One complaint conservatives about liberals is that they tend to try to outlaw stuff reactively. The EPA comes to mind, forbidding property owners certain uses of their land. How can government encourage people to do the right thing without outlawing the wrong thing? How can the government "Speak Softly" but keep the "Big Stick" only when absolutely necessary? With respect to copyrights, could the government tell people it's wrong to let artists starve, while making it easy to justly compensate them for their work?

Khanna: I’m not going to go too off base here, but there are many solutions available other than regulation and forbidding conduct. Often times the market can sort it out, but if, and only if, you ensure that externalities are built in, and you ensure that the government hasn’t already messed with the incentive structures. I’m not really qualified to jump in on EPA issues. And I’m not entirely sure on the rest of your question, as a believer of the free market I don’t think that our copyright system should be built upon ensuring that ALL artists make lots of money and I think that generally the market will facilitate even easier methods of payments with newer technologies.



Re:Great minds think alike
by Tokolosh

My posting from nearly four years ago:

To quote the Constitution: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." What does "limited Times" mean? We can agree that one day is insufficient to be an incentive. We can also agree that infinity is too long to promote progress. Therefore, it stands to reason that there is some optimal duration, which both maximizes the rewards for both the inventors, and society at large. Has any research been done to determine this optimum? Is current legislation based on anything other than what lobbyists can buy for their clients?

Khanna: Terrific question. First, limited times is a term left purposefully vague allowing for Congress to change how long copyright should be. This is a reason why I never said that copyright has to be 28 years – set in stone – as the Founders had (kind of it’s a bit more complicated). And my suggested terms are just suggestions – they were designed to be a starting point for hearings to bring in data.

But I think we have to make arguments for why longer than the Founder term is sound. Arguments like, “Our Founder system of 28 years was premised upon a market of x, and today the market is y, which requires a longer recoupment period for the content producer etc.” But of course that wouldn’t justify our current system of life + 70. In my Cato Unbound piece I go through some of the studies on this topic that pretty conclusively find that there is no incentive to content producers for such a long copyright period.

From the piece:

“Research further shows that our system of copyright is suboptimal at best and significantly counterproductive at worst. For much of our history, copyright required registration to receive the full benefit of the extension. If a longer copyright term were critical to provide sufficient incentive to content producers then we would expect, particularly when copyright terms were much shorter, that content producers would choose to extend their copyright. But during the era of registration, Congress found that only “a very small percentage of copyrights are ever renewed.”[2] They found that the rate of renewal in the 1880s was 15%, and less than half of all works were originally registered at all. If a much longer copyright term of life plus 70 years is so necessary, then why did all these content producers choose to only have 28 years of protection rather than the optional 42 years available at the time?

As William Patry argues in his book How to Fix Copyright,

Was there a single author in the world who said, ‘A term of copyright that only lasts for my life plus fifty years after I die is too short. I will not create a new work unless copyright is extent to last for my life plus seventy years’? There is no such person. (p 57)

Several studies have confirmed this as well. In 2009, a study on the production of movies in twenty-three countries that had extended the term of copyright(pdf) found no evidence that longer terms of copyright caused the creation of more works rather than the prior, shorter term. Another study from the University of Cambridge found that the optimal copyright term is 15 years(pdf), with a 99% confidence interval extending up to 38 years. Even the Congressional Research Service concluded that there was at most a small change in incentive in the extension of copyright term.

If there are no or only minimal benefits to this change, what are the costs?”

So in answer to your question there has been a lot of research. We have cross-country research so we know generally what works. And while the data may show slightly different things, it all shows that life + 70 offers us nothing and actually depresses available content. Current legislation is not based upon this discussion, I don’t recall that being the topic of discussion for the last extension, but it should be particularly when the industry comes knocking in 2019 to ask for life + 90 to keep Steamboat Willy from entering the public domain.

I got into some relevant detail in another more recent essay for Cato-Unbound:

“There are certainly legitimate arguments that copyright should be longer than that of our Founders because of certain market conditions that are different from their day – but there are not legitimate argument to say that a system of indefinite copyright abides by the Constitution or our the express intentions of our Founders.

Despite the American history on Copyright, some still argue that copyright should be or could be a perpetual right that exists forever. Many of them have lobbied successfully on a regular basis to ensure that certain highly-lucrative works never enter the public domain. Some against copyright reform hide behind the shadows of claiming that they are not for an indefinite copyright – but every twenty/thirty years they lobby to extend copyright from 56 years, to life + 50, to life +70. It’s very clear what their intentions are. They intend and have largely succeeded in destroying anything of value entering the public domain. Success in perverting the law should not be misinterpreted for constitutional fidelity despite their property law arguments using 18th century vernacular. These proponents are arguing for something very different from what the Founders believed.

Frankly they lost the argument 226 years ago. The Founders explicitly rejected this position.”



Down the Pipe
by CanHasDIY

Is there any future legislation that you know of / heard about during your time as a staffer that we, the People, should get a heads-up on? Specifically, anything nefarious regarding things like copyright, patents, digital property and/or privacy, et. al?

Khanna: Patents need to be fixed and we obviously need major privacy legislation such as ECPA reform etc. I talked about some of the upcoming privacy issues in my interview with Techdirt. I was always particularly concerned with drone strikes against US citizens so I’m happy that is finally receiving some real attention by MSM and the American people.

As I wrote in my piece in the National Review, I think we can do a much better job in allocating visas to high-skilled workers – and I think there is an actual way to accomplish that goal as outlined in the article or other ideas along a similar thought process (perhaps by providing greater help for small businesses acquiring H-1Bs).

But more on topic, we should keep an eye on the Transpacific Partnership Treaty (TPP) because it will be codifying provisions of the DMCA that are very problematic. The DMCA has been used to make some technology “contraband” and to stifle political speech. While we need to protect intellectual property, the DMCA has proved to be a terrible law. It should not be entirely surprising that the DMCA may need revisions and oversight. The DMCA was passed three years before the iPod, six years before Google Books and nine years before the Kindle. But now that it's clear that the DMCA is being interpreted in a way clearly contrary for which it was passed, it’s incumbent upon Congress to act.The idea of putting the DMCA into an international agreement is a very bad idea. If in the United States it has been used to justify censorship of political speech, imagine what other countries will do that don’t have the First Amendment and are looking for legal structure to justify censorship.

This is a big fight and as a Congressional staffer we weren’t allowed to read it – so very scary stuff and I think an unprecedented level of secrecy on this. I also touched upon this in the Cato Unbound piece:

“This treaty includes provisions on intellectual property that are above and beyond those in the Berne Convention. Setting controversial and contested copyright terms in stone through treaty was wrong then, and it’s wrong now. It’s an affront to the legislative process to try to “re-codify” legislative wins into treaty agreements. That would make it significantly more difficult to ever change course.

The length of copyright terms has always received significant debate and disagreement. This was likely the intention of the Founders in not specifying what a "limited time" meant within the Constitution itself. But current drafts of the TPP allegedly establish the law at life plus 70 years. Additionally, it would include or even expand portions of the Digital Millennium Copyright Act (DMCA) relating to anti-circumvention technologies. To be clear, I am strongly against unauthorized copyright infringement, but the DMCA outlawing of anti-circumvention technologies is extremely controversial—and rightfully so.

The DMCA created rules that until recently made it illegal to jailbreak your own iPhone or to develop a program to read a Kindle book aloud to someone who is blind. The DMCA still bars developing, selling, providing, or even linking to technologies that play legal DVDs purchased in a different region, or to convert a DVD you own to a playable file on your computer. Because no licensed DVD playing software is currently available for the Linux operating system, if a Linux user wishes to play a DVD that they have legally bought, they cannot legally play it on their own computer. The DMCA’s rules have also made legitimate fair uses of copyrighted material much harder. Using snippets of video for classrooms is legal fair use, but to do so, teachers have to use illegal technology to “rip” the DVD to a playable and editable file, or they must illegally download the file online.

Within the leaked details of the TPP Treaty there are many troubling features, but perhaps most troubling is the secrecy surrounding the negotiations. Members have been allowed to view documents, but most of their staff and the general public have been denied access. Outside of the national security realm, this type of secrecy in regard to a treaty is particularly troubling and perhaps unprecedented. Another troubling aspect is that despite this secrecy, there have been “stakeholder” presentations representing one particular side and vested interest, rather than the perspective of the general public or the requirements of our Constitution. One of the stakeholder presentations at the latest TPP negotiations was titled "The Walt-Disney Company: Creativity, Brought to you by Copyright.” At the same time, representatives from the Electronic Freedom Foundation (EFF) were denied access and not allowed in the building for recent negotiations.”

But the recent decision by the Librarian of Congress really takes the cake, which made it illegal to unlock your own cellphone. In a recent article I stated that:

“Congress's inaction in the face of the decision by the Librarian of Congress represents a dereliction of duty. It should pass a new law codifying that adaptive technology for the blind, backing up DVD's to your computer, and unlocking and jail breaking your phone are lawful activities regardless of the decisions of the Librarian of Congress.” (article)

Our White House petition on this issue is currently at 75,000 but we have to get to 100,000 by February 23, 2013. This will be a big opportunity for advocates of sounds technology policy.



Hope?
by Hatta

How do we Americans manage to retain any hope for any sort of positive change when people who are paid to identify beneficial reforms get fired for upsetting special interests? Doesn't your case prove that it's impossible to effect reform through the system? Do you belive that Democracy in America still exists, and if so, why?

Khanna: Democracy is more than just people voting and it’s more than just activism for your candidate of choice. The people have immense power when they are united and coordinated. Unfortunately, most organizing up till now has required major organizations to set-up – but not anymore.

Members of Congress are particularly sensitive to interests from their constituents as expressed through letters, e-mail and phone calls to their office. This is why a united and coordinated movement can be so successful in stopping legislation. But activist movements, like the SOPA protest, cannot rest after stopping one bad piece of legislation. Instead, we must take the next step which is actually passing good legislation.

I imagine that ad-hoc groups of people who agree on some policy idea will form to both stop bad legislation but also to push good legislation. It will take a while to transition to that, but once that is done, then we will have much more of an effect and a substantive democracy. But that will require activism and involvement.

The cellphone unlocking issue is a perfect example of where the people could actually fix policy. The traditional players in DC are unlikely to do so on their own, the wireless industry likes the ruling, and many of the other technology companies may see this as an issue where they have little to gain– so it’s up to the people themselves to step up and say this ruling is crazy. The idea that average people can be arrested for unlocking their phones is insane. I hope that the people step up for their own property rights.



Lawmakers becoming Obsolete
by SinisterRainbow

The United States was founded as Republic, primarily (so it is said) because having individual voices was impossible with the technology of the time. However, we live in an age where the Internet has given us instant communication and access to vast information, where we can relatively securely pass information around, and where especially, we can have every voice heard to write our own bills and laws. Iceland may be small, but they have proven it's more than just a theory. We have open source books, open source software, open encyclopedia, with more 'open' type projects all the time - which have proved immensely successful and very efficient when it comes to money. However, the trend is in the opposite direction, with more power given to lawmakers and large corporations (in the de facto sense at least as contributions are now unlimited, it raises the bar of entry), and congress with it's two main parties, are in a huge poker match. What do you see as the pros and cons against an open-Bill type of system, where the power of the people get a more realistic voice, where the history can be saved for eternity, where the slightest changes can all be remembered using repositories, where anyone can contribute, where it would save multi-millions of dollars in taxes, where multiple types of Bills can be presented and the one the people wish for most receives the most votes? You have represented a party that claims they stand for smaller government, yet it's one that has increased government size as much and many times, more than democrats. Shouldn't such a system be at the forefront of Republican agenda? Or has big business lined the pockets so fat of every member in congress that this is not possible without some type of revolution..?

Khanna: You are correct that the Republican Party claims they are the party of smaller government, yet they have failed to deliver while they were in power – and conservatives are frustrated with the party for that reason. I think that Democrats have been worse in that regard, but clearly the Bush years were very bad ones for fiscal conservatism.

Your idea for a more open government and transparency is interesting, but while I want the people to be more involved in our process I do like the idea – in concept – of representative democracy (I’m not sure exactly what you are saying in that regard).



Would you do it the exact same way again?
by rmdingler

Hindsight being on the order of 20/15 or so, would you make the same bold statement, or, knowing the consequences and repercussions, would you be a bit more tactful and attempt to reform the system from within?

Khanna: I tried to reform the system from within – by doing my job. In this situation, discretion and tact was used as much as possible.



Now What?
by eldavojohn

You told other staffers when you left: Don't be discouraged by the potential consequences. You work for the American people. It's your job, your obligation to be challenging existing paradigms and put forward novel solutions to existing problems.

So now what? What's your plan? I mean, you can tell them not to be discouraged but that's a pretty hefty weight to put on your own shoulders. Anyone who gets a check from the content industry (and I think that's everyone in DC) is going to blacklist you. Do you see yourself taking a Ralph Nader-like approach to politics? How do you even get your foot back in the door? You do realize that if you don't return or rise to another kind of constituent-focused power that your above encouragement will fall upon deaf ears as you will become the example of what happens to an outspoken staffer?

Khanna: Yes, I stand by that statement. We need creative destruction of failed ideas and we need a thriving competition for promising new ideas. Not solving problems but “getting along” is not enough to fix our system at this point.

In normal times, the system can function by each of us playing a minimal role in its proper functioning – but when the system is like it is today, it requires those of us who are paying attention to be more active participants. Democracy is tough, it requires active engagement and participation.

As for me, I have a bunch of plans in the works. Right now I’m working on the cellphone unlocking issue that I mentioned because it’s outrageous and unacceptable. But it’s also a misstep by the other side and therefore it’s a strategic opportunity to restore property rights. Doing so will start to change the overall discussion on technology policy and it’s a winnable battle. I hope you will consider signing and promoting our White House petition and getting us over 100,000 by the end of the week.

I plan on continuing to write and research on sensible technology policies for our country through my fellowship with Yale Law and hopefully being a part in successful advocacy movements going forward.

Follow me on twitter to find out about my next steps. Or shoot me on twitter @Dkhanna11 and e-mail if you have ideas (Khannaderek@gmail.com).

Mirk writes "Academic researchers want to make their papers open access for the world to read. If they use traditional publishers like Elsevier, Springer or Taylor & Francis, they'll be charged $3000 to bring their work out from behind the paywall. But PeerJ, a new megajournal launched today and funded by Tim O'Reilly, publishes open access articles for $99. That's not done by cutting corners: the editorial process is thorough, and they use rigorous peer-review. The cost savings come from running lean and mean on a born-digital system. The initial batch of 30 papers includes one on a Penn and Teller trick and one on the long necks of dinosaurs." $99 entitles you to publish an article a year, for life. $300 nets you unlimited articles published per year.

First time accepted submitter admiral snackbar writes "The European Court of Human Rights has declared that the copyright monopoly stands in direct conflict with fundamental Human Rights, as defined in the European Union and elsewhere. 'For the first time in a judgment on the merits, the European Court of Human Rights has clarified that a conviction based on copyright law for illegally reproducing or publicly communicating copyright protected material can be regarded as an interference with the right of freedom of expression and information under Article 10 of the European Convention [on Human Rights]. Such interference must be in accordance with the three conditions enshrined in the second paragraph of Article 10 of the Convention. This means that a conviction or any other judicial decision based on copyright law, restricting a person's or an organization's freedom of expression, must be pertinently motivated as being necessary in a democratic society, apart from being prescribed by law and pursuing a legitimate aim.'"

theodp writes "If Aaron Swartz downloaded JSTOR documents without paying for them, it would presumably be considered a crime by the USDOJ. But if U.S. Attorney Carmen Ortiz or U.S. Attorney General Eric Holder did the same? Rather than a crime, it would be considered their entitlement, a perk of an elite education that's paid for by their alma maters. Ironically and sadly, that's the kind of inequity Aaron railed against with the Guerilla Open Access Manifesto, a document the DOJ cited as evidence (pdf) that Swartz was a menace to society. On Thursday, Ortiz insisted Swartz — who she now characterizes as 'mentally ill' — received fair and reasonable treatment from the DOJ. But that wasn't good enough for Senator John Cornyn, who on Friday asked Eric Holder to explain the DOJ prosecution of Aaron Swartz." Federal prosecutors have come under heavy criticism for their handling of the Swartz case. Legal scholar Orin Kerr provides counterpoint with two detailed, well-reasoned posts about the case. Kerr says that, as the law stands, the charges against Swartz were "pretty much legit," and that the law itself should be the target of the internet community's angst, rather than the prosecutors. "...blame the system and aim to reform the system; don’t think that this was just two or three prosecutors that were doing something unusual. It wasn’t." James Boyle, co-founder of the Center for the Study of the Public Domain, disagrees with Kerr (partly), arguing that Swartz's renown is simply drawing people together to collectively shine a light on poor legislation and poor prosecutorial practices.

New submitter electron sponge writes "On Friday morning, the Senate renewed the FISA Amendments Act (PDF), which allows for warrantless electronic eavesdropping, for an additional five years. The act, which was originally passed by Congress in 2008, allows law enforcement agencies to access private communications as long as one participant in the communications could reasonably be believed to be outside the United States. This law has been the subject of a federal lawsuit, and was argued before the Supreme Court recently. 'The legislation does not require the government to identify the target or facility to be monitored. It can begin surveillance a week before making the request, and the surveillance can continue during the appeals process if, in a rare case, the secret FISA court rejects the surveillance application. The court’s rulings are not public.'" The EFF points out that the Senate was finally forced to debate the bill, but the proposed amendments that would have improved it were rejected.

dsinc sends this quote from Techdirt about the International Telecommunications Union's ongoing conference in Dubai that will have an effect on the internet everywhere: "One of the concerns is that decisions taken there may make the Internet less a medium that can be used to enhance personal freedom than a tool for state surveillance and oppression. The new Y.2770 standard is entitled 'Requirements for deep packet inspection in Next Generation Networks', and seeks to define an international standard for deep packet inspection (DPI). As the Center for Democracy & Technology points out, it is thoroughgoing in its desire to specify technologies that can be used to spy on people. One of the big issues surrounding WCIT and the ITU has been the lack of transparency — or even understanding what real transparency might be. So it will comes as no surprise that the new DPI standard was negotiated behind closed doors, with no drafts being made available."

TrueSatan writes "Reminiscent of buggy whip manufacturers taking legal action against auto makers, the former U.S. Register of Copyrights, Ralph Oman, has given an amicus brief in the Aereo case (PDF) stating that all new content-delivery technology should be presumed illegal unless and until it is approved by Congress. He adds that providers of new technology should be forced to apply to Congress to prove they don't upset existing business models."

An anonymous reader points out the recent trouble of author Cody Jackson, who wrote a book called Learning to Program with Python. He offers the book for sale, but also gives it away for free, and he used the CC-BY license. In order to distribute the book, he posted links to his torrent of it. Unfortunately, this cause Google to suspect his AdSense account for his website. Even after removing the links, he was unable to get in contact with Google's AdSense team to get his accounts restored. After his story was picked up yesterday by Techdirt, somebody at Google "re-reviewed" his case and finally reinstated his account. Jackson had this to say: "One good thing about this is that it has helped raise awareness of the problems with corporate copyright policies and copyright regulation as a whole. When a person is unable to post his/her own products on the 'net because someone fears copyright infringement has occurred, there is a definite problem." This follows a few high-profile situations in which copyright enforcement bots have knocked down perfectly legitimate content.

TrueSatan writes "A leak from the Clean IT project reveals how it has been subverted from its original, much more innocuous, goals into a surveillance horror story with democratic freedoms and personal rights being the victims." The leaked document in question. Gems include member states repealing anti-filtering laws and a mandate that ISPs be held liable for not reporting terrorist use of their networks. The Clean IT Project counters that there's nothing to see here (amazingly, through a series of tweets with a journalist).

OverTheGeicoE writes "The motion to force DHS to start its public comment period is still working its way through the court (DHS: 'We're not stonewalling!', EPIC: 'Yes, you are!'). While we wait for the decision, Cato Institute's Jim Harper points out another way for the public to comment on body scanners, tsacomment.com. Even before this site existed, of course, the government was receiving public comment anyway in the form of passenger complaint letters, which they buried in their files. Even so, the public can get a chance to view those comments as the result of Freedom of Information Act requests. An FOIA request about pat-downs by governmentattic.org yielded hundreds of pages of letters to the government from 2010, including frequent reports of pat-down induced PTSD and sexual abuse trauma."

An anonymous reader tips an article at TechDirt about draft legislation from Representative Jerry Nadler (D-NY) that would dramatically increase the music royalty fees for cable and satellite radio to put them at the same level as internet radio streaming. TechDirt calls this the 'RIAA Bailout Act of 2012' and says the RIAA has been pursuing similar legislation to increase royalty rates for terrestrial radio as well. "As it stands now, the rates are so damaging that Pandora — the top player in the space — has made it clear it may never be profitable. Yes, never. Nadler's bill would effectively make sure that no one else in that market would be profitable either. The end result? Many of these services don't exist or never get started. That would actually mean fewer services, fewer listeners and lower royalties. It's almost as if he has no concept of price elasticity. Lower prices can create higher total income. Also, the idea that any particular Congressional Rep. should be (effectively) determining what the "fair" price is for anything is, well, horrifying. "

bricko sends this disappointing but not unexpected news from Techdirt: "While it didn't get nearly as much attention as other parts of SOPA, one section in the bill that greatly concerned us was the massive expansion of the diplomatic corp.'s 'IP attaches.' If you're unfamiliar with the program, basically IP attaches are 'diplomats' (and I use the term loosely) who go around the globe pushing a copyright maximalist position on pretty much every other country. Their role is not to support more effective or more reasonable IP policy. It is solely to increase expansion, and basically act as Hollywood's personal thugs pressuring other countries to do the will of the major studios and labels. The role is literally defined as pushing for 'aggressive support for enforcement action' throughout the world. ... In other words, these people are not neutral. They do not have the best interests of the public or the country in mind. Their job is solely to push the copyright maximalist views of the legacy entertainment industry around the globe, and position it as the will of the U.S. government. It was good that this was defeated as a part of SOPA... but now comes the news that Lamar Smith is introducing a new bill that not only brings back this part, but appears to expand it and make it an even bigger deal."

walterbyrd writes "The latest in the ridiculous saga of the patent dispute between Apple and Samsung, which has resulted in Samsung phones and tablets being banned from sale in the U.S. is that Samsung, with the help of Google, has been pushing out an over-the-air software update to make its phones worse. Yes, the OTA update is designed to take away a feature, in an effort to convince the judge that the phones no longer violate Apple's patents. The feature in question? The ability to do a single search that covers both the local device and the internet."

Dupple tips a story at Techdirt about comments from EU commissioner Karel De Gucht, who made some discouraging remarks to the EU International Trade committee about the opposition to ACTA: "If you decide for a negative vote before the European Court rules, let me tell you that the Commission will nonetheless continue to pursue the current procedure before the Court, as we are entitled to do. A negative vote will not stop the proceedings before the Court of Justice. ... If the Court questions the conformity of the agreement with the Treaties we will assess at that stage how this can be addressed." De Gucht also spoke about proposing clarifications to ACTA if Parliament declined to ratify it, which, as Techdirt points out, doesn't make much sense: "Remember that ACTA is now signed, and cannot be altered; so De Gucht is instead trying to fob off European politicians with this vague idea of 'clarifications' — as if more vagueness could somehow rectify the underlying problems of an already dangerously-vague treaty."

Techdirt has a story about statements from Congressional staffer Stephanie Moore, who had some interesting — and somewhat insulting — things to say about the 'net-wide protests against the Stop Online Piracy Act (SOPA). "Netizens poisoned the well, and as a result the reliability of the internet is at risk," she said. Moore went on, "Congress was criticized for not being tech savvy, but from a lot of the comments we got it became clear that the people who were calling us did not understand the bill any better than we did." The article also points out comments from Steve Metalitz, a lawyer who represents members of the entertainment industry: "Most countries in the world already have this option at their disposal to deal with this problem. If site blocking broke the internet, then the internet would already be broken."

Last week, you asked questions of Vermont Senate candidate Jeremy Hansen, running on an unusual platform: Hansen pledges to take advantage of modern communications if elected, and (with exceptions he outlines in his answers) vote based on the opinion of his district's voters on a per-issue basis. Read below Hansen's answers about such a system could work; he addresses concerns about security, practicality, morality, and more. "Before I start with the answers," he writes in introduction, "I want to clear a few things up. I am running as an independent for a Vermont Senate seat, not the U.S. Senate, so questions about classified and similar material do not (for the most part) apply. Also, for everyone's reference, there are 44,000 registered voters in Vermont's Washington County Senate district. Many of the concerns about managing input from very large populations are not as applicable here." Read on for more. Constitution?
by MyFirstNameIsPaul

What will you do when your constituents want you to violate the Constitution?

Jeremy Hansen: I would do the same thing as anyone else who has sworn an oath to "support the Constitution of the State of Vermont and the Constitution of the United States.": Tell them no.

Or when appropriate, I could suggest that an amendment to the Constitution would be necessary.

There is a "release valve" in all of this: the representative. I am not suggesting unfettered direct democracy. Part of my proposal is to reserve the right to vote in opposition to majority sentiment if I have a moral (or in this case, Constitutional) objection. At that point, I offer my constituents the opportunity to initiate a vote on whether everyone believes I should remain in office. If the majority votes that I made a mistake overriding the previous vote, I step down.

What is your participation threshold?
by Burz

It is conceivable there would be many bills that do not have popular attention, but which are still critically important to a functioning society. Will you require a minimum number of votes on an issue before going against your own better judgement, or will any amount of citizen input suffice to direct you?

JH: Even in a small district like Washington County, I agree that we do need a participation threshold. The threshold should be high enough to ensure a representative (though clearly non-random) sample, but not so high as to discourage participation and make the whole feedback process moot. If we pretend for a moment to have a random sample, a threshold of 2000 votes would seem to me a reasonable compromise between the two: at a 99% confidence level, that gives a confidence interval of 2.82.

Do you think direct democracy is the answer?
by PCM2

California has been running an ongoing experiment with direct democracy for many years, and here IMHO it's mostly been an abysmal failure.

Of course, the classic example of direct democracy gone wrong in California is Proposition 13, which put strict limits on property taxes, and as a result, impoverished school districts, libraries, fire departments, and other community services in many areas. Debate over the bill was so contentious at the time, and continues to be to this day, that to even approach the idea of repealing it is considered a political death sentence, so no representative has the will to do it.

So to repeat my question: Are you really sure this is a good idea?

JH: Am I 100% certain that it will work? No, but I am very confident that it will be an improvement. As Majid Behrouzi puts it in his second volume of "Democracy as the Political Empowerment of the Citizen," "[Democracy] is primarily about individual citizens experiencing political power directly and doing so on an ongoing basis." This is a goal that I believe we can reach, even if only initially at the county level.

California's situation is strange; I'll give you that. Here's a set of Economist articles (http://www.economist.com/node/18563638) (thanks r0ball) that talks about how strange it is, with a glimmer of hope towards the end:

"Switzerland, whence California imported the idea, the initiative process works well. In some of the other 23 American states that practise some variant, it works better than in others. So the problem is not direct democracy as such, or even the initiative process, but the details of its Californian variant. It needs to be fixed, not eliminated."

I'm also encouraged that I'm not the only (and certainly not the first) one pursuing this idea:

• Phil Dodds, current candidate for the House of Representatives in Florida
• The Pirate Party's Liquid Feedback
• Sweden's Aktiv Demokrati
• Online Party of Canada
• UK's People's Administration
• Australia's Senator Online

Campaign Confusion
by eldavojohn

Why would someone who feels that their important issue views are a minority ever vote for you? Clearly an opponent of yours could approach the LBGT community and say "Hey, Hansen's going to ask the population if you guys can get married and you're the minority so don't plan on that ever passing." Or the Atheists, the rich businessmen, the greens, the unions, any very specific religious group, etc (the list goes on). And by the time they're done pointing out how the majority are going to "oppress" the minority for all these interest groups, they've covered a large part of the population. How are you going campaign against something like this? Surely you can't even run on a position in response to any of these questions? Your answer will always be "Whatever the most people want." So how will you combat such a strategy?

JH: In part, I expect that all reasonable points of view will be presented. What I'm proposing is not perfect, and I can't hope to solve every problem with our current system of representation. Minorities already get short shrift more often than the majority, so I am not convinced what I'm proposing is in fact worse. I have felt quite comfortable explaining my position to individuals interested in minority position issues, and they have seemed receptive to the idea. You can't make everybody happy all the time, but you can provide citizens with more of a voice in the decisions that affect them.

How do you ensure the poll is representative?
by gstoddart

If you let everyone vote on a web page, you're self selecting for technology literate, able to afford an internet connection, and politically engaged enough to care to vote.

If the same 10% or so vote on every issue, you might end up with skewed results.

And, as has been pointed out, you'd need to be sure the system was secure and had some validation in it -- otherwise you have no idea if you can trust the votes. Then of course, all of your voters are essentially on record for having voted for/against something.

It sounds like a good idea in theory, but the devil is always in the details.

JH: Part of my proposal is to incorporate offline "town hall"-style meetings and other non-Internet communications so that those citizens who aren't tech savvy or who don't have reliable Internet connections can still participate.

The short answer about trying to prevent skewed results is that I really can't. By having a participation threshold, the "release valve", and by widely publicizing the way the votes are going, we can mitigate some of the risk of skewed results. When an issue comes up for a vote, I will provide an analysis and justification for how I would vote if it were only my decision but ultimately leave the decision in the hands of the citizens. I also think that adding a deliberative component (discussion forums and such), citizens will hopefully have as much information as they need to make informed choices.

Citizens should be able to change their votes as new information comes to light, and would not necessarily be able to be tied to their previous votes.

How do you plan on handling the political "game"?
by MetalliQaZ

I like the concept of taking direction directly from the will of your constituents, but how do you plan on handling...politics? More specifically, when the party needs votes and deals have been made, how will you stand up to the leadership and refuse to take part? Will that not render you an outsider and remove valuable (perhaps necessary) political clout? It seems like the Washington political machine is incompatible with direct democracy.

JH: The good news about running as an independent, is that I don't have leadership to stand up to. (Also, recall as I mentioned above, that this is a state legislative position, and the only Washington that I will be interacting with directly is Washington County, Vermont) Still, I think you're right that politics will come up, and any sort of compromise/exchange of votes would have to be presented to my constituents as such. This could certainly remove valuable political clout, but I think my proposal is valuable enough on its own that I'm willing to sacrifice the clout if it comes down to that. I suspect that some constituents will react with indignance and some will think that compromise is a good idea. It's not often that a situation comes up with a simple black or white answer — this is where I feel the power of deliberation and discussion becomes apparent.

Security
by macaran

How will you ensure that only your constituents vote on the topic, and that they vote only once?

Security?
by eldavojohn

How are you going to stop someone from hacking this system? How will accountability be implemented while protecting voter's anonymity (so that employers or other interested parties with leverage can't influence their vote)?

JH: It will probably be difficult. Not that my credentials and experience will necessarily guarantee a secure final product, but I do have experience doing OWASP and PCI audits and source code review. I also have a good deal of knowledge in the field of cryptology and the ugly history of electronic voting. I know that there are solutions out there that allow for secure, auditable voting. Keep in mind that the electronic voting will probably not be the be-all end-all method for citizens to communicate their opinions. I see the methods that we already use to communicate to our elected representatives still being important: phone calls, emails, face-to-face meetings, snail mail. I have a list of all my constituents who are registered to vote, so cross-checking with that authoritative list will be an important component of the system. You say your name is John Q. Public from Woodbury, VT? An automated phone call or a card mailed to the address on file could verify John's identity and set him up with a username/password. (As a side effect, this might also be a good way to motivate voter registration.) For the anonymity and employer influence question, stay tuned for the "vote buying" answer below.

What is Right but Unpopular
by eldavojohn

Throughout history many leaders -- Abraham Lincoln, Harry S. Truman and even George W. Bush -- have made decisions that they felt were "right" but were definitely unpopular. Post hoc, we can see the effects and judge those actions. Now these were all high level actions but similar things do happen at the state and county level. Example: Your county's schools are failing horribly and need money but the only place you have money is vehicle tax that is supposed to go to your roads. You propose (if you are even going to take such actions) to move some money from the road fund to the schools -- sacrificing potential traffic problems in the name of education and staying above backwater Mississippi standards. Your populace (who have completed high school and already make long commutes) disagree with you when their vote fails to pass the proposition. What do you do? Maybe an example closer to home: With soaring copper prices, someone proposes to reopen The Elizabeth Mine, but the EPA warns you that clean up from 150 years of abuse hasn't even concluded yet. Unfortunately your populace votes for their jobs and temporary income over the environment, what do you do?

JH: In part, the "release valve" could come into play as previously described, but alternatively, tools like participatory budgeting or other feedback mechanisms to help everyone understand the long-term ramifications of decisions.

Don't you risk vote buying?
by Kupfernigk

In effect, isn't there a risk that following your idea will simply mean that you will vote according to who buys the most online votes, whether by advertising or direct corruption? In this country (the UK) there is a long history of people voting for extreme parties or positions in elections that do not seem to matter. We believe that our representatives have not only the right, but the duty, to identify what is best for their constituents rather than simply to follow whoever shouts loudest.

JH: Right now, it's those with the money that tend to shout loudest anyways — this is something that will be somewhat mitigated by my proposal. It's easier to sway the opinion of a single politician than it is to expect the same effect on a sizable majority of their constituents. The "return on investment" for a lobbyist could be as high as 22,000%.

In terms of vote buying, we have absentee ballots for the general election with the same risk and arguably more serious consequences. As I mentioned earlier, changing one's vote at any time should be no problem. Vote the way the "buyer" is paying you for, then change it back later.

I find the claim that representatives doing "what is best for their constituents [even when they don't know it's good for them]" a bit paternalistic. Phil Dodds put it well in a recent message to me: "[People are] weighing ‘direct democracy' against a fictitious idealized representative democracy. It is not helpful to idealize the current system." I agree with Phil here and think our current system is unrepresentative and far more sensitive to corporate interests than it is to the people for whom the government ostensibly works.

Do You Experience Any Apprehension?
by eldavojohn

At the prospect of going from a professor of deterministic systems to someone who will be a part of and responding to an inherently chaotic and non-deterministic system?

JH: Not all of computer science is deterministic systems, of course — randomized algorithms, Monte Carlo simulations, and genetic programming all involve an element of randomness. I also teach, which one could certainly argue is a pretty chaotic system. I have spent a lot of time with real IT systems, which do not always behave the way that they should. I have two kids under 5 — you want to talk about random?

More seriously, this is a new challenge for me, and I don't doubt that it will be a lot of work both as I campaign and build the system, but also should I be elected, to actually deliver what I'm promising. I believe all of this work will be worthwhile — any apprehension I might have is tempered by feeling that what I'm doing is right.

Hansen adds this note: "I'd like to thank those that contacted me with contributions and offers of technical help — I appreciate both, but will definitely need more help on the software side of things starting immediately and through the end of the year as we build the platform I discuss in more depth on my site and in the answers below. We hope to have something concrete to show by the end of the summer. In particular, thanks to candidate Phil Dodds, project facilitator Drew Nolan, and e-Democracy researcher/consultant Kyle Rivers for the work they've already done."

Glyn Moody writes "We hear a lot about politicians and countries rejecting ACTA, but not so much from the treaty's supporters. Here's a new site, called 'ACTA Facts,' which invites Europeans to 'get the facts' on how wonderful ACTA really is. Judging by its content, this one will be about as successful as Microsoft's 'Get the Facts' campaign a few years ago, which tried to dissuade people from using GNU/Linux. For example, a new report linked to by the site claims that ACTA could 'boost European output by a total of €50 billion, and create as many as 960,000 new jobs.' Unfortunately, that's based on numerous flawed assumptions, including the idea that countries like China and India are going to rush to join ACTA, when the treaty is actually designed as a weapon against them, as they have already noticed."

closer2it writes "At this week's All Things D conference, Walt Mossberg and Kara Swisher invited Hollywood agent Ari Emanuel. He spoke about things like TV not dying, cord-cutting being some kind of myth, and that googlers are smart guys and they should do something about the stealing of content. Josh Topolsky, from The Verge, apparently challenged him (video) on this point, asking: 'Aren't you saying that the road is responsible for the fact that someone drove on it before they robbed my house?' Emanuel didn't like this analogy, and even ended the reply asking Topolsky where he works. Mike Masnick also wrote a piece about the interview. I guess that if the Internet has enemies, I'd say Emanuel gives them a face."

Fluffeh writes "The folks that push 'Anti-Piracy' and 'Copying is Stealing' seem to often request that Google pre-screens content going up on YouTube and of course expect Google to cover the costs. No-one ever really asks the question how much it would cost, but some nicely laid out math by a curious mind points to a pretty hefty figure indeed. Starting with who to employ, their salary expectations and how many people it would take to cover the 72 hours of content uploaded every minute, the numbers start to get pretty large, pretty quickly. US$37 billion a year. Now compare that to Google's revenue for last year."

dgharmon writes in with a story about the final outcome of thousands of Nortel patents that were bought last July. "You may recall last summer that Apple, Microsoft, EMC, RIM, Ericsson and Sony all teamed up to buy Nortel's patents for $4.5 billion. They beat out a team of Google and Intel who bid a bit less. While there was some antitrust scrutiny over the deal, it was dropped and the purchase went through. Apparently, the new owners picked off a bunch of patents to transfer to themselves... and then all (minus EMC, who, one hopes, was horrified by the plans) decided to support a massive new patent troll armed with the remaining 4,000 patents. The company is called Rockstar Consortium, and it's run by the folks who used to run Nortel's patent licensing program anyway — but now employs people whose job it is to just find other companies to threaten." On a semi-related note, there is a new petition to the White House to make a law that patent lawsuits that find for the defendant automatically fine the plaintiff three times the damages they were seeking."

NewYorkCountryLawyer writes "Joel Tenenbaum has filed a reply brief in support of his petition for certiorari to the U.S. Supreme Court, in SONY BMG Music Entertainment v. Tenenbaum, trying to get the Court to take on the thorny issue of copyright statutory damages in the age of mp3 files and micropayments."

New submitter ancientt writes "As a thought experiment, what if the constitution of the U.S. was amended so that no idea (with exceptions only for government use, like currency) could be protected from copy or use beyond January 1, 2035 for more than a five-year period. After a five-year span, any patent, software license, copyright, software NDA or other intellectual property agreement would expire. (This is not an entirely new idea, but would have had significant recent ramifications if it had been enacted in the past.) Specific terms are up for debate, but in this experiment businesses must have time to try to adjust to sell services and make the services good enough to compete with other businesses offering the same basic products. Microsoft can sell a five-year-old variant of OSX, Apple can sell Windows 2030. Cars, computers and phones would, or at least could, still be made, but manufacturers would be free to use any technology more than five years old or license new technology for a five-year competitive edge. Movie, TV and book budgets would have to adjust to the potential five-year profit span, although staggered episode or chapter releases would be legal. Play 'What if' with me. What would be the downsides? What would be the upsides?"

TheGift73 tips an article discussing a new study (PDF) which found Americans are now more worried about cybersecurity threats than they are about terrorism. Here's Techdirt's acerbic take: "Well, it looks like all the fearmongering about hackers shutting down electrical grids and making planes fall from the sky is working. No matter that there's no evidence of any actual risk, or that the only real issue is if anyone is stupid enough to actually connect such critical infrastructure to the internet (the proper response to which is: take it off the internet), fear is spreading. Of course, this is mostly due to the work of a neat combination of ex-politicians/now lobbyists working for defense contractors who stand to make a ton of money from the panic — enabled by politicians who seem to have no shame in telling scary bedtime stories that have no basis in reality."

TheGift73 writes with a Techdirt story about a House Oversight Committee report that is very critical of the TSA's handling of money. "The House Oversight Committee has come out with a report slamming the TSA for tremendous amounts of waste, specifically in the 'deployment and storage' of its scanning equipment. Basically, it sounds like the TSA likes to go on giant spending sprees, buying up security equipment and then never, ever using it." Earlier this month Rand Paul laid out his plan for dealing with the TSA.

Fluffeh writes "It looks like some Pakistanis are taking on 'the man.' With plans laid by the Pakistani Government that could sink up to fifty million websites that it isn't a fan of, Pakistanis took the matter to court — which ruled that such action by the government was unconstitutional. Reporters without Borders was however a little more skeptical 'The high court's ruling, if respected, would make it impossible for the government to introduce any nationwide website filtering system. While welcoming the ruling, which penalizes the lack of transparency in the PTA's past website blocking, Reporters Without Borders calls for vigilance because the PTA could try to circumvent it by devising a constitutional procedure based on the anti-blasphemy law and national security provisions. '"

Fluffeh writes "Breaking up terrorist plots is one of the main goals of the FBI these days. If it can't do that, well, it seems making plots up and then valiantly stopping them is okay too — but the NY Times is calling them on it. 'The United States has been narrowly saved from lethal terrorist plots in recent years — or so it has seemed. A would-be suicide bomber was intercepted on his way to the Capitol; a scheme to bomb synagogues and shoot Stinger missiles at military aircraft was developed by men in Newburgh, N.Y.; and a fanciful idea to fly explosive-laden model planes into the Pentagon and the Capitol was hatched in Massachusetts. But all these dramas were facilitated by the F.B.I., whose undercover agents and informers posed as terrorists offering a dummy missile, fake C-4 explosives, a disarmed suicide vest and rudimentary training. Suspects naïvely played their parts until they were arrested.'"

Fluffeh writes "Breaking up terrorist plots is one of the main goals of the FBI these days. If it can't do that, well, it seems making plots up and then valiantly stopping them is okay too — but the NY Times is calling them on it. 'The United States has been narrowly saved from lethal terrorist plots in recent years — or so it has seemed. A would-be suicide bomber was intercepted on his way to the Capitol; a scheme to bomb synagogues and shoot Stinger missiles at military aircraft was developed by men in Newburgh, N.Y.; and a fanciful idea to fly explosive-laden model planes into the Pentagon and the Capitol was hatched in Massachusetts. But all these dramas were facilitated by the F.B.I., whose undercover agents and informers posed as terrorists offering a dummy missile, fake C-4 explosives, a disarmed suicide vest and rudimentary training. Suspects naïvely played their parts until they were arrested.'"

Fluffeh writes "Breaking up terrorist plots is one of the main goals of the FBI these days. If it can't do that, well, it seems making plots up and then valiantly stopping them is okay too — but the NY Times is calling them on it. 'The United States has been narrowly saved from lethal terrorist plots in recent years — or so it has seemed. A would-be suicide bomber was intercepted on his way to the Capitol; a scheme to bomb synagogues and shoot Stinger missiles at military aircraft was developed by men in Newburgh, N.Y.; and a fanciful idea to fly explosive-laden model planes into the Pentagon and the Capitol was hatched in Massachusetts. But all these dramas were facilitated by the F.B.I., whose undercover agents and informers posed as terrorists offering a dummy missile, fake C-4 explosives, a disarmed suicide vest and rudimentary training. Suspects naïvely played their parts until they were arrested.'"

Fluffeh writes "The USPTO is considering a rather interesting request straight from lobbyists via congress: that certain 'Economically Significant' patents should be kept secret during the process (PDF Warning) of being evaluated and granted. While this does occur at the moment on a very select few patents 'due to national security' for things like nuclear energy and the like — this would allow it to go much, much further. 'By statute, patent applications are published no earlier than 18 months after the filing date, but it takes an average of about three years for a patent application to be processed. This period of time between publication and patent award provides worldwide access to the information included in those applications. In some circumstances, this information allows competitors to design around U.S. technologies and seize markets before the U.S. inventor is able to raise financing and secure a market.'"

Fluffeh writes "CTIA (The mobile operators' industry association) is opposing a California law proposing that a court order be required prior to disclosing personal information. The law seems to be in opposition to the federal government's attempts to wash away the last requirements to get at any information about citizens, but CTIA claims (PDF) '... the wireless industry opposes SB 1434 as it could create greater confusion for wireless providers when responding to legitimate law enforcement requests.' The EFF and the ACLU have been arguing strongly for the bill which is to be voted on shortly." A charming quote from CTIA: "For example, the definition of 'location information' is so sweeping that it could implicate information generally considered basic subscriber information under federal law. Since the implications of this definition are unclear, wireless providers will have difficulty figuring out how to respond to requests for such information. It could place providers in the position of requiring warrants for all law enforcement requests."

Fluffeh writes "The EU Commissioner for the Digital Agenda, Neelie Kroes, has been making some interesting comments about privacy, copyright and many aspects of the digital age. Going so far as to quote the Free Software Foundation and Yochai Benkler, she says: 'Openness is also complex because sometimes it's unclear what it means. ... In the Arab Spring, many brave activists successfully used the open Internet to coordinate peaceful protests. In response, despotic governments sought to control or close down Internet access; and also used ICT tools as a tool of surveillance and repression. We cannot allow democratic voices to be silenced in that way. And I am committed to ensuring "No Disconnect" in countries that struggle for democracy. We must help such activists get around arbitrary disruptions to their basic freedoms.'"

Fluffeh writes "The case involves an online game, MapleStory, and some people who set up an alternate server, UMaple, allowing users to play the game with the official game client, but without logging into the official MapleStory servers. In this case, the people behind UMaple apparently ignored the lawsuit, leading to a default judgment. Although annoyed with MapleStory (The Judge knocked down a request for $68,764.23 — in profits made by UMaple — down to just $398.98), the law states a minimum of $200 per infringement. Multiply that by 17,938 users of UMaple... and you get $3.6 million. In fact, it sounds like the court would very much like to decrease the amount, but notes that 'nevertheless, the court is powerless to deviate from the DMCA's statutory minimum.' Eric Goldman also has some further op-ed and information regarding the case and judgement."

SolKeshNaranek writes with news that Representative Mike Rogers (R-MI), sponsor of CISPA, has decided to tempt fate by referring to the protests that are springing up as 'turbulence on the way down to landing.' From the article: "What really comes through in the article — which mostly talks about how Rogers has been supposedly working with Google to change some of the language in the bill to make it more acceptable -- is how little concern Rogers has for the public. Instead, most of the article just talks about how he's been working with tech companies to make sure they're okay with the bill. And while that's a start, it's no surprise that lots of tech companies would be okay with CISPA, because it grants them broad immunity if they happen to hand over all sorts of private info to the government. But to then call the protests mere 'turbulence' is pretty damned insulting to the actual people this will impact the most: the public, whose privacy may be violated."

SolKeshNaranek writes with news that Representative Mike Rogers (R-MI), sponsor of CISPA, has decided to tempt fate by referring to the protests that are springing up as 'turbulence on the way down to landing.' From the article: "What really comes through in the article — which mostly talks about how Rogers has been supposedly working with Google to change some of the language in the bill to make it more acceptable -- is how little concern Rogers has for the public. Instead, most of the article just talks about how he's been working with tech companies to make sure they're okay with the bill. And while that's a start, it's no surprise that lots of tech companies would be okay with CISPA, because it grants them broad immunity if they happen to hand over all sorts of private info to the government. But to then call the protests mere 'turbulence' is pretty damned insulting to the actual people this will impact the most: the public, whose privacy may be violated."

Weezul writes "Paramount's 'Worldwide VP of Content Protection and Outreach' Al Perry has insinuated that Louis CK making $1 million in 12 days means he isn't monetizing. Al Perry asserted that 'copyright law gives creators the right to monetize their creations, and that even if people like Louis C.K. decide not to do so, that's a choice and not a requirement.' Bonus, Slashdot favorite Jonathan Coulton apparently grossed almost half a million last year."

Weezul writes "Paramount's 'Worldwide VP of Content Protection and Outreach' Al Perry has insinuated that Louis CK making $1 million in 12 days means he isn't monetizing. Al Perry asserted that 'copyright law gives creators the right to monetize their creations, and that even if people like Louis C.K. decide not to do so, that's a choice and not a requirement.' Bonus, Slashdot favorite Jonathan Coulton apparently grossed almost half a million last year."

We've heard recently of CISPA, the Cyber Intelligence Sharing and Protection Act, a bill currently making its way through Congress that many are calling the latest incarnation of SOPA. Reader SolKeshNaranek points out an article at Techdirt explaining exactly why this bill is bad, and how its backers are trying to deflect criticism by using language that's different and rather vague. Quoting: "The bill defines 'cybersecurity systems' and 'cyber threat information' as anything to do with protecting a network from: '(A) efforts to degrade, disrupt, or destroy such system or network; or (B) theft or misappropriation of private or government information, intellectual property, or personally identifiable information.' It's easy to see how that definition could be interpreted to include things that go way beyond network security — specifically, copyright policing systems at virtually any point along a network could easily qualify."

Fluffeh writes "Back in 2007, Heartland had a security breach that resulted in a 130 million credit card details being lifted. A class action suit followed and many thought it would send a direct message to business to ensure proper security measures protecting their clients and customers. With the Heartland case now over and settlements paid out and divided up, the final breakdown is as follows: Class members: $1925 (11 cases out of 290 filed were 'valid'). Lawyers for the plaintiff class action: $606,192. Non-Profits: around $1,000,000 (The Court ruled a minimum of $1 million in payouts). Heartland also paid its own lawyers around $2 million. Eric Goldman (Law Professor) has additional commentary on his Law Blog: 'The opinion indicates Heartland spent $1.5M to advertise the settlement. Thus, it appears they spent over $130,000 to generate each legitimate claim. Surprisingly, the court blithely treats the $1.5M expenditure as a cost of doing business, but I can't wrap my head around it. What an obscene waste of money! Add in the $270k spent on claims administration, and it appears that the parties spent $160k per legitimate claimant. The court isn't bothered by the $270k expenses either, even though that cost about $1k per tendered claim (remember, there were 290 total claims).'"

Techdirt reports that the latest versions of Wikipedia's mobile apps have switched to OpenStreetMap from Google Maps. Says Techdirt's commentary: "One wonders how Google didn't see this coming — or if they did, what exactly their strategy is here. OpenStreetMap is gaining a lot of momentum, and in some areas even features much better data. The real lesson here is that there's never an incumbent that isn't at risk of being unseated, no matter how widespread the adoption of their product or service—especially if they make an anti-customer decision like Google when it put a price tag on Maps. The situation also points to the long-term strength of open solutions: while a crowdsourced system like OpenStreetMap never could have put together a global mapping product as quickly as Google did, over time it has become a serious competitor in terms of both quality and convenience."

Fluffeh writes "Richard Bell, an Australian Film Maker, on a fellowship in New York, produced and directed approximately 18 hours of raw footage for a film with the help of an assistant called Tanya Steele and paid her for these services. Ms Steele, through her American lawyers, sent letters to Mr Bell and his agent claiming that she owned the copyright in the footage and demanding that the trailer be removed from the Internet. She also caused the Vimeo website to remove the trailer. In response, Bell went to the (Australian) courts, which declared him the owner of the copyright in the film, and deemed Steele's threats "unjustifiable". Bell then asked for damages. These were granted in the latest judgment because Bell had lost the opportunity to sell some of his works, which typically cost tens of thousands of dollars, as a result of Steels' threats. The Australian judge awarded over $150,000 in damages plus another $23,000 costs against her."

Fluffeh writes "A nice summary at TechDirt brings word that Bruce Schneier has been debating Kip Hawley, former boss of the TSA, over at the Economist. Bruce has been providing facts, analysis and some amazing statistics throughout the debate, and it makes for very educational reading. Because of the format, the former TSA administrator is compelled to respond. Quoting: 'He wants us to trust that a 400-ml bottle of liquid is dangerous, but transferring it to four 100-ml bottles magically makes it safe. He wants us to trust that the butter knives given to first-class passengers are nevertheless too dangerous to be taken through a security checkpoint. He wants us to trust that there's a reason to confiscate a cupcake (Las Vegas), a 3-inch plastic toy gun (London Gatwick), a purse with an embroidered gun on it (Norfolk, VA), a T-shirt with a picture of a gun on it (London Heathrow) and a plastic lightsaber that's really a flashlight with a long cone on top (Dallas/Fort Worth).""