True Purpose of DRM: To Let Copyright Holders Have A Veto Right On New Technologies

A whole bunch of people have been submitting Ian Hickson's writeup on the true purpose of DRM. Given how many people have submitted it, perhaps you've seen it already, but there are some really good points in there. His main thesis is that the debates over DRM tend to focus on the wrong thing. The anti-DRM crowd points out that DRM does not and cannot stop copying. Supporters of DRM say that's not true. Hickson agrees that DRM does not stop copying, but he argues that the purpose of DRM has never really been about stopping copying, but about gaining control over software and hardware tools that play content:

The purpose of DRM is not to prevent copyright violations.

The purpose of DRM is to give content providers leverage against creators of playback devices.

Content providers have leverage against content distributors, because distributors can't legally distribute copyrighted content without the permission of the content's creators. But if that was the only leverage content producers had, what would happen is that users would obtain their content from those content distributors, and then use third-party content playback systems to read it, letting them do so in whatever manner they wanted.

He provides a few examples, such as how DVD players force you to watch "unskippable" ads, how services like Netflix can try to limit you from watching the same movie simultaneously on two devices, and how if you buy a movie on iTunes, and want to then watch it on a non-iPhone, you'll have to buy it again. As he notes none of those things are really about copyright violations.

In all three cases, nobody has been stopped from violating a copyright. All three movies are probably available on file sharing sites. The only people who are stopped from doing anything are the player providers -- they are forced to provide a user experience that, rather than being optimised for the users, puts potential future revenues first (forcing people to play ads, keeping the door open to charging more for more features later, building artificial obsolescence into content so that if you change ecosystem, you have to purchase the content again).

If you're wondering why copyright holders are soooooooo desperate to have anti-circumvention provisions in copyright law, this is why. In the past, we'd pointed out that it didn't make sense for the movie studios and record labels to be so focused on anti-circumvention/digital locks, since if people are violating copyright law (such as by reproducing or distributing copies), existing copyright law already covers that. So why add in a separate provision all about circumvention -- and then be so focused on making sure the same provision exists in all laws around the globe? It seemed silly, because the only "additional" benefit it seemed to be providing was to outlaw legal forms of copying, since everything else was already covered under existing law.

However, Hickson's argument explains much more clearly why anti-circumvention provisions are seen as an absolute necessity. It has nothing to do with copying, and everything to do with controlling the players so as to limit the kind of innovation they can provide. It's basically a de facto veto power over new technologies. And, really, that puts a bunch of other statements in context as well. Remember how former Copyright Register Ralph Oman was saying that new player technologies should be illegal until Congress approved them? Yeah, same basic thing.

All of this shows a legacy copyright industry that is so focused on holding back innovation so that they have a veto right and control over the pace of innovation. That, of course, is bad for the economy, bad for the public and bad for society. Innovation is important in growing the economy, and due to silly laws around DRM, we are purposely holding it back.

Mobile Phone Use Patterns: The New Fingerprint

Mobile phone use may be a more accurate identifier of individuals than even their own fingerprints, according to research published on the web site of the scientific journal Nature.


(A) Shows the trace of an anonymized mobile phone user during a day. The dots represent the times and locations where the user made or received a call. (B) Shows the same user’s trace as recorded in a mobility database. (C) Shows the same individual’s trace when researchers lowered the resolution of their dataset through spatial and temporal aggregation.

Scientists at MIT and the Université catholique de Louvain in Belgium analyzed 15 months of mobility data for 1.5 million individuals who the same mobile carrier. Their analysis, “Unique in the Crowd: the privacy bounds of human mobility” showed that data from just four, randomly chosen “spatio-temporal points” (for example, mobile device pings to carrier antennas) was enough to uniquely identify 95% of the individuals, based on their pattern of movement. Even with just two randomly chosen points, the researchers say they could uniquely characterize around half of the 1.5 million mobile phone users. The research has profound implications for privacy, suggesting that the use of mobile devices makes it impossible to remain anonymous – even without the use of tracking software.

For their research, they studied anonymized carrier data from a “significant and representative part of the population of a small European country.” In the study, the researchers used sample data collected between April 2006 and June 2007. Each time a user interacted with their mobile phone operator network by initiating or receiving a call or a text message, the location of the connecting antenna was recorded, providing both a spatial and temporal data point.

The dataset contained one trace “T” for each user, while each spatio-temporal points contained the region in which the user was and the time of the interaction. The researchers evaluated the uniqueness of each trace given a set of randomly chosen spatio-temporal points.

The data recorded user interactions with his or her phone – around 114 per month scattered across 6,500 mobile antennas. The data collected was highly effective in identifying individuals by their movements. Just four random points, were enough to uniquely characterize 95% of the users studied. ”

Using a complex mathematical and statistical analysis of that data, the researchers discovered that it is possible to find one formula to express what they call the “uniqueness of human mobility”: e 5 a 2 (nh). Roughly stated, the formula says that the more sparse the data becomes (such as among infrequent users, or in areas with fewer cell towers) the less accurate any individual trace is, and the more data points are needed to uniquely identify an individual.

“We show that the uniqueness of human mobility traces is high, thereby emphasizing the importance of the idiosyncrasy of human movements for individual privacy,” the researchers write. “Indeed, this uniqueness means that little outside information is needed to re-identify the trace of a targeted individual even in a sparse, large-scale, and coarse mobility dataset. Given the amount of information that can be inferred from mobility data, as well as the potentially large number of simply anonymized mobility datasets available, this is a growing concern.”

The privacy of mobile data is an increasing concern for privacy advocates and for lawmakers.

Two bills introduced last week in the House and Senate would require law enforcement to obtain a warrant before affixing a GPS device to a vehicle or collecting mobile geolocation data from third party service providers, Wired reported. And, in December, the U.S. Federal Trade Commission announced new guidelines for implementing the Children’s Online Privacy Protection Act (COPPA). Among other things, the changes expand the list of information that cannot be collected from children without parental consent to include photographs, videos and audio recordings of children and geo-location information.

“Unless you get parental consent, you may not track children and use their information to build massive profiles of online behavior,” said FTC Chairman Leibowitz.

The researchers who conducted the work on human mobility say that their work should further inform such legislation. ”These results should inform future thinking in the collection, use, and protection of mobility data. Going forward, the importance of location data will only increase and knowing the bounds of individual’s privacy will be crucial in the design of both future policies and information technologies.”

US - No, the Supreme Court is not Our Sole Remedy

by Thomas Woods

The Cato Institute has now joined the Heritage Foundation in telling Americans they’re not allowed to nullify unconstitutional laws — because, after all, that’s what we have the Supreme Court for. Plus, says Cato chairman Robert Levy, nullification hasn’t worked so well in the past, though he doesn’t give us an update on how 100 years of relying on the Supreme Court to safeguard our liberties has been going.

Levy does allow the states something, because the Supreme Court has graciously allowed them these things:

First, are states required to enforce federal laws and enact regulatory programs that Congress mandates? The answer on both counts is “No.”

In the 1997 case, Printz v. United States, the Supreme Court ruled that the federal government could not command state law enforcement authorities to conduct background checks on prospective handgun purchasers.

In the 1992 case, New York v. United States, the Court ruled that Congress couldn’t require states to enact specified waste disposal regulations.

Levy’s article is fairly conventional law school fare, a string of statements that such-and-such must be true because federal courts have said so. It is what I would expect to read from the Heritage Foundation, from John Marshall admirers, and from nationalists. There is nothing particularly libertarian about Levy’s analysis. The message is this: play by the rules. The rules have been laid down by people who despise you, but play by them.

If I am correct that the peoples of the states are the sovereigns in the American system, and I believe I have shown this to the satisfaction of a reasonable person, then the idea that there can be no state-level resistance to the federal government — even to the divinities on the Supreme Court — becomes obviously absurd. If the peoples of the states created the federal government and its subdivisions as their agent, how do they permanently lose the ability to stop their own creation from destroying them? Since when does the agent tell the principals what its powers are?

To say that the Supreme Court must decide constitutionality in the last resort is to beg all the relevant questions. To say that the Supreme Court has itself decided that it must be this arbiter is to take question-begging to quite an extreme. How can the Supreme Court, part of an agent of the states, have the absolutely final say, even above the sovereign entities that created it? As Madison explained in 1800, the courts have their role, but the parties to the Constitution naturally have to have some kind of defense mechanism in the last resort.

On these points, see my post “Is Nullification Unconstitutional?”

Levy then tries to claim that Jefferson and Madison couldn’t have meant what they clearly did mean, and what everyone at the time took them to mean. James Barbour noted in the Virginia General Assembly (which is where one must go for the intent of the Virginia Resolutions, in the same way that we look to the ratifying conventions for the original intent of the Constitution) that an unconstitutional law was null, void, and of no force or effect, and the General Assembly noted that where the federal government had adopted an unconstitutional and dangerous policy, the states were duty bound to prevent the enforcement of that law within their respective territories. To claim further that this meant that the states could carry out this duty only if all of them agreed is not permissible on the basis of what we read in the General Assembly debate.

As for Madison’s later claims that he had never meant to endorse nullification, etc., this is addressed in my Nullification FAQ and on pages 288-290 of my book Nullification. (Poor Madison even tried to pretend Jefferson had never endorsed nullification, until the draft resolutions of 1798 in Jefferson’s handwriting were shown to him and he was forced to withdraw his claim.)

Objections to nullification are addressed in some detail at NullificationFAQ.com, and that is once again where I direct readers.

I might also add that a faulty understanding of constitutional history is often at the root of the objections to nullification. There are conservatives — and amazingly, even some libertarians –who portray Chief Justice John Marshall as a hero. He is a hero if you like the federal government we have now. Otherwise, not so much.

This is precisely why I wanted (and recently added) a downloadable U.S. Constitutional History course at LibertyClassroom.com: to teach people the Constitution without all the Marshall/Hamilton/Webster accretions — in other words, to teach it in a way you will not learn it in any law school, which is committed to those accretions.

(And thanks to Kevin Gutzman, one of the professors in our constitutional history course, for discussing these matters with me.)

Canada - Police need wiretaps, not just warrants, to search text messages

OTTAWA -- Police need special wiretap orders -- not just ordinary search warrants -- to intercept cellphone text messages as part of criminal investigations, the Supreme Court of Canada ruled Wednesday.

In a 5-2 split decision, the court sided with wireless carrier Telus (TSX:T) by agreeing that text messaging is essentially another form of conversation and should receive the same protection to which private communications are entitled under the Criminal Code.

"Text messaging is, in essence, an electronic conversation," Justice Rosalie Abella wrote for the majority of the court. "Technical differences inherent in new technology should not determine the scope of protection afforded to private communications.

"The only practical difference between text messaging and traditional voice communications is the transmission process. This distinction should not take text messages outside the protection to which private communications are entitled."

The case arose out of Owen Sound, Ont., after the Ontario Superior Court granted police a general warrant that ordered Telus to turn over any text messages sent or received by two of its customers between March 18 and March 30, 2010. The warrant also compelled Telus to provide police with copies of the customers' texts every day for the following two weeks.

Unlike many other wireless carriers, Telus stores copies of all text messages sent or received by its subscribers in a computer database for 30 days.

The company argued that even though copies of the messages were kept in a database, police would still be "intercepting" the communication by seizing the texts and would therefore need to get a wiretap order, which is more difficult to obtain than a general warrant, because of privacy provisions in the Criminal Code.

The federal Crown said that would clog the courts with thousands of wiretap applications each year.

Telus lost its initial bid to quash the warrant and appealed to the Supreme Court. The company's lawyers argued police need wiretap authorization under the Criminal Code to seize private text messages.

"The intrusion on a person's privacy is identical whether the police surreptitiously listen in to your conversations while they are occurring or surreptitiously read copies of your private communications that are obtained directly from the means required for delivery of the communication," they said in written arguments.

The case split the court.

Justices Abella, Morris Fish and Louis LeBel said there needed to be a broad interpretation of the Criminal Code section that deals with authorizations for wiretaps to intercept private conversations, "to ensure that the general warrant is not used presumptively to prevent the circumvention of the more specific or rigorous pre-authorization requirements for warrants."

"The interpretation should not be dictated by the technology used to transmit such communications, like the computer used in this case, but by what was intended to be protected under Part VI" of the Criminal Code, Abella wrote.

Two other justices -- Michael Moldaver and Andromache Karakatsanis -- agreed for different reasons. They felt police failed to show there was no other provision of the Criminal Code or any other law they could use to obtain the text messages to justify the general warrant.

"The investigative technique in this case was substantively equivalent to an intercept," Moldaver wrote. "The general warrant is thus invalid."

Justice Thomas Cromwell and Chief Justice Beverley McLachlin also agreed that text messages are private conversations. But where they disagreed was over the notion that police had intercepted communications. Police only sought copies of messages kept in the Telus database, Cromwell and McLachlin wrote, not conversations as they were actually happening, so a general warrant was appropriate.

Canadians sent and receive billions of text messages each year, according to industry figures. Wednesday's ruling effectively sets new rules for how the authorities can access electronic conversations.

"It clarifies that the courts will approach new communications technology with the same eye towards protecting privacy as they do with old technology," Telus spokesman Shawn Hall said in a telephone interview.

"This will go a long way towards protecting Canadians' privacy, but still provide police access to communications with an appropriate degree of judicial oversight."

The Canadian Civil Liberties Association, which was an intervener in the case, also welcomed the ruling.

"We see it as a robust vindication of privacy rights in the digital age," said Abby Deshman, "and really upholding the privacy that we expect with traditional conversations over the phone and bringing that forward into an era of text messaging."

The case before the Supreme Court is one of several involving privacy concerns in an age of electronic communication.

Earlier this year, Ontario's highest court ruled it was OK for police officers to look through someone's cell phone if it is not password protected. However, the Court of Appeal for Ontario said a search warrant is needed if the phone has a password or is otherwise locked to anyone other than its owner.

The password case came after a man was arrested after a jewelry stall at a Toronto flea market was robbed, and police found pictures of a gun and cash as well as a text message about jewelry on his phone.

Giftedness Should Not Be Confused With Mental Disorder

by Allen J. Frances, M.D.

The 3-5% of kids who are particularly gifted are also at special risk for being tagged with an inappropriate diagnosis of mental disorder.

Marianne Kuzujanakis, MD, MPH is the perfect person to explain why. She is a pediatrician and a Director of SENG (Supporting Emotional Needs of the Gifted)- an organization dedicated to helping the gifted and their parents. She is also a co-founder of the SENG Misdiagnosis Initiative: https://www.sengifted.org/programs/seng-misdiagnosis-initiative

Dr. Kuzujanakis writes: " The 2010 American Academy of Pediatrics Task Force on Mental Health reported that 37% of children and adolescents either meet the DSM criteria for a mental health diagnosis or show some impairment in functioning. Diagnoses of ADHD and autism continue to rise."

"Pediatric primary care physicians do much of the psychiatric diagnosis and prescribe most of the psychotropic medicine- but a recent survey showed that only 10% felt adequately prepared by their training to do so. They see kids for very brief visits and many are too influenced by drug marketing (as are parents and teachers). Over-diagnosis and over-treatment are commonplace."

"Highly gifted children are a particular diagnostic challenge with errors that can occur both ways. When pediatric diagnoses are carelessly applied, gifted children are frequently mislabeled with ADHD, autistic, depressive, or bipolar disorders. Yet sometimes being gifted effectively hides these same conditions.”

"So, while some gifted kids are erroneously labeled and medicated for mental health disorders they do not have, others are unrecognized for learning or mental disorders they do have."

"And many gifted children are never identified as gifted. Wasting much of their day in unsuitable classrooms, they may behave in unacceptable ways. Despite giftedness being akin to a special need, funding for it is scarce and the needs of gifted minority and poor children are shamefully overlooked. Very few articles are found in the pediatric medical literature about giftedness."

"Teachers and physicians also receive minimal instruction on the identification and management of gifted children and the fact that they seem to be wired differently and have developmental trajectories that differ from the norm. Many gifted kids experience the world with heightened and vivid intensities and sensitivities that may be a big plus (allowing them to become creative artists, scientists, inventors, and humanitarians) but also can be a big minus (subjecting them to sometimes overwhelming emotions and worrisome and unacceptable behaviors.)"

"Normal giftedness can easily be confused with DSM mental disorder. Gifted kids may talk a lot, have high levels of energy, and be impulsive or inattentive or distractible in some settings –similar to symptoms of ADHD. It’s not unusual for gifted kids to struggle socially, have meltdowns over minor issues, or have unusual all-consuming interests – all pointing to an inappropriate diagnosis of autism. Often perfectionistic, the gifted are more likely to be introverted and may feel alone and alien in a world that doesn’t fully understand them."

"Giftedness is not always seen as a socially positive and valued trait. Many gifted kids are bullied, others underachieve to hide their abilities, and some experience anxiety and depression with increased risk for self-harm. As many as 20% may drop out of school."

"Here is some advice to parents, teachers, and medical professionals:

• Throw away pre-conceptions of what giftedness should look like or where giftedness is found. Giftedness is not always equivalent to high academic achievement, and isn’t limited to race, ethnicity, gender, or affluence. Gifted kids do sometimes have learning or mental health disorders.
• Throw away the idea that normal must be defined by a narrow set of criteria. Not everyone processes information and sensory inputs in the same way, nor does everyone develop along the same expected timeline. Variability does not automatically indicate a disorder. Be insistent that both weaknesses and strengths are equally acknowledged and supported.
• It is important to determine who is suffering with an observed behavioral issue – the child or those around him/her. Labels, treatments, and medications are meant to alleviate suffering in the recipients, not as a means to make those around them happy.
• It’s OK to not have all the answers. Take the initiative to find out more about giftedness and gifted misdiagnosis. Here are some valuable resources: http://www.sengifted.org/resources/resource-library/recommended-r...
• Seek out organizations like SENG, National Association for Gifted Children (NAGC), Davidson Institute, CEC-TAG, Uniquely Gifted, World Council on Gifted, Hoagies Gifted, and your state gifted associations for opportunities to learn more."

Thanks so much, Dr. Kuzujanakis. One of the disasters of the diagnostic inflation is that expectable and desirable individual difference is so often mislabeled as mental disorder.

Caution is particularly necessary in diagnosing kids. They are so developmentally labile and have such a short track record that diagnostic mistakes are frequently made and once made are extremely difficult to undo.

Georgia Court Censorship Order Threatens Message Boards Everywhere

Earlier this month, a Georgia Superior Court issued a breathtaking restraining order against Matthew Chan, the operator of a copyright troll criticism message board, holding him responsible for the posts of his users. As part of the Court’s reasoning, Judge Frank Jordan wrote:

As the owner and operator of the site, Respondent has the ability to remove posts in his capacity as the moderator. However, Respondent chose not to remove posts that were personally directed at [Petitioner Linda] Ellis and would cause a reasonable person to fear for her safety.

The Court used this as a basis to order Chan “to remove all posts relating to Ms. Ellis.” All posts, not just posts that might threaten Ellis, or even just those written by Chan. This woefully overboard restraint on speech not only threatens freedom of expression, it also ignores Section 230 of the Communications Decency Act, the legal cornerstone upon which all user-generated content websites are built.

Background: The Troll Went Down to Georgia

Chan operates Extortion Letter Info, a website dedicated to providing information for recipients of settlement demand letters about copyright infringements. It hosts forums, including some message boards (currently unavailable) that discussed Linda Ellis, the notorious poem copyright troll.

Ellis wrote an inspirational poem, The Dash, and its sentimental musings on the value of focusing on the important things in life resonated with quite a few people, some of whom posted it online on blogs and websites. The poem isn’t going to win the Nobel Prize for Literature, but it led to a career. Between gigs as a motivational speaker, Ellis has a side business of sending copyright infringement notices to alleged infringers, threatening the maximum statutory damages of $150,000 plus attorneys fees. However, she will settle her claims for infringement of the poem, which is available for free on her website, for a mere $7,500.

Eventually Chan and his message board got involved, and people began to comment about Ellis and her demand letters. As many copyright trolls have found, their tactics are often reviled and frequently criticized. As we understand it, many comments on the board were quite negative. According to Ellis, some of these posts, by Chan and others, went beyond the pale, and amounted to stalking and cyber-bullying. She went to a Superior Court in Georgia to get a restraining order against Chan.

Legal Analysis: The Court Order is Overbroad and Dangerous

Stalking and harassment are serious charges, and require a serious and well-reasoned response. The overbroad order is wrong because it violates the First Amendment and federal law.

Under the First Amendment, courts limit injunctions in restraint of speech to the rare circumstances when (1) the activity to be restrained poses either a clear and present danger or a serious and imminent threat to a protected competing interest, (2) the order is narrowly drawn and (3) less restrictive alternatives are not available.

Since the message boards are now down, we can’t read what the messages may have said. But the Court’s order cannot stand, even assuming that some posts fell below the level of protected speech under the strict true threat test: “A true threat is a serious threat and not words uttered as mere political argument, idle talk, or jest.” It has to be considered in context, and with “a commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”

Removing “all posts relating to Ms. Ellis” is neither narrowly tailored nor the least restrictive means of addressing any true threats. It fails the First Amendment test because of the collateral damage: it will take down constitutionally-protected criticism of the copyright troll and her demands for money. For example, Ellis complained that “there were vile posts of blasphemy.” While blasphemy is doubtless offensive to Ellis, it remains protected speech.

The Georgia Court’s overreaching order against Chan also contradicts federal law because it holds a service provider to account for users' posts. Section 230 protects websites that host content posted by users, providing immunity for a website from state law claims (including criminal law) based on the publication of "information provided by another information content provider."

There is no exception to Section 230 when the provider can remove content, but fails to do so. To the contrary, as the Fourth Circuit cogently explained in Zeran v. America Online, one of the first major Section 230 decisions,

[L]awsuits seeking to hold a service liable for its exercise of a publisher’s traditional editorial functions – such as deciding whether to publish, withdraw, postpone or alter content – are barred. The purpose of this statutory immunity is not difficult to discern. Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium.

While Georgia is not in the Fourth Circuit, the state Supreme Court has recognized and cited Zeran. Since Zeran, court after court has recognized the same principle: “so long as a third party willingly provides the essential published content, the interactive service provider receives full immunity regardless of the specific editing or selection process."

Instead, the responsibility lies with the speaker. Everyone who posted on the board is responsible for what they wrote, including Chan, though they also enjoy the rights to speak freely enshrined within the Constitutions of the United States and Georgia, including the right to anonymous speech.

The Court’s ruling, ignoring the safe harbor for a website’s editorial decisions, is dangerous because it threatens freedom of expression throughout the internet. All message board operators, and indeed all websites that host user content, have the ability to remove posts. Even message board moderators, often unpaid volunteers, have that ability as part of their job. If the decision were taken to mean that operators are responsible for whatever users post, websites will have no choice but to censor anything marginally questionable. Moderators, ironically a necessity to keep boards on topic and within the online community’s standards, will become hard to find.

Fortunately, this is not the law, and so the internet has been able to thrive as the most vibrant medium of expression the world has ever known. Hopefully the Georgia Court of Appeals will correct the trial court's mistake, and overrule the dangerous language in the Order.

GOP lawmaker seeks 'virtual Congress' with telecommuting plan

By Jennifer Martinez

Rep. Steve Pearce (R-N.M.) wants to create a "virtual Congress," where lawmakers would leverage videoconferencing and other remote work technology to conduct their daily duties in Washington from their home districts.

Under a resolution Pearce introduced on Thursday, lawmakers would be able to hold hearings, debate and vote on legislation virtually from their district offices.

While Yahoo CEO Marissa Mayer may have recently nixed the Web company's work-from-home policy to boost its performance, Pearce believes a remote work arrangement may benefit Congress and make lawmakers more accountable to folks in their home districts.

Pearce says the resolution would eradicate the need for members to jet back and forth from their districts to Washington each weekend. This would allow lawmakers to spend more time with their constituents rather than the armies of lobbyists from K St., he argues.

“Thanks to modern technology, members of Congress can debate, vote, and carry out their constitutional duties without having to leave the accountability and personal contact of their congressional districts. Keeping legislators closer to the people we represent would pull back Washington's curtain and allow constituents to see and feel, first-hand, their government at work," Pearce told The Hill in a statement.

"Corporations and government agencies use remote work technology; it’s time that Congress does the same," the New Mexico Republican said.

He introduced the same resolution during the last congressional session.

Tennessee Lawmaker Barrett Rich Proposes Outlawing Civil Asset Forfeiture

by Eapen Thampy

Tennessee Representative Barrett Rich (R-94) has introduced House Bill 1078. From the bill summary:

Generally, present law provides for forfeiture of assets in connection with criminal activity or other violations of law. This bill states that the rights of any owner or owners of property provided for in this bill will supersede and override all Tennessee procedures, statutes and regulations governing forfeiture of property to the state or any county or municipality, whether the property is real, personal, or in other form. This bill further states that to the extent any statute, regulation or procedure is in conflict with this bill, the conflicting provisions will be null and void.

This bill provides that no seizure of any property may be executed without first obtaining a seizure warrant issued by a magistrate who is popularly elected within the county where the seizure is to be executed. If the seizure warrant identifies locations in more than one county, then the magistrate issuing the warrant must preside in a court in one of those counties. Any officer with the statutory authority to arrest an offender will have the authority to request the issuance of a seizure warrant. Upon issuance of a seizure warrant, only the sheriff of the county in which the seizure is to be executed will have the power to seize any property, real or personal.

If a forfeiture warrant is issued, upon execution of the forfeiture warrant, all real property seized will be either sequestered and guarded against damage from third parties, or released to the owner or occupant for use and caretaking until the disposal of the property is resolved by the court. Any person entrusted to such use pending the hearing will be responsible for any loss due to damage caused intentionally or by neglect, or removal of contents subject to the seizure. All personal property seized will remain upon the real property where it was located according to the warrant. If the real property is also being seized, the personal property will be removed to a secure location under the supervision of the jurisdiction wherein the magistrate presides.

The owner or persons in possession of the property at the time of the seizure must receive full documentation of the warrant and a receipt particularly describing the property seized and its condition. The seizing officer will bear custodial liability for the safekeeping of the property throughout its possession until disposition by the court. The owner of the property, lessor thereof, or agents of either will have access to the property sufficient to assure the safety and security of the property at all stages of the holding of that property prior to the disposition ordered by the court.

The person or entity claiming ownership of the property that has been seized will have the right to an expedited recovery hearing upon a showing of potential loss of value if such expedited resolution is not accomplished. No forfeiture will be final nor will title or other indicia of ownership pass to the state or jurisdiction seeking forfeiture until:

(1) The owner of the property in question is prosecuted and convicted of the criminal acts which render the property subject contraband; or
(2) The property is deemed contraband on account of its nature by a court of jurisdiction, the magistrate of which is an elected office, after a hearing wherein any persons opposing any finding of contraband shall have due process to present a case why it is not.

Any property damage, spoilage, or loss of any criterion of value during the pre-hearing possession of the jurisdiction will be grounds for recovery of that damage by the owner or user, from the jurisdiction making the seizure, if the hearing finds in favor of the opponent of the seizure. Such recovery may be ordered by the court wherein the seizure hearing is held, or in a separate suit by the owner or other interested party after return of the property.

Phil Williams from NewsChannel 5 in Nashville reports:

Tennessee lawmakers are prepared to consider a major overhaul of laws that allow police to take cash off of drivers to fund their agencies.

One lawmaker said this may be the year for some serious reforms.

It all stems from NewsChannel 5′s two-year “Policing For Profit” investigation.

Rep. Barrett Rich’s bill, as drafted, would completely outlaw the practice known as civil asset forfeiture. That practice allows police to take people’s cash or property without charging them with a crime.

While Rich didn’t believe he had the votes to go that far, he said that there is an emerging consensus over other reforms to protect the innocent.

“Since I’ve put the bill in, I’ve had member after member after member wish to cosponsor the bill,” he told NewsChannel 5 Investigates .

Rich comes to the issue from the experience of having served as a Tennessee state trooper. The West Tennessee Republican himself did some interstate interdiction.

That’s the kind of enforcement activity that — for some agencies — has become more about making money than stopping drugs.

“When we went back and we watched NewsChannel 5 and we saw some of the issues that people have faced with civil forfeiture, the one thing that we see is that they are not actually given the opportunity to be heard by a real judge immediately,” Rich said. Phil Williams, Lawmakers Set to Debate ‘Policing For Profit’ Reforms, NewsChannel 5, 14 Mar. 2013.

Other prime co-sponsors who are supporting this legislation are: Tony Shipley, rep.tony.shipley@capitol.tn.gov , (615) 741-2886, Karen Camper, rep.karen.camper@capitol.tn.gov , (615) 741-1898Jeremy Faison, rep.jeremy.faison@capitol.tn.gov , (615) 741-6871G.A. Hardaway, rep.ga.hardaway@capitol.tn.gov , (615) 741-5625William Lamberth, rep.william.lamberth@capitol.tn.gov , (615) 741-1980Micah Van Huss, rep.james.vanhuss@capitol.tn.gov , (615) 741-1717Eric Watson, rep.eric.watson@capitol.tn.gov , (615) 741-7799. Rep. Vance Dennis, R-Savannah, has also been working on similar legislation.

New research: music piracy should not be a “concern for copyright holders”

European Commission study looks at 16,000 users across five countries.

by Cyrus Farivar

Less than two weeks after a study showing that Internet movie piracy displaces digital film sales, new research by two European Commission researchers arrived at the opposite conclusion with respect to music sales. In short, they find that “digital music piracy should not be viewed as a growing concern for copyright holders in the digital era. In addition, our results indicate that new music consumption channels such as online streaming positively affect copyrights owners.”

The two authors, Luis Aguiar and Bertin Martens, are from the EU's Information Society Unit (under the Joint Research Centre) based in Seville, Spain. The duo described their study and conclusions in a new 40-page paper published this month.

"Although there is trespassing of private property rights (copyrights), there is unlikely to be much harm done on digital music revenues," Aguiar and Martens write.

"This result, however, must be interpreted in the context of a still evolving music industry. It is in particular important to note that music consumption in physical format has until recently accounted for the lion’s share of total music revenues. If piracy leads to substantial sales displacement of music in physical format, then its effect on the overall music industry revenues may well still be negative."

Ars reached out to the authors, the Recording Industry Association of America (RIAA), and the Motion Picture Association of America (MPAA). The authors and the MPAA did not immediately respond. The RIAA declined to comment.

Spaniards love piracy sites

To conduct the study, the researchers used data from Nielsen NetView (an Internet audience measurement service) to examine detailed behavior of 5,000 Internet users from each of the European Union’s five largest economies: France, Germany, Italy, Spain, and the United Kingdom.

“The most striking differences appear when looking at the determinants of download. Compared to Germany, Spain show 230 percent more clicks on illegal downloading websites. Italy presents an important difference of 134 percent while the UK and France have 43 percent and 35 percent more clicks respectively. France stands out when it comes to streaming, with 150 percent more clicks than Germany. Spaniards have 20 percent more clicks than the Germans, while Italians have 25 percent less. The UK presents a small difference with Germany in terms of streaming, with only nine percent more clicks.

There are various possible explanations for these country differences. First, unobservable cultural characteristics could explain the use of different types of music consumption channels. Second, market forces, and in particular the limited access to legal digital purchasing websites, could influence the illegal downloading activity of consumers.”

The study relies on two different quantitative formulas, which the authors say are far better than the self-reported qualitative surveys related studies use. The authors also suggest what we’ve long-suspected, which is the lack of a legal alternative for a given piece of content may have a lot to do with whether or not its pirated.

As we’ve pointed out previously, given the fragmented nature of the European Union content market, it’s still true that content availability varies significantly across the soon-to-be 28-member bloc. For example, the iTunes Stores in Austria, Spain, and Denmark may not have a specific TV show availability, while Latvia, Belgium, and Germany do.

A marginal difference

Furthermore, the authors also note that while music revenues have fallen steadily since 1999, last month the International Federation of the Phonographic Industry (IFPI) reported its 2012 global recorded music revenue is up for the first time in 14 years. It rose 0.3 percent during 2011, reaching $16.5 billion. The pair concludes:

“After using several approaches to deal with the endogeneity of downloading and streaming, our results show no evidence of sales displacement. Overall, our different estimates show relatively stable, positive, and low elasticities of legal purchases with respect to both illegal downloading and legal streaming. Across specifications, the estimates of δ suggest elasticities of about 0.02 between clicks on illegal downloading websites and legal purchases websites. If this estimate is given a causal interpretation, it means that clicks on legal purchase websites would have been two percent lower in the absence of illegal downloading websites. Specific country estimates show that for Spain and Italy the elasticity is zero, while it is close to 0.04 for France and the UK. All of these results suggest that the vast majority of the music that is consumed illegally by the individuals in our sample would not have been legally purchased if illegal downloading websites were not available to them.”

UPDATE March 20, 2:20pm CT: The International Federation of the Phonographic Industry has come out with its own response to the study, calling it "flawed, misleading and disconnected from commercial reality."

Autistic 7-year-old could face battery charges

LOGANSPORT, Ind. (WLFI) - "I don't think that it's justice for him to be 7 years old and have battery charges," said Brandi Velasquez.

That's the reaction that came from Velasquez after she heard her 7-year-old autistic son Noah could face battery charges for punching his teacher.

Velasquez said Noah was upset in class and was lying on the floor. According to Velasquez, when the teacher tried to pick him up by the arm, he hit her.

"In an autistic child, nobody knows how they think," said Velasquez. "This poor innocent child was traumatized by it."

Velasquez said Noah has a behavior plan that states when he's upset, he's not to be touched.

Franklin Elementary School Principal Haylee Ladow said she can't comment on specific cases, due to student privacy laws.

However, she said she knows the teacher handled the situation appropriately.

"We have policies and plans and procedures that we follow for our students to ensure their safety, as well as others," said Velasquez.

Yet, Velasquez said he is not happy with those procedures, or the fact that despite many attempts, the school will not identify her medically diagnosed autistic son as a special needs child in school.

Special Services Supervisor Cinda Milan said there's a reason for that.

"If it's not affecting their school progress, we would not identify," said Milan. "So, we're looking more for more on how it's affecting education performance for the child."

Velasquez said she met with school administrators on Wednesday to discuss the issue.

She has since decided to place Noah in a different school, and said at the end of the day, she knows what Noah did was not right.

However, she said pressing charges on a kindergartner isn't right either.

"I am Noah's voice and I will fight until the end for him," said Velasquez.

Logansport Detectives said the case has been turned over to the Cass County Prosecutor. He said it is unknown how soon a decision could be made.

Feds Aim to Seize $1.5 Mil Property Over $37 Marijuana Sale

The Justice Department (and the federal prosecutors and law enforcement agencies underneath it) aren’t really sure how they want to treat medical marijuana dispensaries. One moment we hear they are a “low priority” and the next we see agents raiding them with weapons drawn. In their wishy-washy behavior, it’s not surprising to see they are now seeking to seize a building that once housed a dispensary. It’s not surprising, but it’s still troubling and enraging.

An Anaheim couple consisting of a dentist and a computer engineer with government security clearance, bought an office building on Ball Road as an income generator. The wife had her practice there for many years and they leased space to insurance agents, and other law abiding business owners. The building was their retirement plan.

When the “Ogden memo” of 2009 came down saying dispensaries would be a “low priority” of federal prosecutors, medical marijuana dispensaries multiplied. The couple, seeing these dispensary owners as similarly-minded business people, decided to lease space to one.

“I’m a law-abiding citizen,” said the man. “I didn’t think I was doing anything wrong.” After all, the dispensary-owners were operating business that were legal under California state law and they held business permits.

The DEA saw otherwise. The Feds didn’t use their own investigation and instead relied on a single purchase of medical marijuana for $37 made by an Anaheim police officer posing as a medical marijuana patient. He even had his legitimate doctor’s recommendation for pot in hand. The sale didn’t break state law. But, according to U.S. Attorney Greg Parham, it was enough.

A lawsuit was filed in August of 2012 to seize the property valued at $1.5 million based on this single sale.

After receiving notification of the suit, the building owners evicted the dispensary and sent letters to the feds and the city of Anaheim, hoping to smooth things over and avoid the seizure. But like a shark that smells blood, Parham’s sights were set and he wouldn’t be dissuaded.

He wouldn’t be dissuaded even after U.S. District Court Judge Andrew J. Guilford gave him several chances to change his mind, pointing out several inconsistencies in the federal medical marijuana policies and essentially asking if of all landlords to threaten with forfeiture, this was the landlord Parham really wanted to tangle with.

“Don’t you think in this world of change and whatever, progress or regress, depending on your point of view, this is the exact case that you don’t want presented as a test case on the interaction of federal and state [law] and medical and dispensaries and forfeiture?” Guilford asked. “[Y]ou know, a poor dentist has to turn over a whole bunch of money just because they maybe were relying on what they had heard federal agents say?”

This is happening in the city that sponsors the annual Kush Expo at their convention center—a medical marijuana festival of edibles, smokeables, and doctors standing by to write out recommendations. The case marks just another hypocrisy in the federal government’s War on Drugs, a war that often seems to be motivated by nothing more than money and a bullish mindset. The ease and aggressive manner in which the government is willing to engage in asset forfeiture is an outrageous abuse of power in service to a completely failed policy.

Mont. bill protecting from backdoor medical gun confiscation moves forward

By: Mikael Thalen

Mont. bill would prohibit medical providers from refusing to treat patients who choose not to answer questions about gun ownership

A bill that would prohibit medical providers in Montana from refusing to treat patients who choose not to answer questions about gun ownership passed its hearing in the Senate Judiciary Committee Monday, 62-38.

"This bill is drafted in response to President Obama's Gun Violence Reduction Executive Actions... He is going to use the healthcare system to collect the database of where the firearms are and who has them and once you surrender that information, at some point in the future, confiscation will be that much easier," said Rep. Krayton Kern (R), primary sponsor of House Bill 459.

In light of the tragedy at Sandy Hook Elementary, President Obama has released 23 executive actions and orders to limit gun use, including several provisions that point out that the Affordable Care Act does not prohibit doctors from asking their patients about guns in their homes. An overview of the plan encouraged doctors to ask the question by stating that "we should never ask doctors and other health care providers to turn a blind eye to the risks posed by guns in the wrong hands."

"This is a simple bill. It does one thing. When a medical facility or doctor, as part of their history taking asks you questions about your ownership of firearms, you do not have to answer, that is all this says," said Kern.

Although Kern's bill does not currently prohibit healthcare providers from asking the question, there is talk in the Montana Senate to amend the bill further to disallow gun ownership questions from being asked entirely.

Some gun control advocates have begun lobbying to allow gun ownership data from medical records to be compiled allegedly for research purposes, which has received backlash from gun rights-supporting medical doctors.

"I have been asked. My wife and I had our first child while I was in law school... and at our first pediatrician appointment in Missoula with the doctor, one of the first questions she asked me was if I owned a firearm," said Rep. Austin Knudsen (R), giving his support to the bill.

"I promptly responded to her that that was none of her business and that had nothing to do with why me and my wife where there."

The American Academy of Pediatrics has pushed for allowing pediatricians to ask about gun ownership as well as supporting a ban on "assault weapons" and certain magazines.

Kern's and others' concerns over the medical establishment being used to thwart gun ownership has intensified recently given recurring incidents of gun owners being disarmed without due process from the medical system.

Lynette Phillips, a nurse from California, who was involuntarily held in a mental hospital for two days last December, had her and her husband's three firearms and ammunition confiscated by Department of Justice agents this month.

Following a TV appearance, famous preparedness enthusiast David Sarti had all his firearms confiscated after being declared mentally defective by the state and being put on an FBI list following a simple visit to his cardiologist for chest pains and shortness of breath.

Lawyer John Whitehead, best known for representing Iraq and Afghanistan veteran Brandon Raub, who was involuntarily detained for psychiatric questioning in Virginia last year for talking about government corruption on Facebook, has stated that over 20,000 people have been involuntarily detained from their homes and declared mentally defective by the state without being given due process or being charged with a crime.

Six other states, Alabama, Minnesota, North Carolina, Oklahoma, Tennessee and West Virginia have proposed similar legislation in recent years. In 2011, a federal judge blocked enforcement of the nation's first law restricting physicians from asking patients about gun ownership, ruling the law violates free speech rights.

To: George W. Bush and Dick Cheney

From: Tomas Young

I write this letter on the 10th anniversary of the Iraq War on behalf of my fellow Iraq War veterans. I write this letter on behalf of the 4,488 soldiers and Marines who died in Iraq. I write this letter on behalf of the hundreds of thousands of veterans who have been wounded and on behalf of those whose wounds, physical and psychological, have destroyed their lives. I am one of those gravely wounded. I was paralyzed in an insurgent ambush in 2004 in Sadr City. My life is coming to an end. I am living under hospice care.

I write this letter on behalf of husbands and wives who have lost spouses, on behalf of children who have lost a parent, on behalf of the fathers and mothers who have lost sons and daughters and on behalf of those who care for the many thousands of my fellow veterans who have brain injuries. I write this letter on behalf of those veterans whose trauma and self-revulsion for what they have witnessed, endured and done in Iraq have led to suicide and on behalf of the active-duty soldiers and Marines who commit, on average, a suicide a day. I write this letter on behalf of the some 1 million Iraqi dead and on behalf of the countless Iraqi wounded. I write this letter on behalf of us all—the human detritus your war has left behind, those who will spend their lives in unending pain and grief.

I write this letter, my last letter, to you, Mr. Bush and Mr. Cheney. I write not because I think you grasp the terrible human and moral consequences of your lies, manipulation and thirst for wealth and power. I write this letter because, before my own death, I want to make it clear that I, and hundreds of thousands of my fellow veterans, along with millions of my fellow citizens, along with hundreds of millions more in Iraq and the Middle East, know fully who you are and what you have done. You may evade justice but in our eyes you are each guilty of egregious war crimes, of plunder and, finally, of murder, including the murder of thousands of young Americans—my fellow veterans—whose future you stole.

Your positions of authority, your millions of dollars of personal wealth, your public relations consultants, your privilege and your power cannot mask the hollowness of your character. You sent us to fight and die in Iraq after you, Mr. Cheney, dodged the draft in Vietnam, and you, Mr. Bush, went AWOL from your National Guard unit. Your cowardice and selfishness were established decades ago. You were not willing to risk yourselves for our nation but you sent hundreds of thousands of young men and women to be sacrificed in a senseless war with no more thought than it takes to put out the garbage.

I joined the Army two days after the 9/11 attacks. I joined the Army because our country had been attacked. I wanted to strike back at those who had killed some 3,000 of my fellow citizens. I did not join the Army to go to Iraq, a country that had no part in the September 2001 attacks and did not pose a threat to its neighbors, much less to the United States. I did not join the Army to “liberate” Iraqis or to shut down mythical weapons-of-mass-destruction facilities or to implant what you cynically called “democracy” in Baghdad and the Middle East. I did not join the Army to rebuild Iraq, which at the time you told us could be paid for by Iraq’s oil revenues. Instead, this war has cost the United States over $3 trillion. I especially did not join the Army to carry out pre-emptive war. Pre-emptive war is illegal under international law. And as a soldier in Iraq I was, I now know, abetting your idiocy and your crimes. The Iraq War is the largest strategic blunder in U.S. history. It obliterated the balance of power in the Middle East. It installed a corrupt and brutal pro-Iranian government in Baghdad, one cemented in power through the use of torture, death squads and terror. And it has left Iran as the dominant force in the region. On every level—moral, strategic, military and economic—Iraq was a failure. And it was you, Mr. Bush and Mr. Cheney, who started this war. It is you who should pay the consequences.

I would not be writing this letter if I had been wounded fighting in Afghanistan against those forces that carried out the attacks of 9/11. Had I been wounded there I would still be miserable because of my physical deterioration and imminent death, but I would at least have the comfort of knowing that my injuries were a consequence of my own decision to defend the country I love. I would not have to lie in my bed, my body filled with painkillers, my life ebbing away, and deal with the fact that hundreds of thousands of human beings, including children, including myself, were sacrificed by you for little more than the greed of oil companies, for your alliance with the oil sheiks in Saudi Arabia, and your insane visions of empire.

I have, like many other disabled veterans, suffered from the inadequate and often inept care provided by the Veterans Administration. I have, like many other disabled veterans, come to realize that our mental and physical wounds are of no interest to you, perhaps of no interest to any politician. We were used. We were betrayed. And we have been abandoned. You, Mr. Bush, make much pretense of being a Christian. But isn’t lying a sin? Isn’t murder a sin? Aren’t theft and selfish ambition sins? I am not a Christian. But I believe in the Christian ideal. I believe that what you do to the least of your brothers you finally do to yourself, to your own soul.

My day of reckoning is upon me. Yours will come. I hope you will be put on trial. But mostly I hope, for your sakes, that you find the moral courage to face what you have done to me and to many, many others who deserved to live. I hope that before your time on earth ends, as mine is now ending, you will find the strength of character to stand before the American public and the world, and in particular the Iraqi people, and beg for forgiveness.

You Bought It, You Own It: Supreme Court Victory for Common Sense and Owners' Rights

In a long-anticipated decision, the Supreme Court held today that the first sale doctrine applies to works made outside of the United States. In other words, if you bought it, you own it—no matter where it was manufactured. That's a major victory for consumers, and also libraries, used bookstores, and all kinds of groups that depend on the right to lend or resell the goods they've legally purchased.

This case, Kirtsaeng v. Wiley, specifically concerned the re-sale of textbooks in the U.S. The first sale doctrine, described in section 109 of the U.S. Copyright Act, gives people the right to resell, lend, or give away the works that they’ve bought, even if those works contain copyrighted elements. Textbook publisher Wiley claimed that this doctrine only applies to goods that are manufactured in the U.S., and that the defendant, Supap Kirtsaeng, was infringing its copyright by purchasing books at a reduced rate in his native Thailand and selling them below list price in the States.

In other words, under Wiley's interpretation, copyright owners that are crafty enough to outsource the actual manufacture of their works abroad could control the secondary market for copies of works that were manufactured abroad for the entire copyright term.

The Supreme Court firmly rejected that notion, which it called the “geographical interpretation.” Your right to resell, lend, or give away the works that you buy does not depend on whether you happen to buy them in the US, or in Amsterdam or anywhere else. Rather, it simply depends on whether the copyright owner authorized the manufacture of the copy.

The decision cites an amicus brief filed by EFF and Public Knowledge [pdf], among others, explaining that limiting first sale to works made in the United States would encourage at least two perverse outcomes: American consumers lose access to affordable used copies of products, and companies move American manufacturing and related jobs overseas. Congress could not have intended these results. What is worse, given that copyrighted works are embedded in all kinds of goods, from refrigerators to watches, the ramifications would reach well beyond the traditional book market. As the Court noted:

We [] doubt that Congress would have intended to create the practical copyright-related harms with which a geographical interpretation would threaten ordinary scholarly, artistic, commercial, and consumer activities.

The practical problems that petitioner and his amici have described are too serious, too extensive, and too likely to come about for us to dismiss them as insignificant—particularly in light of the ever­growing importance of foreign trade to America.

The Supreme Court’s decision recognizes that copyright is supposed to serve the public interest, not the other way around. And as we've said before, giving rightsholders overly broad and restrictive enforcement powers is harmful to that public interest, even if those rightsholders aren't actively abusing them:

a copyright law that can work in practice only if unenforced is not a sound copyright law. It is a law that would create uncertainty, would bring about selective enforcement, and, if widely unenforced, would breed disrespect for copyright law itself.

Quite right.

The Court’s decision reflects a real common sense approach to copyright law. That approach will be needed if, as seems increasingly likely, we see a serious effort towards copyright reform. Whether the goal is fixing the Digital Millennium Copyright Act, making the world safe for hostage works, or bring a sense of rationality and proportion to statutory damages, the focus should stay firmly on preserving (or restoring) a sensible balance between the rights of authors, secondary users, and the general public.

Jumping over a cop.

Kentucky Teenager Austin Whaley Can't Say 'Bingo' For 6 Months, Judge Rules

By Tom Barrabi

A Kentucky teenager’s seemingly innocent prank has gotten him into some legal trouble.

A northern Kentucky judge has ruled that 18-year-old Austin Whaley can’t say the word “bingo” for the next six months, the Associated Press reports. Apparently, Whaley was penalized for his antics at a Covington bingo hall.

Police Sgt. Richard Webster was working security at the bingo hall when Whaley and a group of his friends began to cause trouble, allegedly interrupting the game for several minutes by falsely yelling "bingo" and upsetting several players, the Associated Press reports. Webster decided to take action, citing the teenager for second-degree disorderly conduct.

“Just like you can’t run into a theater and yell ‘fire’ when it’s not on fire, you can’t run into a crowded bingo hall and yell ‘bingo’ when there isn’t one,” Webster told Northern Kentucky News.

Luckily for Whaley, Judge Douglas Grothaus thought that jail time would be a bit too harsh of a punishment. Instead, Grothaus ruled that his days of crying “bingo” were over—at least for the next six months.

According to the Associated Press, Grothaus told the Kentucky Enquirer that Whaley’s clean record and status “as a good kid” led him to issue a light sentence. He also told the court that they needed to lighten up a bit.

“With all the other things that happen in the court system and the families you’re dealing with, you’ve got to keep a sense of humor,” Grothaus added.

In this case, news outlets have certainly kept their sense of humor. The Huffington Post joked “screaming 'bingo' was his shame-o” while MSN wrote “Never get between old ladies and their bingo.”

At least Whaley will have a great story for his kids.

Defend the Open Web: Keep DRM Out of W3C Standards

There's a new front in the battle against digital rights management (DRM) technologies. These technologies, which supposedly exist to enforce copyright, have never done anything to get creative people paid. Instead, by design or by accident, their real effect is to interfere with innovation, fair use, competition, interoperability, and our right to own things.

The proposal... claims that "no 'DRM' is added to the HTML5 specification" by EME. This is like saying, "we're not vampires, but we are going to invite them into your house"

That's why we were appalled to learn that there is a proposal currently before the World Wide Web Consortium's HTML5 Working Group to build DRM into the next generation of core Web standards. The proposal is called Encrypted Media Extensions, or EME. Its adoption would be a calamitous development, and must be stopped.

In the past two decades, there has been an ongoing struggle between two views of how Internet technology should work. One philosophy has been that the Web needs to be a universal ecosystem that is based on open standards and fully implementable on equal terms by anyone, anywhere, without permission or negotiation. This is the technological tradition that gave us HTML and HTTP in the first place, and epoch-defining innovations like wikis, search engines, blogs, webmail, applications written in JavaScript, repurposable online maps, and a hundred million specific websites that this paragraph is too short to list.

The other view has been represented by corporations that have tried to seize control of the Web with their own proprietary extensions. It has been represented by technologies like Adobe's Flash, Microsoft's Silverlight, and pushes by Apple, phone companies, and others toward highly restrictive new platforms. These technologies are intended to be available from a single source or to require permission for new implementations. Whenever these technologies have become popular, they have inflicted damage on the open ecosystems around them. Websites that depend on Flash or Silverlight typically can't be linked to properly, can't be indexed, can't be translated by machine, can't be accessed by users with disabilities, don't work on all devices, and pose security and privacy risks to their users. Platforms and devices that restrict their users inevitably prevent important innovations and hamper marketplace competition.

The EME proposal suffers from many of these problems because it explicitly abdicates responsibilty on compatibility issues and let web sites require specific proprietary third-party software or even special hardware and particular operating systems (all referred to under the generic name "content decryption modules", or CDMs, and none of them specified by EME). EME's authors keep saying that what CDMs are, and do, and where they come from is totally outside of the scope of EME, and that EME itself can't be thought of as DRM because not all CDMs are DRM systems. Yet if the client can't prove it's running the particular proprietary thing the site demands, and hence doesn't have an approved CDM, it can't render the site's content. Perversely, this is exactly the reverse of the reason that the World Wide Web Consortium exists in the first place. W3C is there to create comprehensible, publicly-implementable standards that will guarantee interoperability, not to facilitate an explosion of new mutually-incompatible software and of sites and services that can only be accessed by particular devices or applications. But EME is a proposal to bring exactly that dysfunctional dynamic into HTML5, even risking a return to the "bad old days, before the Web" of deliberately limited interoperability.

Because it's clear that the open standards community is extremely suspicious of DRM and its interoperability consequences, the proposal from Google, Microsoft and Netflix claims that "[n]o 'DRM' is added to the HTML5 specification" by EME. This is like saying, "we're not vampires, but we are going to invite them into your house".

Proponents also seem to claim that EME is not itself a DRM scheme. But specification author Mark Watson admitted that "Certainly, our interest is in [use] cases that most people would call DRM" and that implementations would inherently require secrets outside the specification's scope. It's hard to maintain a pretense that EME is about anything but DRM.

The DRM proposals at the W3C exist for a simple reason: they are an attempt to appease Hollywood, which has been angry about the Internet for almost as long as the Web has existed, and has always demanded that it be given elaborate technical infrastructure to control how its audience's computers function. The perception is that Hollywood will never allow movies onto the Web if it can't encumber them with DRM restrictions. But the threat that Hollywood could take its toys and go home is illusory. Every film that Hollywood releases is already available for those who really want to pirate a copy. Huge volumes of music are sold by iTunes, Amazon, Magnatune and dozens of other sites without the need for DRM. Streaming services like Netflix and Spotify have succeeded because they are more convenient than piratical alternatives, not because DRM does anything to enhance their economics. The only logically coherent reason for Hollywood to demand DRM is that the movie studios want veto controls over how mainstream technolgies are designed. Movie studios have used DRM to enforce arbitrary restrictions on products, including preventing fast-forwarding and imposing regional playback controls, and created complicated and expensive "compliance" regimes for compliant technology companies that give small consortiums of media and big tech companies a veto right on innovation.

All too often, technology companies have raced against each other to build restrictive tangleware that suits Hollywood's whims, selling out their users in the process. But open Web standads are an antidote to that dynamic, and it would be a terrible mistake for the Web community to leave the door open for Hollywood's gangrenous anti-technology culture to infect W3C standards. It would undermine the very purposes for which HTML5 exists: to build an open-ecosystem alternatives to all the functionality that is missing in previous web standards, without the problems of device limitations, platform incompatibility, and non-transparency that were created by platforms like Flash. HTML5 was supposed to be better than Flash, and excluding DRM is exactly what would make it better.

Pascal’s Wager…A Sucker’s Bet.

by goldheathen

“Why not believe in god? If you’re wrong and he’s real you go to hell whereas if you believe and he’s not you lose nothing.” Does this sound familiar? How about “I’d rather believe and go to heaven then chance eternity in hell.”? Ever heard that one before? I bet you have. These are modern variations on a principal of theological philosophy called “Pascal’s Wager” and variations on the wager have been kicking around since Blaise Pascal’s “Pensées” was published in 1669.

The wager as written by Pascal is a little over five hundred words so I won’t share the whole thing but at it’s core Pascal’s principal is this: God is unknowable, reason can tell us nothing of the existence of god and so one is forced to make a wager, a coin flip one way or another. If you pick belief and you’re right you get the ultimate reward: Heaven. If you pick belief and you’re wrong you lose nothing. Conversely if you choose disbelief and you’re right nothing happens but if you’re wrong you get eternal damnation and torment. So according to Pascal’s treatment the best thing to do is to choose to believe. (Or even to feign belief in order to prevent the possibility of eternal damnation, but I’ll come back to that.)

There are a great many flaws with the position of Mr. Pascal and his latter-day adherents. I would like to hope that is obvious from the outset, yet I know for some that is not at all the case. I will attempt to lay out some of the more glaring problems with the kind of thinking advocated by Monsieur Pascal here in the hopes of clarifying the issues. The first problem I see, by no means the most glaring problem, just the first that occurs to me, is that this kind of thinking seems to imply that we are free to choose what we believe and don’t.

Our belief is not entirely subject to our will. Belief is “Something one accepts as true or real; a firmly held opinion or conviction.” You do not choose what to believe, what you believe is a combination of your mental capabilities, education, social environment and psychological needs. Either a given precept is plausible to you or it’s not. If this were not the case you wouldn’t hear “de-conversion” stories where the subject says they were no longer capable of believing despite their wish that that was not the case. Nor would you hear testimony from Atheists and Agnostics who say they wish they could believe but just cannot.

Mr. Pascal’s advice to these people is, in effect, “fake it til you make it”. That one should feign belief in order to avoid hell:

“You would like to attain faith, and do not know the way; you would like to cure yourself of unbelief, and ask the remedy for it…. Follow the way by which they began; by acting as if they believed, taking the holy water, having masses said, etc. Even this will naturally make you believe, and deaden your acuteness.” Pensées Section III note 233, Translation by W. F. Trotter

Here it would seem that Pascal is either a) trying to dupe his own All-powerful all knowing deity or b) simply trying to devise a way of making the disbeliever quiet and docile. Regardless of which option you choose this line of thought is inherently dishonest. It also completely dismisses the idea of a creator who rewards intellectual integrity and honesty. I think this demonstrates the character (or lack thereof) of Pascal’s god. That such an entity would prefer feigned devotion to honest doubt is very telling about this supposed entity.

Also this presents an oversimplified version of the choice in question. It pretends that the choices are limited to belief or disbelief, as if there is only a single conception of “god”. There have been thousands of religions and tens of thousands of gods. A great many of them are jealous and demanding gods who require complete and exactly proper shows of devotion and who punish failure with grisly (and often eternal) punishments. How is one to choose which god, goddess etc to worship? The simple truth of the matter is that if the god hypothesis is true there is still not enough reliable information out there to make your “coin flip” a sure thing. As Homer Simpson famously put it:

“What if we picked the wrong religion? Every week we’re just making God madder and madder.”

Taken into account these simple facts make it no safer to be a professed believer in ANY one faith than to be a disbeliever in all of them. Yes you may believe in Yahweh with all your heart but what if Olympus is watching? You’re already signed over your afterlife to eternity in Tartarus. Also when you note that even Jesus himself did not preach of an eternally torturing hell, only a permanent death for the unrighteous, and that the idea of an eternal “Hell” is a later addition to one specific mythology, the whole absurdity of Pascal’s Wager truly reveals itself.

Perhaps the largest problem with this “wager” and its modern offshoots is the idea that belief is free, a zero cost proposition; this is quite simply not true. We have only one life that we can be certain of, spending any of its finite amount of time in contemplation or discussion of this being is a cost, giving of your money to this being’s organizations is a cost. Most importantly though the disagreements between the various sects of believers and between believers and disbelievers, the conflicts, struggles wars, and social problems these disagreements lead to are most assuredly a cost. Belief costs lives; it costs quality of life, freedom and unity. The price of belief is the suspension of self determination, the abdication of personal responsibility, and the subornation of intellect. The cost put simply is that we must prostrate ourselves before an entity that there is no reason to believe exists in order to stave off a punishment there is no good reason to expect.

Pascal’s Wager is a not so cleverly veiled threat. It demands belief (or at least conformity and the miming of belief) in order to stave off eternal torment. It is an effort to silence dissenting opinions, theological bullying. More than that it is a blatant oversimplification of a much more complex issue, propaganda for a being that Pascal himself admits is unknowable, before going on to say quite certainly who and how that being is.

Transatlantic Civil Society Declaration: Leave Copyright and Patent Provisions Out of TAFTA

Last month, U.S. President Barack Obama announced the launch of a new trade deal between the United States and the European Union. This transatlantic free trade agreement (TAFTA)—or what government leaders are touting as the Transatlantic Trade and Investment Partnership (TTIP)—is likely to carry copyright provisions that would pose a serious threat to digital rights. Past and currently negotiated trade agreements have enacted rules that would force ISPs to turn into copyright police, place harsh and disproportionate criminal penalties on file sharers, and seriously impair users' ability to innovate and access content on the Internet.

When President Obama made his announcement, he said that this new regional agreement would be necessary "because trade that is free and fair across the Atlantic supports millions of good-paying American jobs." But if the past is to be a guide, one only has to look at the way in which the Trans-Pacific Partnership (TPP), the Anti-Counterfeiting Trade Agreement (ACTA), and other bilateral and regional trade agreements have shut out civil society groups from negotiations, to understand our skepticism that this new transatlantic trade deal will be drafted in a "free and fair" manner that would uphold the broad interests of Internet users.

Intellectual property provisions in prior trade agreements are often also hugely biased towards big content industry interests. Entrepreneurs, small businesses, and artists benefit from a system that enables them to access and build upon existing innovation and culture. Copyright and patent provisions in recent trade agreements have needlessly locked up technology and decades of content in a manner that stifles independent innovation. Any new trade deal that carries similarly restrictive provisions is more likely to choke job creation than promote it.

EFF joins 44 U.S. and EU organizations in calling for legitimate transparency in upcoming TAFTA negotiations, and further, that it exclude any provisions related to patents, copyright, trademarks, data protection, or other forms of so-called “intellectual property”. We call on government leaders to put an end to secretive trade deals that bind our nations to international legal obligations that run counter to economic, cultural, and digital freedoms.

 

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TRANSATLANTIC CIVIL SOCIETY DECLARATION: LEAVE IP OUT OF TAFTA

Last year, millions of Americans told their government not to undermine the open internet. We sent the SOPA and PIPA bills down to defeat.

Soon after, hundreds of thousands of people took to the streets of Europe to protest against ACTA, a secretive trade agreement that would have violated our rights online and chilled generic drug competition.

Meanwhile, leaked trade texts revealed US and EU threats to access to affordable medicines, which significantly disrupted trade talks in India and the Pacific.

On February 13, the US President Barack Obama, the European Council President Herman Van Rompuy, and the European Commission President José Manuel Barroso announced the official launch of negotiations of a Transatlantic Free Trade Agreement (TAFTA)—also touted as the Transatlantic Trade and Investment Partnership, or TTIP.

We, the undersigned, are internet freedom and public health groups, activists, and other public interest leaders dedicated to the rights of all people to access cultural and educational resources and affordable medicines, to enjoy a free and open internet, and to benefit from open and needs-driven innovation.

First, we insist that the European Union and United States release, in timely and ongoing fashion, any and all negotiating or pre-negotiation texts. We believe that secretive “trade” negotiations are absolutely unacceptable forums for devising binding rules that change national non-trade laws.

Second, we insist that the proposed TAFTA exclude any provisions related to patents, copyright, trademarks, data protection, geographical indications, or other forms of so-called “intellectual property”. Such provisions could impede our rights to health, culture, and free expression and otherwise affect our daily lives.

Past trade agreements negotiated by the US and EU have significantly increased the privileges of multinational corporations at the expense of society in general. Provisions in these agreements can, among many other concerns, limit free speech, constrain access to educational materials such as textbooks and academic journals, and, in the case of medicines, raise healthcare costs and contribute to preventable suffering and death.

Unless “intellectual property” is excluded from these talks, we fear that the outcome will be an agreement that inflicts the worst of both regimes’ rules on the other party. From a democratic perspective, we believe that important rules governing technology, health, and culture should be debated in the US Congress, the European Parliament, national parliaments, and other transparent forums where all stakeholders can be heard—not in closed negotiations that give privileged access to corporate insiders.

The TAFTA negotiations must not lead to a rewriting of patent and copyright rules in a way that tilts the balance even further away from the interests of citizens.
Signed,

International	France	Act Up Boston — U.S.
U.S.	France	Germany
Europe	U.S.	UK
UK	Netherlands	Canada
Poland	International	Germany
Germany	U.S.	Europe
Center for Rights - U.S.	Sweden	Germany
Europe	U.S.	International
Austria	International	Poland
Canada	U.S.	Sweden
France	U.S.	Canada
UK	Germany	U.S.
U.S.	Spain	International
UK	U.S.	U.S.
France	U.S.	Netherlands
U.S.