Appeals Court overrules lower court, upholds breast cancer gene test

By John Timmer

A bit over two years ago, a large collection of interested parties joined together with the ACLU to challenge a practice that had become business as usual: the patenting of human genes. The group filed a suit that targeted a specific set of patents: those used by Myriad Genetics to control the market for tests of the BRCA breast cancer genes. In a surprise result, the judge overseeing the case issued a sweeping ruling that not only voided Myriad's patents, but seemed to put all gene patents at risk. Now that decision has been reversed, as an Appeals Court has upheld the patents in question.

The initial ruling that voided Myriad's patents relied on a novel interpretation of what was being patented. Patents on natural substances are allowed if the process of obtaining them is transformative, meaning the end result differs significantly from the original, natural state. In order to do genetic testing, the judge reasoned, it didn't matter which particular DNA molecule was obtained or in what manner—what you needed was the information conveyed by the gene, in terms of its protein sequence, not a specific piece of DNA. And that information is a natural product, which can't be patented unless it was transformed in some way. Since the genetic test doesn't involve any transformations, then the patents were invalid. Since many other gene-focused patents relied on this sort of information, rather than the actual DNA, this decision seemed to place many of them at risk.

We noted this was a rather novel interpretation of gene patents, and it clearly went against the initial decision on the topic by the US Patent and Trademark Office, as well as decades of practice since that decision. But to a certain limited extent, it has been adopted by the Appeals Court, which did throw out some aspects of Myriad's patents.

The aspects of the patents that didn't survive this latest round of scrutiny focus on what happens once you obtain a sequence from a test subject. At that point, to determine whether there might be any significant mutations, it's standard procedure to compare this sequence to one from a person who does not have mutations in the BRCA genes. The results of this comparison an essential part of the genetic testing procedure, and the comparison was included in some of Myriad's patents. The Appeals Court, however, accpeted the earlier ruling, which concluded the comparison was a information-focused, mental process, and thus wasn't eligible for patenting.

That, however, was the only part of the patents that didn't survive. Myriad's patents covered a way to test for chemicals that could be effective at slowing the growth of cells that carry BRCA mutations. Again, this was a standard laboratory procedure: grow cells in a culture dish, add the compound, and determine whether it influenced the trajectory of growth. Even though this is a very common approach to looking for cancer therapies, the court ruled it was transformative, and thus patentable. Although this only applies to cells carrying BRCA mutations, the ruling raises the risk that companies could patent the same procedure for any of the hundreds of genes associated with various cancers, so it wouldn't be surprising if something similar ended up back in court in the future.
Are genes patentable?

But the key part of the ruling focused on the patentability of genes. Here, the court focused on the process of isolating the DNA sequences of the genes. Normally, the genes reside on the cell's chromosomes, which are too clumsy to work with. So, instead, the patents focused on various methods of isolating smaller pieces of the genes that are easier to work with. As a result of these methods, the court ruled, the DNA sequences are chemically transformed, as they are no longer part of the long DNA polymer that makes up the chromosome. This process, it concluded, is sufficiently transformative to make it patent worthy.

The end result of this decision is that the patents stand, which allows Myriad to continue its monopoly on the genetic tests. The ruling, however, contained some awkward reasoning, a stinging dissent, and a half-hearted concurrence, all of which suggest that there may be significant wiggle room for attacking the patents by a different legal route.

The ruling focuses on how having a different arrangement of bonds in the DNA that is isolated is enough to distinguish it in its natural state. But the court was faced with briefs that suggested this was a dangerous line of reasoning, since elements like lithium are reactive enough that they only exist naturally as part of a chemical compound. Does this mean that someone can patent pure lithium? The court indicated the answer is no, because "elemental lithium is the same element whether it is in the earth or isolated." That would also seem to be true of a gene whether it is in the body or isolated, as the dissent pointed out; the decision doesn't elaborate on where it sees a difference.

The partially concurring opinion also stumbles on this point. In it the judge concludes that short fragments of the gene with a clear purpose are probably patentable on the grounds of their utility. Larger fragments of a gene, however, are too big to be useful, and more closely resemble the gene's natural state. So, beyond some completely undefined size point, the judge would probably rule that genes cannot be patented. The only thing that prevents him from doing so is the long history of allowing gene patents.

The dissent is critical of the patents in other ways. For example, it notes that the full sequence of BRCA wasn't even known when the patents were filed; large stretches of sequence were simply filled in with a generic symbol instead of the usual As, Tc, Cs, and Gs. "An almost incalculably large number of new molecules could be created by filling in those gaps with almost any nucleotide sequence," judge William Bryson wrote, "and all of those molecules would fall within the scope [of the patent]."

The dissent also notes that the allowing the patent to cover the isolation of the BRCA gene raises questions about whether anyone that sequences a human genome would be violating it. Necessarily, that process would involve the purification of the relevant DNA; the only thing it might not involve is the specific analysis of the BRCA sequences, but the ruling had already thrown those patents out.

So although the Myriad patents will stand for now, it's clear that there's not unanimous agreement about what, precisely, is appropriate for patenting. Which raises the prospect that a different legal approach, focusing on different patents, might get a more favorable reception.

Fuck

This Article is as simple and provocative as its title suggests: it explores the legal implications of the word fuck. The intersection of the word fuck and the law is examined in four major areas: First Amendment, broadcast regulation, sexual harassment, and education. The legal implications from the use of fuck vary greatly with the context. To fully understand the legal power of fuck, the nonlegal sources of its power are tapped. Drawing upon the research of etymologists, linguists, lexicographers, psychoanalysts, and other social scientists, the visceral reaction to fuck can be explained by cultural taboo. Fuck is a taboo word. The taboo is so strong that it compels many to engage in self-censorship. This process of silence then enables small segments of the population to manipulate our rights under the guise of reflecting a greater community. Taboo is then institutionalized through law, yet at the same time is in tension with other identifiable legal rights. Understanding this relationship between law and taboo ultimately yields fuck jurisprudence.

<click the title for the full text>

'Sleepy market town' surrounded by ring of car cameras

A small market town has become the first place in Britain to be encircled by a surveillance system tracking the movements of all motorists, amid protest from civil liberties campaigners.

By Murray Wardrop

Despite low levels of crime, police are installing a network of automatic number plate recognition (ANPR) cameras around historic Royston, Herts.

Police claim the devices will help catch criminals as Royston lies close to the borders of three counties and is the juncture of several main roads.

However, opponents claim the scheme is “grossly disproportionate”, an invasion of residents’ privacy and an unlawful expansion of Britain’s Big Brother state.

The system records the number plates of all vehicles passing through the cameras, logging their details in national database for up to five years.

The pressure groups Big Brother Watch, Privacy International and No CCTV have written to the Information Commissioner’s Office challenging the legality of the cameras.

Daniel Hamilton, director of Big Brother Watch, said: “It is such an arbitrary and intrusive method. To do this in what is essentially a sleepy market town is ridiculous.

“Logging the movements of tens of thousands of innocent people living in the area is grossly disproportionate to the crime fighting abilities of the system and an abhorrent invasion of people’s privacy.”

The groups claim that the scheme breaches the Data Protection Act because the police’s purposes for installing it do not amount to a lawful justification.

The seven cameras in Royston, which has a population of 15,000, have been funded by the local council and business groups in the area.

Inspector Andy Piper, Hertfordshire Police’s ANPR manager, said: “On first sight, the ANPR coverage of such a low crime town as Royston may seem an unusual choice, but ANPR works both as a deterrent and a detection tool.

“When we look at the bigger picture in terms of Hertfordshire, as well as nationally, the position of the cameras makes a lot of sense strategically to target those criminals travelling into the county on the main roads in that area – not to mention counter-terrorism."

He rejected the campaigners’ complaints claiming that the cameras are “entirely lawful”.

The cameras surrounding Royston will record the number plate of every vehicle passing them and check it against a series of databases.

Police are then sent alerts if the vehicle is untaxed, uninsured, or suspected of involvement in a crime.

ANPR has been used since the 1990s, particularly on main roads and motorways across Britain, however, it has never been used to monitor all points of entry to a single town or city.

It has never been the subject of parliamentary legislation, oversight or debate despite the fact that the records of each car’s movements are stored on a national database for two years, and a further three if the number plate is connected to a crime.

Police claim the system has helped secure thousands of criminal convictions and that nine in 10 residents surveyed in Royston said they supported the use of ANPR.

Are Internet Explorer users dumb?

By Doug Gross

A survey used tests offered through Web searches or in online ads to measure the IQ of browser users.

(CNN) -- Are users of other Web browsers smarter than the people who use Microsoft's Internet Explorer?

A new survey doesn't quite say so. But it sure as heck suggests it.

The survey by AptiQuant, a Vancouver-based Web consulting company, gave more than 100,000 participants an IQ test, while monitoring which browser they used to take the test.

The result? Internet Explorer users scored lower than average, while Chrome, Firefox and Safari users were slightly above average.

And users of the more obscure Camino and Opera browsers, as well as those using Explorer with Chrome Frame (a plug-in designed to let users view emerging HTML5 content), had what AptiQuaint called "exceptionally higher" IQ levels.


Those numbers, it should be noted, probably aren't very scientific. The field of test-takers was self-selecting -- people who chose, on their own, to take an IQ test instead of a scientifically selected study group. They found the test through Web searches or ads the company placed online.

The report suggests that people using Explorer, the built-in, default browser for Windows-based computers, may be more resistant to change. A similar study in 2006 showed users on the then-current IE browser scored above average.

Internet Explorer is the world's most popular browser, with about a 43% share, according to StatCounter. Firefox has just under 30%, and Google's Chrome has 19%, according to a report from May.

Users of Internet Explorer 6, released in 2001, scored the lowest on the tests, at just over 80. Users of Opera, the Norway-based browser, scored the highest at well over 120. (What AptiQuant called its complete results included a bar graph showing the scores, but didn't appear to have text giving the exact numbers.)

IQ scores have a "population mean" of 100.

If this all smacks of a little good, old-fashioned Microsoft hate, the language the company uses in its report doesn't do much to downplay that.

"It is common knowledge that Internet Explorer Versions 6.0 to 8.0 are highly incompatible with modern web standards. In order to make websites work properly on these browsers, web developers have to spend a lot of unnecessary effort ...," said the report from AptiQuant, which offers online tools for employers to measure employee, and potential employee, aptitude.

"Now that we have a statistical pattern on the continuous usage of incompatible browsers, better steps can be taken to eradicate this nuisance."

What do you think? Cheap shot or telling results? Let us know in the comments.

House Committee Approves Bill Mandating That Internet Companies Spy on Their Users

by Rainey Reitman

 

Despite serious privacy concerns being voiced by both Democratic and Republican leaders and by thousands of digital rights activists using EFF's Action Center, this afternoon the House Judiciary Committee voted 19 to 10 to recommend passage of H.R. 1981. That bill contains a mandatory data retention provision that would require your Internet service providers to retain 12 months' worth of personal information that could be used to identify what web sites you visit and what content you post online. EFF had previously joined with 29 other civil liberties and consumer privacy groups in signing a letter to the Committee members that condemned the bill as a "direct assault on the privacy of Internet users."

EFF Senior Staff Attorney Kevin Bankston had this to say about today's vote:

The data retention mandate in this bill would treat every Internet user like a criminal and threaten the online privacy and free speech rights of every American, as lawmakers on both sides of the aisle have recognized. Requiring Internet companies to redesign and reconfigure their systems to facilitate government surveillance of Americans' expressive activities is simply un-American. Such a scheme would be as objectionable to our Founders as the requiring of licenses for printing presses or the banning of anonymous pamphlets. Today's vote is therefore very disappointing, but we are especially thankful to GOP Representatives Sensenbrenner, Issa and Chaffetz, who chose principle over party-line in opposing this dangerous tech mandate. We hope that bipartisan opposition will grow as the bill makes its way to the House floor and more lawmakers are educated about this anti-privacy, anti-free speech, anti-innovation proposal.

Please help us defeat this legislation before it is made law by contacting your Representative today.

Norway’s Premier Vows to Keep an Open Society

By MICHAEL SCHWIRTZ

OSLO — The prime minister of Norway acknowledged on Wednesday that his country had fundamentally changed as a result of the attacks on a youth camp and government complex last week, but he vowed to protect the culture of openness that is a source of Norwegian pride.

The attacks have prompted officials to start reassessing Norway’s policy on public security, which seemed defined by a belief that bad things happen elsewhere. Anders Behring Breivik, a self-described Christian crusader who has admitted to the attacks, appeared to face few obstacles when he detonated a car bomb on a busy government plaza last Friday, killing 8 people, then traveled 19 miles and took a ferry to the youth camp on the island of Utoya, where he slaughtered at least 68 people.

“It’s absolutely possible to have an open, democratic, inclusive society, and at the same time have security measures and not be naive,” Prime Minister Jens Stoltenberg told reporters in Oslo. “I think what we have seen is that there is going to be one Norway before and one Norway after July 22,” he said. “But I hope and also believe that the Norway we will see after will be more open, a more tolerant society than what we had before.”

Mr. Stoltenberg announced that the government would create a commission independent of the police to investigate the attacks as well as law enforcement agencies’ response to them.

The police have come under fire for the seemingly slow pace of their response. It took commandos about 90 minutes to reach the island, a delay that critics say likely cost dozens of lives. Helicopters were unavailable, and police had to commandeer civilian boats to reach the island.

Police officers from the precinct in Honefoss, close to Utoya, offered new details about the operation in a news conference on Wednesday.

Havard Gasbakk, the duty commander at the precinct, said that 10 commandos took two civilian boats to reach the island. His colleague Magne Rustad said that one of the boats encountered engine trouble but that it did not cause significant delays. By the time police officers arrived Mr. Breivik seemed satisfied with the extent of his killing. They found him standing with his hands behind his head, his weapons thrown to the ground.

Mr. Breivik’s ability to avoid detection in the months and weeks leading up to the attacks has puzzled some. Though he spent months holed up on a farm he had rented north of Oslo, accumulating weapons and building his bomb, all while writing inflammatory anti-Muslim commentary on blogs, officials said he remained successfully under the radar.

A Norwegian security official with knowledge of the investigation said that Mr. Breivik had appeared on a list of buyers from a Polish chemical company the police were investigating, but that his activities appeared legal at the time.

“Normally these kind of people make an error,” said the official, who requested anonymity. “But he didn’t.”

The police are still trying to determine whether Mr. Breivik had any help in planning the attacks. He has stated that he is part of an organization called the Knights Templar, which he said had cells active in other countries, but investigators have challenged that claim.

“So far we don’t have any evidence of the cells, either in Norway or in Britain,” Janne Kristiansen, the head of Norway’s domestic intelligence service, told the BBC. Ms. Kristiansen also disputed an assessment made by Mr. Breivik’s lawyer on Tuesday that his client was likely insane.

“I would be surprised if this person was insane,” Ms. Kristiansen said. “I mean he’s calculating, he’s focused, he’s been going on with his plan for years, and this is not what I have learnt a person who is insane will do.”

Man Photographing Grandson In Park Deemed Suspicious By Police And Media

By Carlos Miller

The older, white man was seen photographing children in a public park in Idaho, so it didn’t take long for an overprotective mother to chase him off.

She then called the cops, who in turn alerted the media, who quickly posted articles warning citizens about this dangerous man lurking in the park with his camera, running off after being confronted.

It turns out, the man was just photographing his grandson.

And the only reason he left the park was because the woman was yelling at him.

So police had to redact their statement to the media.

This is how LocalNews8 originally reported the story.

Pocatello Police are warning people of a suspicious man spotted taking pictures of children at Ammon Park.

Police say parents spotted the man photographing their kids, and when they confronted him the man ran off.

He is described as an older white man with white hair and a beard. He was wearing a western-style button-down shirt and blue jeans and was driving a tan/brown van.

If anyone has information about this man, police would like them to call police dispatch at 234-6100.

And this is how they explained it afterward in the updated version.

Lt. Paul Manning said the man in question called in the Pocatello Police Department himself, saying he was at the park taking pictures of his grandson. The man also said that he did not run away, but simply walked away from a woman who had gotten very close to him and was yelling at him. Manning said police are no longer worried about the man and he is not suspicious.

The hysteria of adults photographing children in public has reached epidemic proportions.

Earlier this week, we reported on a New York man who was threatened by a mom's boyfriend, then warned by cops not to take photos of the woman's kid, even though it was never proven that he had taken photos of her kid.

And before that, a pair of photographers were told they were not allowed to photograph children swimming in the frog pond at Boston Common, which Boston Common later apologized for on its Facebook page.

And earlier this year, New Jersey lawmakers tried to pass a law that would have made it illegal to photograph children in public without parental consent.

Last year in the United Kingdom, a man was accused of pedophilia for photographing his son in a mall.

In 2008, a UK man was called a "pervert" for photographing his own kids in a park.

If parents are so worried about pedophiles, then they should look within their own families or circle of friends, not the stranger with the camera.

According to Wikipedia, which always cites their research:

Offenders are more likely to be relatives or acquaintances of their victim than strangers.^[98] A 2006–2007 Idaho study of 430 cases found that 82% of juvenile sex offenders were known to the victims (acquaintances 46% or relatives 36%).^[99][100]

We have to accept the fact that kids are part of society. If you take them out in public, there's a chance they might be photographed. Just as any adult might be photographed.

The real issue is how these parents become aggressive towards photographers as we have seen.
I'm not a parent but I know some parents speak boldly about what they would do if they caught somebody photographing their kid.

I can assure them that I would not back down if confronted. I guarantee that. I'll even wait for the cops to get there while videotaping the whole interaction.

But I do try to avoid photographing kids for this reason. And frankly, unless it's a good photojournalistic photo (or if I'm with family and friends), I have no desire to photograph  kids anyway.

But I will also not be the one to run away if confronted by one of these self-righteous parents.
And I doubt I'm alone.

So only time will tell before one of these parents gets arrested for assault.

Below is a screenshot of the LocalNews8 story in case they also remove it from their site.

Wal-Mart Goes Nuclear Over Chicken Necks; Newlyweds Lose House; Husband Deported

By IULIA FILIP

BIRMINGHAM, Ala. (CN) - Newlywed shoppers claim Wal-Mart's false accusation that they tried to steal $2.90 worth of chicken neck bones caused the wife to be falsely arrested and lose her job, her husband to be deported, and both to lose their car, all their possessions and their house - though Wal-Mart's security video showed they had paid for the damn chicken bones.

Mary Hill Bonin sued Wal-Mart and several of its managers in Jefferson County Court.
Bonin says the imbroglio ensued when she went shopping at the Adamsville Wal-Mart on July 1, 2007, with her husband of 2 months, who was not yet a U.S. citizen.

They used the self-checkout counter to save time.

Bonin says the scanner would not register the $2.90 worth of chicken necks, so she asked a Wal-Mart employee for help. The employee checked the machine and told her "it's okay," according to the complaint.

The Bonins left and showed their receipt to the greeter and door guard, who accused them of stealing the neck bones. According to the complaint, things got out of hand pretty fast:

"Plaintiff told these employees to look again as the item was on the bottom of the receipt and therefore accounted for. The security guard started screaming and asked to see the identifications of the plaintiff and her husband. The security guard screamed at the plaintiff and her husband saying they were going to be deported. The security guard, in overly loud voice, stated plaintiff and her husband were illegal and what were they doing in this country. Plaintiff asked for the assistant manager. The security guard answered by saying plaintiff and her husband were going to jail."

Bonin and her husband, "Ricky," say they offered 4 times to scan the chicken bones again, and asked the Wal-Mart guards to look at the security video "if they thought they did something wrong. Plaintiff told them the camera would show that they scanned the items purchased."

The guard refused to look at the video, but an assistant manager did.

The complaint continues: "The assistant manager said in presence of plaintiff and her husband: 'I see where she scanned it, I see where it's been rung up.' Plaintiff responded: 'I did scan it, I told you.' Ricky, plaintiff's husband said I'll pay for it again if you want me to. The assistant manager then said to the security guard: 'Well what do you want to do?' The security guard said he wanted to put plaintiff and her husband in jail."

When the security guard found that Mary Hill Bonin had worked at another Wal-Mart, he called that store and informed it "that she was being charged with a Theft of Property in the Third Degree," even though the assistant manager already had told him that the chicken bones had been bought and paid for, the Bonins say.

Overruling the assistant manager, the Wal-Mart guard called police, who handcuffed man and wife, led them out through the store that way and threw them in jail.

The alarming complaint continues:

Mary Hill Bonin was held on charges of Theft of Property in the Third Degree.

Adamsville Wal-Mart is believed to have called INS and had Mary Hill Bonin's husband deported. Mary Hill Bonin was denied bail and was not taken before a magistrate. Wal-Mart and Adamsville police failed to make a proper investigation causing Mary Hill Bonin to be arrested and to remain in jail without probable cause. On the date of the arrest, on July 1, 2007, the security officer for Adamsville Wal-Mart, called Wal-Mart in Alabaster accusing plaintiff of shoplifting or theft, a crime of moral turpitude and slanderous per se. This act of calling the Alabaster Wal-Mart by the Loss Prevention Officer of Adamsville Wal-Mart, was intentional, with malice, and made with the intention of causing the plaintiff to suffer with a bad reputation or to suffer consequences of being labeled a thief. ...

"As a result of being in jail and being accused of being a thief, plaintiff Mary Hill Bonin lost her home, her car, all of her personal belongings and her husband was deported. Mary Hill Bonin seeks punitive damages for loss of income, loss of personal property, lost profits, lost time and imprisonment, libel and slander, mental anguish, intentional infliction of emotional distress, false arrest, malicious prosecution, slander, negligence and conversion." And she wants Wal-Mart enjoined from searching and accusing customers without proof.

After all the false charges were dropped, Mary Bonin says, Wal-Mart refused to refund the $2.90 she had paid for the neck bones.

The Bonins are represented by Lois Beasley-Carlisle, with Carlisle & Carlisle.

The “Graduated Response” Deal: What if Users Had Been At the Table?

Deeplink by Corynne McSherry

Co-authored by Eric Goldman

 

As was widely reported last week, several major internet access providers (including, very likely, yours) struck a deal last week with big content providers to help them police online infringement, educate allegedly infringing subscribers and, if subscribers resist such education, take various steps including restricting their internet access. We’ve now had a chance to peruse the lengthy “Memorandum of Understanding" (MOU) behind this deal. Turns out, as is often observed, the devil is in the details – and they are devilish indeed.

Let’s start with the people taking credit: major content owners, service providers, and some government officials, principally New York Attorney General Andrew Cuomo. But guess who wasn’t invited to the party? The millions of subscribers who will be governed by the deal—the same subscribers who elect the politicians, buy the content owners’ goods and pay subscription fees to the internet access providers (which are likely to go up as administration costs are passed on – the UK’s graduated response system was estimated to cost about $40 per subscriber). Given that subscribers weren’t consulted, it’s probably not surprising that this deal is not in their interests.

Here’s some of the biggest problems with what resulted--and some ideas on what subscribers should demand of the system they’ll be paying for:

Who’s in Charge? The MOU calls for the creation of a new organization, called the Center for Copyright Information (CCI), to administrate the six-strikes system. CCI will be governed by a six-person executive committee comprised of representatives from content owners and internet access providers. Throwing a bone to subscribers, a three-person advisory board will include members “from relevant subject matter and consumer interest communities,” who will be given the chance to speak up whenever the executive committee asks. This possible advisory presence for subscribers is completely inadequate. Given they are the whole point of the MOU, subscribers deserve seats at the table as voting members of the executive committee.

“Mitigation” Measures and Independent Review: Internet access providers can punish accused subscribers by interfering with the subscribers’ connectivity, including by slowing transmission speeds, temporarily restricting web access for “some reasonable period of time,” and conditioning web access on completing a “meaningful copyright education program.” These mitigation measures can be imposed solely on the basis of the content owners’ assertions, without a judge ever determining that the subscriber did anything wrong.

Internet access has become an essential service in the digital age. Thus, just as we restrict the power of utilities to turn off services to their customers, we should not allow content owners to cause internet access providers to degrade or suspend their services without adequate due process.
The MOU does create a process designed to protect subscribers from unfounded accusations and punishment, but it’s hardly due process. Consider some of the procedural protections that subscribers might have sought if they had been at the bargaining table:

• The burden should be on the content owners to establish infringement, not on the subscribers to disprove infringement. The Internet access providers will treat the content owners’ notices of infringement as presumptively accurate--obligating subscribers to defend against the accusations, and in several places requiring subscribers to produce evidence “credibly demonstrating” their innocence. This burden-shift violates our traditional procedural due process norms and is based on the presumed reliability of infringement-detection systems that subscribers haven't vetted and to which they cannot object. (The content owners’ systems will be reviewed by “impartial technical experts,” but the experts’ work will be confidential). Without subscribers being able to satisfy themselves that the notification systems are so reliable that they warrant a burden-shift, content owners should have to prove the merits of their complaints before internet access providers take any punitive action against subscribers.
• Subscribers should be able to assert the full range of defenses to copyright infringement. A subscriber who protests an infringement notice may assert only six pre-defined defenses, even though there are many other possible defenses available in a copyright litigation. And even the six enumerated defenses are incomplete. For example, the “public domain” defense applies only if the work was created before 1923--even though works created after 1923 can enter the public domain in a variety of ways.
• Content owners should be accountable if they submit incorrect infringement notices. A subscriber who successfully challenges an infringement notice gets a refund of the $35 review fee, but the MOU doesn’t spell out any adverse consequences for the content owner that make the mistake – or even making repeated mistakes. Content owners should be on the hook if they overclaim copyright infringement.
• Subscribers should have adequate time to prepare a defense. The MOU gives subscribers only 10 business days to challenge a notice or their challenge rights are waived (a subscriber might get an extra 10 business days "for substantial good cause"). This period isn’t enough time for most subscribers to research and write a proper defense. Subscribers should get adequate time to defend themselves.
• There should be adequate assurances that the reviewers are neutral. The MOU requires that reviewers must be lawyers and specifies that the CCI will train the reviews in “prevailing legal principles” of copyright law – an odd standard given the complexity of, and jurisdictional differences in, copyright law. We’re especially interested in the identity of these lawyers, and why they are willing to review cases for less than $35 each (assuming the CCI keeps some of the $35 review fee for itself). Perhaps there will be a ready supply of lawyer-reviewers who are truly independent. Given the low financial incentives, another possibility is that the reviewers will be lawyers tied—financially or ideologically—to the content owner community. To ensure that the reviewers remain truly neutral, reviewer resumes should be made public, and checks-and-balances should be built into the reviewer selection process to ensure that the deck isn’t stacked against subscribers from day 1.

Education or Propaganda? The MOU repeatedly emphasizes subscriber education as one of its main goals. Unfortunately, this education won’t offer a very balanced view of copyright, at least if the current version of the CCI website is any indication. That website currently is full of scare-mongering rhetoric decrying the ill effects of so-called “content theft” and stressing the security risks of P2P. As the site is further developed, the executive committee should reject the rhetoric and look instead to the numerous online resources that provide a balanced and nuanced view of copyright law, helping to inform subscribers about their rights as well as their responsibilities when it comes to creative works.

Transparency: The MOU contemplates ongoing evaluation of the system through a variety of reports. That seems like a good idea, but neither subscribers nor the general public get to see or comment on those reports. Similarly, the statement of “prevailing legal principles” used to instruct reviewers also should be made public so that subscribers know how reviewers are interpreting U.S. copyright law. Simply put, if subscribers are supposed to treat the system as credible, they need enough information to determine that the system actually is credible.

Conclusion: This MOU has been in development for years, and we imagine the parties will be reluctant to revisit it. But it has yet to be implemented, which means there’s still time for the parties (and their friends in government) and to address the deficiencies of their proposal from perspective of the subscribers who’ll be paying for it. This deal is never going to be good for subscribers (nor for the artists who won’t see one more red cent as a result of it) -- but it sure could be better.

What the 1930s fashion industry tells us about Big Content's "six strikes" plan

By Timothy B. Lee
 
Does the "Copyright Alerts" system announced by major copyright holders and ISPs earlier this month run afoul of antitrust law? That possibility was first suggested to us by law professor James Grimmelmann. We decided to pursue the question, and our investigation led us to an unexpected direction: the Depression-era fashion industry.

High-end women's fashion during the 1930s was dominated by a trade organization called the Fashion Originators' Guild of America. Then, as now, clothing wasn't eligible for copyright or patent protection. But the guild established an elaborate system of privately enforced quasi-copyright protection for fashion designs. Retail outlets wanting to carry merchandise from guild members had to agree not to carry merchandise from manufacturers that created knockoffs of members' designs.

The system included regular inspections by guild representatives to verify that retailers were complying with the rules. Retailers caught selling knockoff merchandise could be banned from buying clothing from guild members, and members caught selling to blacklisted retailers faced stiff fines.

Retailers and the Federal Trade Commission challenged the system under antitrust laws. In 1941, the Supreme Court upheld the FTC's position, holding that the system "constituted an unfair method of competition" under antitrust law.

Does similar reasoning apply to the "copyright alert" system that major ISPs and content companies announced earlier this month? Mark Patterson, a law professor at Fordham University who specializes on antitrust law, told Ars that the system could be vulnerable to an antitrust challenge similar to the one the FTC made against the Originators' Guild.

Extrajudicial tribunals

The similarities are striking. The alerts system, like the Originators' Guild's enforcement system, is an effort to fight unauthorized copying of incumbents' creative works. The Supreme Court described the Originators' Guild as an "extra-governmental agency" that "provides extrajudicial tribunals for determination and punishment of violations, and thus trenches upon the power of the national legislature." The same could be said of the review process envisioned by the Copyright Alerts system.

"Intellectual property law strikes a balance," Patterson said. "What the agreement in the Originators Guild case did was try to break up that balance by creating a new IP right and also by creating this whole private enforcement mechanism."

In an e-mailed statement, the Motion Picture Association of America's Dan Robbins rejected the comparison. He told Ars that the 60-year-old Originators' Guild case "deals with an entirely different situation. More far reaching efforts have been held perfectly lawful under the antitrust laws." He pointed to endorsements from the White House and other public officials as evidence that the system passes legal muster under antitrust laws.

"The courts and enforcement agencies have indicated that collaborative efforts to help educate and protect against intellectual property infringement are procompetitive," he said. For example, he cited a 2000 opinion by the United States Court of Appeals for the Second Circuit, which stated that "no one but a copyright violator can gain by denying to copyright holders the right to engage in cooperative efforts to enforce their copyrights against a common infringer."

Patterson acknowledged that the six-strikes system is designed to enforce existing rights under copyright law rather than create a new IP right. But he argued that this aspect of the Originators' Guild case wasn't essential to the Supreme Court's holding in Originators Guild. He says that the Copyright Alerts system "doesn't create a new right, but it creates its own enforcement mechanism. It disrupts the balance that copyright law has struck in a couple of ways."

For example, the copyright alert system shifts the burden of proof to an accused subscriber, forcing her to prove that she did not infringe copyright law. That's the opposite of how things work in the traditional court system, in which the burden of proof rests with the accuser. "From a lawyer's point of view, the allocation of the burden of proof is huge," Patterson said. The system also requires the defendant to pay for the privilege of defending herself, which is at odds with ordinary court rules requiring the plaintiff to pay.

Patterson expressed surprise that the parties to the agreement didn't seek advice from regulatory authorities before announcing the Copyright Alert system. Both the Department of Justice and the Federal Trade Commission provide guidance on this kind of question. But Robbins told Ars that the movie and recording industries didn't seek formal regulatory guidance because they are confident the system is legal. And, he said, "the actual agreement was vetted by Administration officials—including at the Department of Justice—before the White House endorsed the program."

A long shot

Theoretically, a wide variety of parties—the Department of Justice, Federal Trade Commission, state attorneys general, and private plaintiffs—have standing to challenge the Copyright Alerts system on antitrust grounds. But political and resource constraints make it unlikely that any of these parties will act. The Department of Justice is apparently out since it was already consulted by the White House prior to the agreement's announcement.

The FTC is an independent agency, so on paper it has discretion to pursue antitrust cases without the approval of the Obama Administration. But Patterson said it "doesn't seem very likely" that the FTC will do so. Nor are state attorneys general likely to act. "For many, maybe all of them, politics plays a role," he said. "You don't want to pick an unpopular case."

What about private parties? Patterson said that private parties have to overcome procedural obstacles that government officials would not. Government officials automatically have standing to sue under antitrust laws, whereas private parties need to show that they've been harmed.

"It's not clear that a court would view the prevention of (alleged) copyright infringement as an injury," Patterson said. "On the other hand, a court might also say that the injury was not the inability to infringe, but the inability to choose among ISPs that had different anti-infringement policies. It's an argument that a plaintiff could make, but I don't know whether it would succeed."

Don't Talk To Police

How to stop cybercrooks: take their pals to court

By Noah Shachtman

The best way to stop the tide of global cybercrime may be to sue the pants off the hosting companies and Internet Service Providers Online that are backing the crooks.

That’s the central conclusion of my policy paper, out today from the Brookings Institution. (You can find a very condensed version in Sunday’s Washington Post.)

No one knows exactly how big the cybercrime underground is. But it is huge. According to the British government, online thieves, scammers, and industrial spies cost UK businesses an estimated $43.5 billion in the last year alone. Crooks-for-hire will infect a thousand computers for seven dollars—that’s how simple it’s become. Sixty thousand new malicious software variants are detected every day, thanks in part to a new breed of crimeware that makes stealing passwords about as hard as setting up a webpage. Even the Pentagon’s specialists are worried, noting in their new cybersecurity strategy that “the tools and techniques developed by cyber criminals are increasing in sophistication at an incredible rate.”

Top US officials keep bleating about a digital “Pearl Harbor.” But if we’re not careful, the Internet could be in danger of looking like the South Bronx, circa 1989—a place where crooks hold such sway that honest people find it hard to live or work there.

But there are ways to begin sidelining these crooks. First and foremost: target the relatively small number of companies that support this massive criminal underground. There are more than 5,000 Internet service providers around the globe; according to the Organization for Economic Cooperation and Development, half the world’s spam traffic comes from just 50 ISPs. A recent study of mass e-mail campaigns showed that three payment companies processed 95 percent of the money those scams generated. When the Silicon Valley-based McColo hosting company was taken down, worldwide spam dropped 65 percent overnight.

These companies facilitate criminal enterprises, whether knowingly or not. And, unlike the criminals themselves—who hide behind disposable e-mail addresses and encrypted communications—it’s no mystery who these firms are. The independent research group HostExploit, for example, publishes a list of "the worst of the worst" hosting companies and networks.

Yet Internet Service Providers and carrier networks that move data across the globe continue to do business with these crooked firms. There’s no economic incentive to do otherwise. After all, the hosting company that caters to crooks also has legitimate customers, and both pay for internet access.

So here’s my idea for providing that incentive—turn the criminal ecosystem on the scammers and thieves. We should enable victims of cybercrime to sue the worst of the worst hosting companies for the damage their crooked customers cause. Here’s how it might work:

• Take an independent list of bad hosts, like HostExploit’s.
• Once the roster is published, a listed company would have some time (two weeks, say) to either drop their illicit customers—or explain why it doesn’t belong in the rogues gallery.
• If the company complies (or explains itself sufficiently), then it is granted safe harbor from any lawsuit that might arise from the harm generated by the spammers, phishers, or botnet herders it once helped.
• If the hosting company fails to comply, however, it becomes open to liability lawsuits. The company has already been warned that it’s facilitating harmful activities and has been given a chance to correct its negligent behavior.
• If that same company ignores the warnings and appears on the worst-of-the-worst list again, the firm’s ISP should also be liable. (Of course, the provider should be given at least as much time and opportunity to address the problem.)

For the plan to make any kind of sense, the publisher of the rogues gallery would have to be crystal clear about how it reached its conclusions—and what a company could do to get itself off. The list could only cover a few, few universally recognized crimes, like theft, fraud, and criminal trespass. In other words: this wouldn’t work for politically inflammatory speech or copyright infringement; they’re too open to abuse and overly broad interpretation. And because the legal precedents are so confusing, it’ll probably take an act of Congress to put it all in place (a tall order, considering those jokers can’t even figure out a way to pay our debts).

Even if that happens, this plan won’t help in all cases. Crooks will still be able to turn to so-called “bulletproof hosting” services, which promise to keep customers’ content online no matter how many threats or complaints are received. Or they can relocate to hosting companies in places like China and Russia. Still, the United States isn’t such a bad place to start. Twenty of HostExploit’s 50 worst are American.

Such a system gives ISPs enormous incentives to disconnect criminally connected hosts, even if it means a temporary dip in revenue. Unlike a lot of the plans making their way through Congress (or already on the books) this one provides a clear standard for bad behavior, and a clear path for leaving the rogues gallery. It applies pressure on the broader ISP community to weed out the worst-of-the-worst—without heavy-handed government intervention.

In my year of research for this paper, I kept finding parallels between modern cybercrime and piracy of the 18th and 19th Centuries. Both were pervasive. Both were seemingly beyond the reach of the law. Both were employed by individual crooks as well as big state militaries. Both relied on their economic support systems.

“In all of the notable eras of piracy,” University of South Carolina historian Donald Puchala writes (PDF), “relationships between pirates and those who abetted their projects amounted in effect to conspiracies of greed. The relationships were symbiotic: pirates could neither accomplish their ends nor convert their booty into profits without the aid of their protectors; for their part, the protectors could not so readily and splendidly enrich themselves without the booty brought in by the pirates.”

One of the turning points in global attitudes toward piracy occurred when pirates began to threaten the economic interests of the states that previously sponsored them. The pirates picked fights with allies, hijacked friendly ships, and, as a result, made new enemies in cities like London and Paris. And when the governments decided to definitively retaliate, one of the first steps they took was to shut down the markets for pirate booty. The most effective way to target the hijackers was through their economic support system.

Maybe there’s a chance of seeing a similar shift online. If ISPs start seeing rogue hosting companies as financial time bombs instead of as paying customers, it would represent a huge step forward in marginalizing cybercriminals globally. For that to happen, some hosts may have to go to court.

<the problem here is two-fold. first of all in the modern age society does not admit that everything everyone around you does has more of an effect on the flow of your life than whatever you do. despite that clear mathematical fact, you are expected to take full responsibility for everything that happens to you as though you were in direct control of it. now you're increasingly also supposed to take responsibility to anything related to your actions. this means in the first case (besides showing a distinct lack of respect for truth and reality) you are being held to an impossible standard and there is no credit, or blame, where it is due. you are required to debase and enslave yourself to the workings of cruel fate and the arbitrary decisions of the idiots around you. at the same time, with this extra addition to the problem, everyone is now required to police everyone else. so, not only will you have to take responsibility for things that happen to you that had nothing to do with your actions, but you are going to have to take responsibility for anything that happens AROUND you... it also means everyone else is not only free, but required to be in your business keeping you on whatever they consider to be the straight and narrow path for their own sake.>

Squatters Unite! McMansion Squatter Becomes Part of National Movement

by Christopher Maag

Did you see the story about Kenneth Robinson, the man in Texas who is squatting in a McMansion worth $350,000 and says he can buy it legally for just $16? If you missed it, check out this story by ABC News. It’s hilarious. And the neighbors are ticked!

Surprise! He’s Not Crazy.

What the neighbors don’t know is that Robinson is using a little-known legal claim called “adverse possession” that has proven very successful in the past. Here’s the basic version of how it works:

1) Someone owns a property, whether it’s a house, a condo or just a strip of ground.

2) If the owner isn’t using the property, somebody else can come in and use it, without the owner’s permission.

3) After some amount of time (in Texas it’s three years; in New York State it’s ten), the squatter can claim ownership free and clear.

People have been making adverse possession claims for decades. The most famous cases happened on the Lower East Side of Manhattan in the 1980s and ’90s, when artists, punks and homeless people squatted in vacant buildings and brownstones.

Under the law at the time in New York State, people could take possession of a property if they lived there for ten years and made efforts to “cultivate and improve” the property, says Kathy Zalantis, a real estate lawyer with Silverberg Zalantis in White Plains, NY. That’s why you saw people who did this during the 1980s and ’90s mowing the grass, planting trees and gardens, and making structural improvements to the buildings themselves, Zalantis says.

Now, interest in adverse possession is growing again. Across America, hundreds of thousands of homes are sitting empty. If you live in New York or have visited since 2008, you’ve probably noticed all those big empty buildings that were constructed during the housing boom but never quite finished, and are now sitting empty. Zalantis says she’s receiving a big surge in phone calls from people who have taken up residence in empty spaces (yes, squatting), including one just this Wednesday.

Most of the calls are from people taking advantage of the foreclosure crisis by moving into vacant houses, apartments and condominiums where the foreclosure process has stalled in the courts, Zalantis says. Now they’re living rent-free. And they’re checking to see if they can take permanent ownership of the place.

“I am getting a lot of inquiries from people who would like to try it,” says Zalantis, “probably because with all of the foreclosures going on, and the banks aren’t pursuing foreclosure on these properties, people have been maintaining [the units], paying the electric bills, for years.”

Zalantis’ advice to those people trying to get a great deal on a New York apartment? Don’t hold your breath. New York State tightened its adverse possession law significantly in 2008, she says. Gone is the idea that working to “cultivate and improve” the property will do you any good. Instead, the new law requires squatters to take actions that would notify a “reasonably diligent” property owner that someone else is sleeping in their house.

Does that mean squatters must send the owners a letter? Build a deck or a swimming pool? Landscape the yard? The law is so new, and so untested, nobody knows.

“I don’t really know because there is no case law,” Zalantis says. “You have to do it openly. If you sneak in a locked house and you’re just living there, is that putting the real owner on notice?”

Also, getting a “free” New York apartment isn’t really free. First, you’d have to live in the place for at least ten years (although you wouldn’t have to pay rent, which wouldn’t be so bad). And then you’d have to go through the legal process of trying to claim adverse possession.

That means a very expensive legal case, Zalantis says. Because the law is so new and because each case is so unique, there’s virtually no way to reduce the cost of litigation by settling before trial. Which means a court trial, discovery, and lots and lots of lawyers billing by the quarter hour.

The Other Option: Just Take the Dang Thing

There’s a simpler way to take possession of a vacant home: Just do it. Robert Robinson is co-founder of Take Back the Land, a national movement of people laying claim to foreclosed properties. The group has moved homeless people into vacant homes in Miami and Chicago.

In Rochester, New York, Take Back the Land is helping Catherine Lennin stay in her house. She was evicted after her husband died, and Take Back the Land teamed up with an international housing activist group called Alliance of Inhabitants to help her move back in and keep it.

Take Back the Land doesn’t bother with anything complicated like “adverse possession,” Robinson says. They argue that with so many homeless people and so many vacant homes, matching the two together is simply the ethical thing to do.

“I think the times are different in this country,” Robinson says. “If the government can’t recognize the universal right to housing, then we have to take it.”

Of course, just taking it in New York City is often a more difficult matter than in other places. In Miami, occupying a home is rather simple—just call the utility company to get the electricity on and you’re set, Robinson says. But in New York, ConEdison won’t turn the lights on to a big multistory building until it receives an expensive bond as insurance against nonpayment.

“It costs so much to run a building in New York. You have to pay the oil, the taxes,” says Dina Levy, director of organizing policy at the Urban Homesteading Assistance Board, which grew out of the Lower East Side squatting fights of the 1980s. “It raises the question of whether, without government intervention, can it be affordable to the people who need the housing. But then, if you bring in the government is it really a squat, because squatting is illegal.”

All of which means that Robinson’s route looks pretty easy by comparison. He only has to wait three years, not ten. True, he’s living without electricity or running water. But his method of taking over a McMansion has been tried—and has succeeded—many times before.

Red site! Copyright group proposes "traffic lights" search results

By Matthew Lasar

Copyright holding groups are always coming up with creative ideas for the classification and ranking of content. Here's another that hadn't occurred to us. Why not ask search engines to attach "red light" symbols next to sites categorized as a "risk" and put green ticks next to sites deemed safer?

That's exactly what a United Kingdom music copyright royalty collection organization proposes.

"Traffic Lights provide a visual indication to users approaching an unlicensed site that the site is facilitating copyright theft," explains the Performing Rights Society for Music's new plan (PDF).

"The traffic light—a green tick or red cross—would appear next to a link to the site in question. The traffic light can be applied wherever the site is, not just those in the UK, increasing the ability of consumers to protect themselves from sites hosted abroad and increasing their confidence in legitimate sites."

As the graphic below indicates, when a cursor hovers over a "red tick" site, a message would pop up. "This site links to unlicensed media," it warns.

The PRS for Music Traffic Signal plan; horrible compression artifacts in the original
PRS for Music
Nudging consumers

Whatever you think about PRS for Music's idea, the timing for it is quite good. The UK's government is expected to respond fairly soon to its telecom regulator's recommendations for implementing the Digital Economy Act, with its controversial "three strikes" system for copyright infringers.

The government-backed "Hargreaves report" was very critical of the process that led to the Act, describing it as "lobbynomics." But it also noted that consumers are bewildered by the controversy over "legal" versus "illegal" content.

"In a world where it is possible to listen to music free on the radio; free or by subscription through a computer or smartphone from a streaming service; or by continuing to put a purchased or borrowed CD in a player, the concept of 'ownership' and 'purchase' has itself been redefined," wrote its author, journalism professor Ian Hargreaves.

"For the browsing consumer, it is not always obvious whether a music service is providing copyright material illegally—unless the supplier chooses to put the skull and crossbones on its mainsail, like Pirate Bay, the Swedish download service established in 2003, which today claims five million users, in spite of the fact that its founders received jail sentences in 2009."

So PRS for Music seeks to simplify the problem. "At present there is contradictory information presented to consumers searching for music and other entertainment online," the proposal explains. "Traffic lights is a solution which addresses this uncertainty with the intended impact that it nudges consumers in a legal (and safe) direction."
A full view

One big question is how sites would be "ticked" or classified as red or green. The color would be tallied on the basis of how many copyright infringement notices and takedown requests the site has received, the report discloses. Each site would then be given a "score"—the basis of its red or green light status.

"If a site has ignored a number of takedown requests, then we believe that it is fair to categorise the site as a risk and show a warning signal to consumers that are approaching it," the document adds. "In effect, traffic lights provide an incentive structure so that sites are encouraged to license content legitimately as well as penalising sites which refuse to take down illegal content."

Another challenge would be how to get search engines to implement this scheme. The PRS scheme doesn't address that problem. Instead it observes that the red/green distinction is already implemented in another context—the colors are already used by Internet security services to warn users away from sites that may contain Trojan or phishing scams. "This Traffic Lights proposal extends these services to inform users of potential copyright issues with a site, as well as other unfair or unsafe trading practices."

The plan also anticipates concerns from users. "Traffic lights will not be accepted unless their source is trusted and independent," the plan acknowledges. And so it proposes an "independent authority body" to oversee the idea. This entity would be authorized to take "a full view of the behaviour of a site, backed up by numbers and evidence of malpractice."
Moral majority

Who would be represented on this body? The proposal doesn't say, but its closing statement offers a hint about the makeup. "Traffic Lights has a valuable role as a consumer education initiative," the missive concludes. "We would like to work with ISPs, Internet security software providers, rightsholders, and other partners, to deliver this solution as soon as practicably possible."

We pinged PRS with a number of questions about this idea, especially the makeup of the proposed independent authority. PRS Office staff member Barney Hooper got back to us about its possible internal structure:

"In terms of the 'central and independent body' this could be a regulatory body (such as an Ofcom) or be independent of government or sit within a government department—all to be decided, discussed and debated," Hooper explained. "We wanted to stress at this early stage that the key thing was that for this proposal to work, there would need to be an independent body for the plan to be credible. It would need to liaise with all rightsholders and also anti-virus software providers/ISPs etc to ensure the supply of information was accurate and timely."

The proposal doesn't currently include any kind of appeals mechanism, we noted.

"You are absolutely right and it would need an appeals mechanism within it as well," Hooper acknowledged.

There's also the question of how takedown notices will be tabulated. Here's the answer: "In terms of takedown communications in the UK, I believe these currently sit with the Anti-Piracy Units of the both the BPI and also our own antipiracy unit."

Finally, we expressed some skepticism about the overall effectiveness of the idea. The PRS proposal posits the existence of a "Moral Majority" for whom Traffic Lights will work. The system will perform the crucial role of "establishing a distinction between good and bad in the minds of users, which we hope will be enough to deter 90 percent of users from accessing problem sites."

No doubt the right light tick would scare some consumers away. But what about rebellious types, we asked, who might see a red tick as a badge of honor?

"Oh yes," Hooper agreed. "I think there will be people that deliberately go for a red light. We're realistic about this proposal—this will not eradicate piracy. What it will do is signpost to the vast majority of people who want to find legal/licensed content a great way of doing so. It will help promote those sites that have chosen to go down the route of paying creators and performers and the more traffic they experience the better for content owners and also for their own sites in terms of search rankings."

The PRS document does point out that the red light/green light system will create a "vital" distinction will provide the "bedrock" for "an escalating series of measures to deal with the remaining determined offenders."

Lowercase theories, uppercase Theories, and the myth of global cooling

by Maggie Koerth-Baker

“Fifteen hundred years ago everybody knew the Earth was the center of the universe. Five hundred years ago, everybody knew the Earth was flat, and fifteen minutes ago, you knew that humans were alone on this planet. Imagine what you’ll know tomorrow.”

Men In Black‘s Agent Kay isn’t exactly a great public philosopher, but I think he does do a good job of summing up the reason why some people don’t like the idea of applying the science of climate change to the realm of political policy. Science changes, after all. Who’s to say that 100 years from now we won’t find the results of 21st century climate modeling as ridiculous as a map of a flat Earth?

This argument isn’t totally off-base. Scientific theories are frequently overturned by new evidence. But, just as often, the new evidence changes one part of a theory, while leaving the big picture intact. That’s because scientists use the same word–”theory”–to describe two very distinct classes of ideas. Gravity is a theory. But so is the existence of Gliese 581g–a wobble in the light given off by a distant star which may, or may not, turn out to be a planet. One of these things is not like the other. Of the two, new evidence is much more likely to disprove the existence of Gliese 581g.

Scientists still study what gravity is and how it works. It’s a living theory, not a cold, unchanging edifice. In fact, there’s a lot of weird, little anomalies that tell us we don’t have this gravity thing totally figured out just yet. But as new evidence comes in, it tends to refine the details, not demolish everything we thought we knew. Einstein revolutionized the theory of gravity, but he didn’t make apples start to fall up.

With that in mind, I want to tell you a story. There are a lot of climate myths out there—misconstrued facts and frank deceptions used to discredit good climate science. But one of those myths is particularly interesting to me, because it’s a very good example of the difference between little lowercase “theories” and uppercase “Theories”. The myth of global cooling is the kind of thing that happens when people get the two mixed up.

Let’s start at the beginning, with a quick summary of the myth itself.

According to the standard version of this story, everybody in the 1970s thought that the Earth was actually getting colder, and that we were in for a new Ice Age. Animals like armadillos were migrating southward, fleeing the encroaching cold. The Arctic ice pack was unexpectedly thick. Scientists warned of massive crop failures, and wrung their hands over the fate of the millions who would die in our frozen future. They urged governments to take action, either by stockpiling food, or with more disturbingly drastic measures–such as intentionally melting the Polar ice caps. All the same people who, today, tell us that the Earth is heating up were, once upon a time, singing a very different tune. The implicit message about scientists that people get from this story: You just can’t trust ‘em.

It would be nice if the myth of global cooling were a fringe belief. But it’s not.

Influential, big-name talkers push the story. Lots of average people listen to them. The author Michael Crichton worked it into his last novel. Senator James Inhofe told the tale in Congress. Rush Limbaugh believes in the myth. So does George Will. And, consequently, so does at least one of my uncles.

But they’re all wrong.

In reality, global cooling was never a broadly accepted Theory. It’s reasonable to assume that a good chunk of Americans never heard about it at all. And global cooling never had the support of most climate scientists, let alone scientists in other disciplines, like biology and public health, which are linked to climate change in many important ways today.

We know all of this thanks to the work of two scientists, Thomas Peterson and William Connolly, and a journalist, John Fleck. In 2008, they published a detailed history of this myth in the Bulletin of the American Meteorological Society. So that’s another thing that makes the myth of global cooling stand out from the pack. Unlike a lot of myths, the path from fact to fiction is very well-documented.

A Myth is Born

The truth is, for a short period in the mid-1970s, the idea of global cooling was somewhat trendy–as measured in newspaper and magazine stories, but not scientific evidence.

In 1975, both Newsweek and Time ran articles about the coming Ice Age. The next year, National Geographic published a more detailed story about climate science, in general. It touched on global cooling as one of several possibilities for the future of climate.

But all of these stories were based on the same small handful of peer-reviewed papers. In fact, Peterson, Connolley, and Fleck found that, between 1965 and 1979, only 7 peer-reviewed papers were published supporting the idea of global cooling. (In contrast, during that same time period, 44 published peer-reviewed papers found that the Earth was getting warmer. And 20 were neutral on the subject.)

All those papers were the work of scientists who were, for the most part, trying to understand the basics of how the climate system worked, not expanding and refining an already accepted big idea. These were, in other words, lowercase “theories”.

Cause and Effect

The issue was inputs.

These are the variable factors–like levels of greenhouse gases, or particles of dust and soot in the atmosphere–that can impact how the natural processes of the climate system play out. In the 1970s, scientists didn’t understand variable inputs very well. They knew, based on ice cores and tree rings, that the Earth was probably coming due for a cold snap. In fact, the Northern Hemisphere had been cooler than average between 1940 and 1970. And they knew that particulate matter–the smoke of volcanoes, the soot of factories, the obvious air pollution–could reflect light from the sun and have a cooling effect.

But they also knew about the greenhouse effect.

This is the almost 200-year-old idea at the heart of the Theory of climate change. For a quick refresher, the greenhouse effect describes the cycle of heat transfer that keeps our planet from becoming a frigid ball of dirt, no more habitable than Mars. First, heat from the Sun passes through our atmosphere. Some is absorbed by the ground and oceans, and some of that heat gets reflected back towards space. But the gasses in our atmosphere don’t let all that reflected heat out. Instead, atmospheric gasses bounce most of the heat back down again. It’s kind of like turning on a laser pointer in a hall of mirrors. Because of the greenhouse effect, Earth is able to trap enough heat to sustain life-as-we-know-it. We’ve known about this effect since 1824.

Climate change is really just an exaggeration of the greenhouse effect. Carbon dioxide is better than a lot of other gasses at bouncing heat back down to Earth. The more carbon dioxide in the atmosphere, the more heat gets trapped, and the higher our global average temperature rises. We’ve known about the way rising carbon dioxide levels enhance the greenhouse effect since 1896.

By the 1970s, climate scientists knew cars, power plants, and other aspects of modern energy use were releasing unprecedented amounts of greenhouse gases into the atmosphere. The question everybody was trying to answer: Which input was more powerful? In other words, would particulate matter beef up a natural cooling trend to the point that the greenhouse effect was merely a pleasant distraction? Or, would the impact of carbon dioxide and its greenhouse gas cousins outpace both natural and anthropogenic cooling, and take us to a warmer world?

The Way It’s Supposed To Work

In the 1970s, nobody really had a solid answer to those questions. In a given year, one scientist would publish a paper that supported cooling, while another two or three would publish results that favored warming. And journalists would report on all those papers.

In 1975, the same year that Newsweek and Time warned of a coming Ice Age, Peterson, Connolley, and Fleck found that The New York Times actually ran two climate science stories. The first was titled “Scientists Ask Why World Climate is Changing; Major Cooling May be Ahead.” The second: “Warming Trend Seen in Climate; Two Articles Counter View that Cold Period is Due.”

If you saw both Times stories, you’d have a pretty good idea that scientists weren’t totally in agreement on this issue. But not all journalists provided that kind of context. Every peer-reviewed climate science paper was like a part of a mountain range. The only way to make sense of the topography was to zoom out, and look at the whole thing. But, some journalists had a tendency to report on each new study that came out as though it were an isolated hill of fact in the middle of an empty plain.

One group actually did review the big picture of climate science in 1975. That was the U.S. National Academy of Sciences. The NAS is sort of like a cross between a professional organization and a medieval court adviser. Not all the scientists in the United States are members. Instead, current members elect new ones, based on the quality, importance, and influence of their research. Think of it as the Science Hall of Fame. Getting in is a big deal. But it’s more than just symbolic. That’s because the NAS plays a role in American politics. Most politicians aren’t trained scientists. Even if they are, they can’t be expected to be experts on everything. So, instead, when politicians need to know what’s going on in a particular field of science, they turn to the actual experts at the NAS. Every year, the Academy puts together many reports summarizing the state of scientific research on a wide array of topics and offers their advice about what politicians should do with that information.

The 1975 NAS report on climate science reflects the confusion that surrounded the field at that time. In fact, the introduction flat out says, “…we do not have a good quantitative understanding of our climate machine and what determines its course. Without the fundamental understanding, it does not seem possible to predict climate…” There wasn’t anything close to a scientific consensus on climate in 1975. But that was about to change rapidly. Over the next five years, research methods improved, more papers were published, and all those little theories began to add up to a single big Theory–the Earth was getting hotter.

By 1979, it was already clear that the effect of greenhouse gases had a bigger impact than the effect of dust particles. When the NAS came back to the subject of climate science that year, the state of research had changed enough that their summary was now very different. Instead of uncertainty, the 1979 NAS report emphasized a message that was, basically, the same as what we still hear today: The Earth is warming, and that fact should not be ignored. The popular press liked the story of global cooling. But their interest in that story didn’t reflect what scientists were actually thinking. There was no flip-flop of science here.

Instead, what happened in the 1970s was that science worked the way it’s supposed to work.

Researchers identified an important question. They studied it. They figured out how to study it better. And, slowly, between roughly 1970 and 1980, they came up with a broad, generalized answer. They went from a jumble of lowercase theories to an uppercase Theory.

Since then, the uppercase Theory hasn’t changed. No new evidence has surfaced to challenge it. Instead, researchers have busied themselves with the details—studying the lowercase theories within climate change to try and make that big Theory more specific. What they’ve learned has made them more and more certain that the big Theory is correct. So, in a way, the scientific consensus certainly has changed since 1975. But it changed from, “We don’t know,” to “Climate change is definitely happening.

Judge: Pirate Party Name-Ban Decision Stands

Back in March the Russian Justice Ministry turned down the Pirate Party’s attempt to officially register. The decision was made because the authorities feel that the word ‘pirate’ could be connected with criminal acts. Now a Moscow judge has backed that decision, leading the party to decide on a new name.

That “Pirate Party” is not allowed as a political party name in Russia might seem odd at first.
The obvious intent was clear – to prevent groups which have the promotion of criminal acts at their core, such as the Pedophile Party, the Kill-all-Jews Collective, or Kidnappers Anonymous – but these are unambiguous terms.

When it comes to the term “Pirate” then there are increasingly two meanings. The first is that of the ‘classic buccaneer’ as famously portrayed by Johnny Depp, and often found acting off the east coast of Africa.

The second is a label more often thrown at someone accused (often wrongly) of sharing a data file.
However, the Russian Government clearly hasn’t heard of the second definition, which is odd when you consider that events surrounding sites like Allofmp3.com became an international issue for them a few years back.

As a result of this name misconception, the name Pirate Party was rejected. Furthermore, the party didn’t get all the formal notices from the Justice Ministry which would enable them to deal with the rest of the paperwork. So, in an attempt to move things on, they sued, and earlier this month, according to the Russian Pirate Party, the Judge ruled that the March rejection counts as the missing paperwork, and they should find another name.

The current frontrunner is Bez nazvaniya (“unnamed”) but other options include “Pirrate Party of Russia” and “Pira7e Party of Russia” according to a blog post by chairman Pavel Rassudov, which ends with the following plea:

I would like to conclude with stating that our principles, ideas and our website remain unchanged. I ask the public, journalists and all reasonable people to continue calling us “Pirate Party of Russia”

Fine by us, Pavel….

Judge calls $1.5M file-sharing judgment "appalling," slashes to $54,000

By Nate Anderson
 
Thong underwear sold by Jammie Thomas-Rasset after her first trial to pay her legal bills

Jammie Thomas-Rasset, the first US resident to have the file-sharing lawsuits against her go all the way to trial and verdict back in 2007, “lied in her trial testimony," said federal judge Michael Davis today. And her “past refusal to accept responsibility for her actions raises the need for strong deterrence."

But that deterrence won't come courtesy of a jury, which last year found Thomas-Rasset liable for $1.5 million dollars—$62,500 for each song she was accused of sharing on the KaZaA peer-to-peer network. That case was her third time through a trial; the first two trials had ended with Thomas-Rasset on the hook for $222,000 and $1.92 million, respectively. In each case, Judge Thomas has altered or set aside the jury's verdict, and he did so again this morning.

Davis has found that the $1.5 million award was unconstitutional; he slashed it to $54,000—$2,250 per song. And even then, the amount was "a higher award than the Court might have chosen to impose in its sole discretion.”

Davis has done this before. After the second trial and its $1.92 million verdict, he also reduced the award to $54,000, but he elected not to do so on constitutional grounds. That decision led to Thomas-Rasset's third trial, but today's constitutionally based decision should end the matter at the District Court level. If this case is pursued—and we suspect it will be—the trial phase will end and a federal Appeals Court will take over.

Sections of the verdict are worth quoting in full; they illustrate Judge Davis' deep common sense about the case and provide a worthwhile framework for thinking about similar P2P cases.


The Court concludes that an award of $1.5 million for stealing and distributing 24 songs for personal use is appalling. Such an award is so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable. In this particular case, involving a first-time willful, consumer infringer of limited means who committed illegal song file-sharing for her own personal use, an award of $2,250 per song, for a total award of $54,000, is the maximum award consistent with due process.

This reduced award is punitive and substantial. It acts as a potent deterrent. It is a higher award than the Court might have chosen to impose in its sole discretion, but the decision was not for this Court to make. The Court has merely reduced the jury’s award to the maximum amount permitted under our Constitution.

Davis had nothing positive to say about Thomas-Rasset, who he faulted for lying and for denying responsibility by “casting possible blame on her children and ex-boyfriend.” As for her argument that she caused no harm to the music industry, Davis “rejects her suggestion" and calls for a penalty in order to enforce copyright law, compensate the record labels, and “deter future copyright infringement.”

But Davis was at his most Old Testament when blasting the huge damage awards handed down.
There is no doubt that a multimillion dollar penalty is overkill to deter a private individual from obtaining free songs online… Although Thomas-Rasset played a role in the web of online piracy, she played a minuscule role… It cannot be that she must pay the damages caused by millions of individuals because she was one of two users caught, sued, and subjected to a jury trial… [Joel Tenenbaum in Massachusetts was the other.] This award constitutes the maximum amount a jury could award, consistent with the due process clause.

His $2,250 per song figure is three times the minimum statutory damages of $750, though Davis does acknowledge the difficulty of drawing exact lines between fair and unfair judgments. “Any specific dollar amount will appear to be somewhat arbitrary,” he wrote. “Why is an award of $2,251 per song oppressive while an award of $2,250 is not?" The "3x" multiplier seemed to him a fair one, as such multipliers are routinely used to punish willful offenses (the same amount was chosen in the Tenenbaum case when the judge likewise gutted that verdict).

Thomas-Rasset has made clear to me at her trials that she can't and won't pay even a reduced $54,000 amount, and she has apparently rejected music industry settlement offers that would have her pay even less. Where we go from here is therefore anyone's guess—but continued court action looks likely.

(Sidenote for copyright wonks: Judge Davis declined to include in his injunction against Thomas-Rasset a clause that would bar her from "making available" the songs at issue here. "The Copyright Act does not provide a making-available right," he wrote.)

Update: An RIAA spokesperson tells Ars, "We disagree with this decision and are considering our next steps."

Kiwi Camara, a lawyer representing Jammie Thomas-Rasset, called today's decision "an excellent result. I am sure that the recording industry plans to appeal; when they appeal, we will file a cross-appeal also."

As for Camara's one-time plan to file a class action lawsuit against the entire music industry, I asked him if that was still in the works. "As for the class action," he replied, "you know [Harvard Law's] Charlie [Nesson] and you know us—anything could happen!"

PayPal joins London police bid to financially starve "illegal" websites

By Matthew Lasar

PayPal has joined a music copyright association and the City of London police department's bid to financially starve websites deemed "illegal." When presented with sufficient evidence of unlicensed downloading from a site, the United Kingdom's PayPal branch "will require the retailer to submit proof of licensing for the music offered by the retailer," said the International Federation of the Phonographic Industry's latest press release.

The company will then "discontinue services to retailers in cases where licensing appears to be inadequate." The announcement comes with the requisite gung-ho statement from Carl Scheible, PayPal UK's managing director.

This shows that PayPal is "very serious about fighting music piracy," Scheible explains. "We've always banned PayPal's use for the sale of content that infringes copyright, and the new system will make life even harder for illegal operators. Our partnership with the music industry helps rights holders make money from their own content while stopping the pirates in their tracks."
Expeditious enforcement

MasterCard and Visa are already on board this initiative, originally unveiled in March. The process works like this: IFPI submits allegedly infringing websites to the City of London police department's Economic Crime Directorate. Once the division has "verified the evidence," it passes the information on to MasterCard, Visa, and now PayPal.

The card providers then "require the acquiring bank providing the retailer with payment services to produce evidence of appropriate licenses to sell music or cease providing those services to the retailer," IFPI explains. MasterCard has promised to respond to law enforcement requests "expeditiously."

According to the group, industry anti-piracy experts have also composed a set of "best practice procedures" for MasterCard and Visa "to distribute both internally and to banks that use their services, which help identify infringing websites and prevent them from being granted card payment facilities."

This alliance appears to be primarily targeted at sites based in Russia and the Ukraine. Getting banks to cut off credit card support was crucial to the crusade against Russia's AllOfmp3.com music download service several years ago (that, and forcing Russia to crack down on Allofmp3.com as a condition for joining the World Trade Organization).

In March, IFPI said that 24 suspect online music outlets had already been turned over to the cops. Looks like the trade association has gotten a 100 percent conviction rate for its trouble.

"Since the March announcement with MasterCard and Visa, their payment services have been withdrawn from 24 illegal music services," the latest announcement adds. And since then, IFPI investigators have submitted the details of another 38 sites "suspected of infringing copyright on a grand scale."

We pinged Alex Jacob, IPFI media contact, for a list of these sites. "I think it's probably best that the City of London Police answer your question on the site names as they will know which are clear of any ongoing investigation," he explained. The London Police didn't reply to our inquiry.

In any event, now PayPal is part of the mix, and its involvement is applauded by the authorities.

"We are fully committed to proactive initiatives such as these where we work with the private sector to prevent offending, stop legitimate business services such as PayPal being exploited by criminals and minimise harm to entire business sectors such as the music industry," Detective Chief Superintendent Steve Head of the City of London Police added in the IPFI announcement.

"The benefits are palpable not only in terms of delivering an effective response to victims and the business community as a whole, but also in enabling the City of London Police Economic Crime Directorate to maximise our resources in tackling a wide range of criminality."
Your honor?

The real question is whether, at any time in this process, the City of London submits the evidence of infringement or some aspect of the process to a court for review. The ECD has a history of working with the Metropolitan Police Film Piracy Unit, long at the service of the movie industry's Federation Against Copyright Theft.

FACT aided UK law enforcement to prosecute the famous Filesoup file sharing site. The police eventually dropped that case, conceding that the legal basis for a criminal trial wasn't there.

But in this announcement, neither IFPI or the City of London police department mention any judicial body which the authorities consult on the "illegality" of a site. We asked IFPI's Jacob about this. Does any judge appear in the mix? Is there any judicial sign-off at any point in the process?

The answer:
The removals are considered by MasterCard, PayPal, and Visa and it is their commercial decision to terminate merchant accounts based on a request from the police and their own due diligence processes. The police check and verify all evidence submitted by rights holders.

UK PayPal public relations person Rob Skinner explained the procedure to us as follows:

"The way the new process works is that we will require proof from a seller of music via PayPal that they have the necessary licensing in place for the sale of music," Skinner explained. "In other words, we’re looking for proof of the right to sell, rather than proof of infringement, but we do also have a notification system for rights owners to report cases of alleged copyright infringement."

Back in March, we asked IFPI for details about those "best practices."

"As these include advice to help payment providers on how to identify signs of illegal activity," we were told, "you would not expect them to be published so that those engaging in such business could be aware of how to hide their activities."

The proposed PROTECT IP Act—with its provisions allowing the government to crack down allegedly infringing sites and search engines—has a court order mechanism and requires judicial sign-off. But by framing this issue as a private merchant dispute with a payment processor, the new scheme avoids the need for such oversight.