Not a Surprise

The EU spent €360,000.00 on a study of the effects of piracy on sales of media, and found that there was no evidence of an effect, so they buried the report in a deep hole in Brussels until an MEP demanded its release:

One of the problems in the debate about the impact of unauthorized downloads on the copyright industry is the paucity of large-scale, rigorous data. That makes it easy for the industry to demand government policies that are not supported by any evidence they are needed or will work. In 2014, the European Commission tried to address that situation by putting out a tender for the following research:

to devise a viable methodology and to subsequently implement it in view of measuring the extent to which unauthorised online consumption of copyrighted materials (music, audiovisual, books and video games) displaces sales of online and offline legal content, gathering comparable systematic data on perceptions, and actual and potential behaviour of consumers in the EU.

The contract was awarded to Ecorys, a "research and consultancy company" based in the Netherlands that has written many similar reports in the past. The value of the contract was a princely €369,871 -- over $400,000. Given that hefty figure, and the fact that this was public money, you might expect the European Commission to have published the results as soon as it received them, which was in May 2015. And yet strangely, it kept them to itself. In order to find out what happened to it, a Freedom of Information (FOI) request was submitted by the Pirate Party MEP, Julia Reda. It's worth reading the to and fro of emails between Reda and the European Commission to get an idea of how unhelpful the latter were on this request. The European Commission has now released the report, with the risible claim that this move has nothing to do with Reda's FOI request, and that it was about to publish it anyway.

………

The European Commission was quite happy to publish partial results that fitted with its agenda, but tried to bury most of its research that showed industry calls for legislation to "tackle" unauthorized downloads were superfluous because there was no evidence of harm. This is typical of the biased and one-sided approach taken by the European Commission in its copyright policy, shown most clearly in its dogged support for the Anti-Counterfeiting Trade Agreement -- and of the tilted playing field that those striving for fair copyright laws must still contend with on a regular basis. Sadly, it's too much to hope that the European Commission's own evidence, gathered at considerable cost to EU taxpayers, will now lead it to take a more rational approach to copyright enforcement, and cause it to drop the harmful and demonstrably unnecessary upload filter it is currently pushing for.

The study actually showed that illegal downloads BOOSTED legal sales of games, books, and music.

You can see MEP Reda's comments on this whole perfect storm hypocrisy here .

The Streisand Effect Benefits Us All

I've written a bit about the increasingly larcenous and parasitic scientific journal industry.

I have in fact said that the giant of the industry, Elsevier, "Is determined to suck the marrow out of learning, and dance on its bones."

I have on occasion (first link) noted that there is a site, Sci-Hub, based in Russia, which is making much of the previously paywalled material freely available.

Elsevier has aggressively gone after Sci-Hub in court, with the result that Sci-Hub's profile and hence access on the internet, has skyrocketed:

Techdirt has been covering the story of Sci-Hub, which provides unrestricted access to a massive (unauthorized) database of academic papers, for a while now. As several posts have emphasized, the decision by the publishing giant Elsevier to pursue the site through the courts is a classic example of the Streisand Effect: it has simply served to spread the word about a hitherto obscure service. There's a new paper exploring this and other aspects of Sci-Hub, currently available as a PeerJ preprint. Here's what one of the authors says in a related Science interview about the impact of lawsuits on Sci-Hub:

 In our paper we have a graph plotting the history of Sci-Hub against Google Trends -- each legal challenge resulted in a spike in Google searches [for the site], which suggests the challenges are basically generating free advertising for Sci-Hub. I think the suits are not going to stop Sci-Hub.

That free advertising provided by Elsevier and others through their high-profile legal assaults on Alexandra Elbakyan, the academic from Kazakhstan who created and runs Sci-Hub pretty much single-handedly, has been highly effective. The surge in searches for Sci-Hub seems to have led to its holdings becoming incredibly comprehensive, as increased numbers of visitors have requested missing articles, which are then added to the collection: 

As an FYI the Streisand effect is where an attempt to suppress information results in further publicizing and popularizing the data.

Considering the nature of peer reviewed journals, where the publishing houses neither pay the authors, the reviewers, and frequently the editors, and prices have increased largely because of industry consolidation.

If Sci-Hub and its ilk sends these publishers into bankruptcy, the world will benefit.

Headline of the Day

Legal Arguments in "Monkey Selfie" Case Are Bananas at Hearing

—Hollywood Reporter

The nut-jobs at PETA are suing to assign copyright to the monkey because, well, QED.

There are some legitimate copyright issues involved with this photo, the photographer is arguing that he holds copyright even though it was a crested black macaque that actually pressed the shutter button.

He has lost to this point, and said crested black macaque, not being a human, has been deemed unable to hold a copyright, so it's in the public domain.

Of course, PETA saw fit to invite itself to this, and move a marginally interesting point of law into a freak shot, because ……… PETA.

Who Found Pictures of the Registrar of the Copyright Office Engaging in Carnal Congress with a Goat?

After decades of interpreting copyright in the most bone headed and restrictive way possible, the US Copyright Office has come out in favor of a "Right to Repair".

This means that , which will allow people who own products to repair them, despite licensing terms that lock down the products and attempt to force them to drive them to expensive service arrangements.

John Deer for example, is attempting to force farmers to do even the most basic maintenance on their tractors, oil changes, new spark plugs, etc., at the dealers.

This office literally had to be overruled by an act of Congress, the Unlocking Consumer Choice and Wireless Competition Act, because the office decided that consumers should have no right to unlock the phone that they owned.

I think that what happened was that the interim registrar (the last permanent registrar was fired in part for IP extremism) has realized that some common sense needed to be applied:

Last week, to little fanfare, the US Copyright Office took its first baby steps towards stopping auto-makers wrapping their software in copyright rules.

The decision is important because auto-makers use the Digital Millennium Copyright Act's “technical protection measures” (TPMs) provisions to restrict diagnosis and repair to an approved ecosystem.

That's especially galling for farmers in remote locations who have argued that they can't always wait for a factory rep to okay fixes to agricultural machines, while in the more mundane world of automobile mechanics, legitimate repair shops complain that Detroit uses the DMCA to exert market power.

In a lengthy report (PDF) that also canvasses how exceptions to the TPM rules could apply to accessibility technologies, device unlocking, and library archives, the office proposes legislation that sides at least in part with the “right to repair” lobby.

………

Since “bona fide repair and maintenance activities are typically non-infringing”, the report suggests using the DMCA to tie up the repair market wasn't a legitimate use of the law.

Hence “to the extent section 1201 precludes diagnosis, repair, and maintenance activities otherwise permissible under title 17, the Office finds that a limited and properly‐tailored permanent exemption for those purposes, including circumventing obsolete access controls for continued functioning of a device, would be consistent with the statute’s overall policy goals”.

While this sounds like basic common sense, but the application of common sense to IP law has been virtually non-existent over the past 30+ years.

This constitutes a revolutionary shift in culture, even if it is a minor change in policy.

We are finally seeing meaningful push-back against a copyright and patent regime that increases inequality, reduces innovation, and perverts our economy and our society.

But of Course

It turns out that the Australian bureaucracy created to collect fees for content creators has been diverting these fees to lobby against changes in their copyright laws:

Even though stories of copyright collecting societies failing to distribute the monies that they collect to artists abound -- we wrote about one just a few weeks ago -- this doesn't seem to discourage others from continuing to bend the rules somewhat. Here, for example, is a story from Australia, where there is a major battle to switch to a US-style fair use approach to copyright. Naturally, the affected industries there hate the idea of allowing the public a little more leeway in the use of copyright materials. So Australia's copyright collection agency decided to build up a war-chest to lobby against such changes. The Sydney Morning Herald explains where the money for that fighting fund is coming from:

Australia's government-mandated copyright collection agency has been diverting payments intended for journalists and authors to a [$11 million] "future fund" to fight changes to the law.

Specifically, the monies come from payments made by educational establishments in order to use orphan works. That's a major change of the agency's policy that was not disclosed to the Australian government's Productivity Commission that oversees this area:

[The Copyright Agency] has been criticised in a Productivity Commission review that is before the government over the transparency of its accounts and its practice of retaining, rather than returning, millions of dollars collected from schools and universities on behalf of the owners of "orphan works" who can't be traced.

This reinforces a point that I have made on numerous occasions: IP protections are government subsidies through the enforcement of monopoly rents, and are justified only to the degree that they encourage the creation of protected works.

Any amount in excess of this results in parasitic rent seeking, because this is the most effective way to make EVEN MORE money.

Copyright and patent have gone from a way to "To promote the Progress of Science and useful Arts," to a mechanism that corrupts the political process and hinders progress.

Meanwhile in Germany

A court in Germany has ruled that family members must rat each other out or pay the fines themselves:

Copyright trolls are a plague spreading across the world, one which has received far too little social medicine for the taste of many. This virulent form of rent-seeking tends to put out some of the more despicable strategies, from flatout falsely accusing people of piracy, lying to international students about the punishment for copyright infringement, and threatening those that expose their actions.

But a case that was winding its way through German courts sees copyright trolls there now going even further, winning the argument over whether parents should have to serve their own children up to the courts for copyright trolls.

………

Levying responsibility for the failure to out one's own family member is almost comically pernicious. That the court saw fit to route around local laws protecting families from this sort of thing in the name of copyright trolls seems doubly so.

Just f%$#ing lovely.

Way to enforce the stereotypes of the German people, German courts.

Our IP System in One Profoundly Dysfunctional Nutshell

It turns out that American farmers are being forced to use software from Ukrainian hackers to repair their own tractors:

To avoid the draconian locks that John Deere puts on the tractors they buy, farmers throughout America's heartland have started hacking their equipment with firmware that's cracked in Eastern Europe and traded on invite-only, paid online forums.

Tractor hacking is growing increasingly popular because John Deere and other manufacturers have made it impossible to perform "unauthorized" repair on farm equipment, which farmers see as an attack on their sovereignty and quite possibly an existential threat to their livelihood if their tractor breaks at an inopportune time.

"When crunch time comes and we break down, chances are we don't have time to wait for a dealership employee to show up and fix it," Danny Kluthe, a hog farmer in Nebraska, told his state legislature earlier this month. "Most all the new equipment [requires] a download [to fix]."

The nightmare scenario, and a fear I heard expressed over and over again in talking with farmers, is that John Deere could remotely shut down a tractor and there wouldn't be anything a farmer could do about it.

A license agreement John Deere required farmers to sign in October forbids nearly all repair and modification to farming equipment, and prevents farmers from suing for "crop loss, lost profits, loss of goodwill, loss of use of equipment … arising from the performance or non-performance of any aspect of the software." The agreement applies to anyone who turns the key or otherwise uses a John Deere tractor with embedded software. It means that only John Deere dealerships and "authorized" repair shops can work on newer tractors.

"If a farmer bought the tractor, he should be able to do whatever he wants with it," Kevin Kenney, a farmer and right-to-repair advocate in Nebraska, told me. "You want to replace a transmission and you take it to an independent mechanic—he can put in the new transmission but the tractor can't drive out of the shop. Deere charges $230, plus $130 an hour for a technician to drive out and plug a connector into their USB port to authorize the part."

"What you've got is technicians running around here with cracked Ukrainian John Deere software that they bought off the black market," he added.

The affection we have in our society for rent seeking through things like the DMCA (Digital Millennium Copyright Act), and it serves no one but parasites.

In fact, it creates a society based on this parasitism, which crowds out productive activities, and leads to inequality,

We have created a society of Martin Shkrelis, and this is not a good way to be.

Remember, It's All About Artist

Not so much:

Harry Shearer has launched a $125 million fraud and contract-breach lawsuit against Vivendi and StudioCanal over the 1984 rockumentary classic This Is Spinal Tap. The complaint, filed Monday in California federal court, is packed with enough nuggets to instantly make this a must-watch "Hollywood accounting" case. Through the lawsuit, Shearer also reveals he is attempting to claw back rights to the film and its continually popular soundtrack.

Shearer, perhaps best known for the 23 characters he voices on The Simpsons, co-created the semi-fake band Spinal Tap in the 1970s with Christopher Guest and Michael McKean. The film, directed by Rob Reiner and featuring Shearer as bassist Derek Smalls, was produced and released by Embassy Pictures. After a series of transactions, rights to Spinal Tap landed in the hands of Vivendi, the French conglomerate that once had the ambitious goal of becoming one of the largest studios in the industry.

Despite the film's legacy and Spinal Tap's enduring success as an actual band able to sell out arenas, Shearer's company Century of Progress Productions alleges that the four lead creatives have received just $81 in merchandising income and $98 in musical sales income in the past three decades from the franchise.

According to the complaint, the original 1982 production agreement called for Shearer, McKean, Guest and Reiner to get 40 percent of net receipts. In Hollywood, though, calculating contingent profit participation often triggers disputes that go up to 11. This one certainly did.

………

"Particularly given that Vivendi has offset fraudulent accounting for revenues from music copyrights against equally dubious revenue streams for film and merchandising rights also controlled by Vivendi subsidiaries, Shearer is concurrently filing notices of copyright termination for publishing and recording rights in Spinal Tap songs he co-wrote and co-recorded, as well as in the film itself," states the complaint.

$179 after more than 30 years?

Clearly people downloading from the internet are responsible for this.

More Insanity of our IP Regime

Cryptographic expert Matt Green has filed suit in federal court to prevent his arrest if he publishes a text book on encryption:

Assistant Professor Matthew Green has asked US courts for protection so that he can write a textbook explaining cryptography without getting sued under the Digital Millennium Copyright Act.

Green, who teaches at Johns Hopkins University in Maryland, is penning a tome called Practical Cryptographic Engineering that examines the cryptographic mechanisms behind the devices we use every day, such as ATM machines, smart cars, and medical devices. But this could lead to a jail sentence if the manufacturers file a court case using Section 1201 of the DMCA.

Section 1201 prohibits the circumvention of copyright protection systems installed by manufacturers, and comes with penalties including heavy fines and possible jail time. As such, the Electronic Frontier Foundation (EFF) has taken up Green’s case, and that of another researcher, to try to get the provision ruled illegal by the courts.

“If we want our communications and devices to be secure, we need to protect independent security researchers like Dr Green,” said EFF staff attorney Kit Walsh.

The history of prosecutions under section 1201 have been an exercise in the copyright holders studiously avoiding taking cases that they might lose in order to maximize the chilling effect against researchers and consumer advocates, "The US Department of Justice has asked the courts to dismiss the case on the grounds that it is highly unlikely that Green would be prosecuted."

This chilling effect is why civil rights cases are allowed to proceed even though no one has has been prosecuted, so I find the Justice Department's argument specious.

We have a clear demonstration of a chilling effect, both for Green and Andrew Huang, who is trying to author an open source operating system.

Of course, the DoJ, and the White House, and most of the US Congress are in the pocket of IP rights holders, it is no surprise that they are opposing the application of common sense to these restrictions.

You Have Got to be Sh%$ting Me

The AMC network has started threatening fans with copyright litigation for making guesses about plot twists:

What's up, Hollywood TV people? Hey, could you do everyone a favor and maybe stop being complete assholes to your biggest fans -- and especially completely abusing copyright law to harass and bully those people? Almost exactly a month ago we wrote about HBO abusing the DMCA process to go after people who were predicting what would happen in Game of Thrones, accusing them of violating copyright law in accurately predicting what would happen in the future. As we noted, that's not at all how copyright law works, but apparently AMC took a look at what HBO was doing and said "hey, let's do that too."

A large Facebook fan group (with almost 400,000 subscribers) called "The Spoiling Dead Fans" has announced that it has received a completely bogus DMCA notice from AMC:

After two years, AMC finally reached out to us! But it wasn’t a request not to post any info about the Lucille Victim or any type of friendly attempt at compromise, it was a cease and desist and a threat of a lawsuit by AMC Holdings, LLC’s attorney, Dennis Wilson. They say we can’t make any type of prediction about the Lucille Victim. Their stance is that making such a prediction would be considered copyright infringement. AMC tells us that we made some claim somewhere that says we received “copyright protected, trade secret information about the most critical plot information in the unreleased next season of The Walking Dead” and that we announced we were going to disclose this protected information. We still aren't sure where we supposedly made this claim because they did not identify where it was.

Their stance is wrong and short-sighted. It's wrong because merely predicting what's going to happen in a show is not copyright infringement. It's short-sighted because the people making these guesses tend to be the show's biggest fans. Pissing off your shows' biggest fans not only seems monumentally assholish, but also entirely counterproductive.

The DMCA is arguably the worst piece of legislation passed in my lifetime.

Well, Here is a Hearty F%$# You to Larry Ellison

Oracle just lost its lawsuit against Google.

It was attempting to claim that its Applications Programming Interface (API) was a copyrightable element, which would have had the effect of allowing Oracle, and other makers of software platforms, to charge programmers for writing compatible programs:

A jury ruled in favor of Google on Thursday in a long legal dispute with Oracle over software used to power most of the world’s smartphones.

Oracle contended that Google used copyrighted material in 11,000 of its 13 million lines of software code in Android, its mobile phone operating system. Oracle asked for $9 billion from Google. Google said it made fair use of that code and owed nothing.

The victory for Google cheered other software developers, who operate much the way Google did when it comes to so-called open-source software. Unlike traditional software created by corporations and tightly held, open-source products are released, often with some restrictions, for anyone to use and modify.

………

The particular areas of copyright protection in Java involved the so-called declaring code in Application Programming Interfaces, or A.P.I.s., which have become the common way that networked programs on the Internet share data.

Declaring code establishes standards and meanings by which future lines of software, the actual effects the software seeks to create, will operate. This distinction compelled the 10 jurors — eight women and two men — to hear extensive testimony by engineers and economists about the nature of code, and the copyrightable implications of this type of creativity.

The idea that APIs are copyrightable is insane.

It makes independent development of software impossible.

Asshole of the Day

The Columbia Broadcast System:

For “Star Trek” fans it was like finding a lost Shakespeare play — only to have it snatched away by the playwright’s heirs.

Last fall an unused script for the cult 1960s television show turned up after being forgotten for years. Its author, the science-fiction writer Norman Spinrad, announced that it would become an episode of a popular Web series, “Star Trek New Voyages: Phase II,” which features amateur actors in the classic roles of Capt. James T. Kirk, Mr. Spock and other crew members of the starship Enterprise.

But then another player stepped in: CBS, which said it owned the script and blocked a planned Web production of it. Trekkies were appalled. “These executives should be phasered on heavy stun,” said Harmon Fields of Manhattan, who called himself “a ‘Star Trek’ fan of galactic proportions.”

………

The story begins in 1967, after Mr. Spinrad wrote an acclaimed episode of the original series, “The Doomsday Machine.” “I did ‘The Doomsday Machine’ fast,” Mr. Spinrad, 71, said by phone from his home in Greenwich Village, “and then they said: ‘We’re in a hole. Can you write something in four days?’ ”

The result was “He Walked Among Us,” which the producers envisioned as a dramatic vehicle for the comedian Milton Berle. His character is a well-meaning but messianic sociologist whose conduct threatens to destroy the planet Jugal. The crew of the Enterprise must remove him without disrupting the normal development of the culture.

………

Mr. Spinrad soon donated his sole copy of “He Walked Among Us” and other papers to California State University, Fullerton. With several other drafts of the script, it lay in the archives for decades. Sharon Perry, the university’s archivist and special collections librarian, said she had received only one inquiry about “He Walked Among Us” in her 27 years there.

But in October, at the annual New York City Collectible Paperback and Pulp Fiction Expo, a man seeking Mr. Spinrad’s autograph showed up with a copy of the script, which he said he found at another convention. A few months later Mr. Spinrad began selling the script on Amazon and Barnesandnoble.com, and the producers of “Star Trek New Voyages: Phase II” learned of it.

Based in Ticonderoga, N.Y., “Phase II” is one of numerous fan-generated “Star Trek” Internet series, this one named for “Star Trek Phase II,” Mr. Roddenberry’s failed 1977 attempt to revive his creation for television. This Web series is distinguished by its fidelity to the original’s sets, costumes, props, music and other elements, as well as appearances by some original cast members and new stories by writers like Ms. Fontana.

Over the years CBS gained the television, online and merchandising rights to “Star Trek.” But because the “Phase II” cast and crew make no money from their work, the network usually allows them to indulge their hobby.

Around the time Mr. Spinrad offered “He Walked Among Us” online (confusingly he published an unrelated novel with the same title in 2010) he arranged with the “Phase II” senior executive producer, James Cawley, who also portrays Captain Kirk, to film it. The writer said he was “blown away” by the series and planned to direct the episode himself next fall.

But this month, Mr. Cawley said, CBS asked him in an e-mail to cease and desist. CBS also contacted Mr. Spinrad, who withdrew “He Walked Among Us” from the Internet.

The network said it was now “considering opportunities to offer licensed copies of the work.”

F%$# CBS.

Without lube.

I Endorse this Group

The Repair Organization is dedicated to the idea that people have the right to repair the stuff that they own without being locked out through IP protections:

Last summer, when the Copyright Office asked if anyone wanted to defend the right for video game console jailbreakers to mod or repair their systems, no one had a formal legal argument prepared. A new association representing repairmen and women across all industries was just formed to make sure nothing like that ever happens again.

Repair groups from across the industry announced that they have formed The Repair Coalition, a lobbying and advocacy group that will focus on reforming the Digital Millennium Copyright Act to preserve the “right to repair” anything from cell phones and computers to tractors, watches, refrigerators, and cars. It will also focus on passing state-level legislation that will require manufacturers to sell repair parts to independent repair shops and to consumers and will prevent them from artificially locking down their products to would-be repairers.

………

That problem—that manufacturers of everything are trying to control the secondary repair market—has two main sources, Gordon-Byrne said. First, manufacturers use federal copyright law to say that they control the software inside of gadgets and that only they or licensed repair shops should be allowed to work on it. Second, manufacturers won’t sell replacement parts or guides to the masses, and often use esoteric parts in order to specifically lock down the devices.

These problems have been well known in the smartphone, computer, and consumer electronics for years, and it’s why groups like iFixit and the Electronic Frontier Foundation have been able to mount successful challenges to the DMCA in recent years. Increasingly, however, these problems are spilling over into just about every other industry.

………

And so The Repair Coalition will primarily work at a federal level to repeal Section 1201 of the DMCA, which states that it’s illegal to “circumvent a technological measure that effectively controls access to a work protected under [the DMCA].” Thus far, activists have tried to gain “exemptions” to this section—it’s why you’re allowed to repair a John Deere tractor or a smartphone that has software in it. But the exemption process is grueling and has to be done every three years.

………


On a state level, the group will push for laws such as one being proposed in New York that would require manufacturers to provide repair manuals and sell parts to anyone—not just licensed repair people—for their products. The thought is that, if enough states pass similar legislation, it will become burdensome for manufacturers to continue along with the status quo. At some point, it will become easier to simply allow people to fix the things they own.

“We want to become an umbrella organization for repair,” Gordon-Byrne said. “We want to help the small repair technicians that aren’t getting help from anywhere else.”

When the DMCA was passed, we were warned that this would happen.

And now it has.

The law needs to be fixed, though repeal would be a better option.

Today in IP Stupidity

The Harvard Law Review Society publishes a book called the "A Uniform System of Citation," for lawyers.

It's more generally referred to as "The Blue Book", and a group of law students at NYU are publishing a similar set of instructions, which they have referred to as the "Baby Blue".

The response from the HLRS? A cease and desist letter to the students from their lawyer:

War is brewing over the most boring piece of intellectual property imaginable: the “Bluebook,” the 580-page quasi-authoritative source of proper legal citation formats published by the Harvard Law Review, described by Adam Liptak of the New York Times a few months ago as “a comically elaborate thicket of random and counterintuitive rules about how to cite judicial decisions, law review articles and the like [that] is both grotesque and indispensable.”

Students at NYU Law School have prepared a new, streamlined, open-access citation system and gotten it ready for publication; but Chris Sprigman, a law prof at NYU, posted this open letter to his “law professor friends” yesterday:

I am writing to ask you to help me with something important. You may know that for the last year, I’ve been working on a public domain implementation of the Bluebook’s Uniform System of Citation.

The work, which I’ve named ‪#‎BabyBlue‬, is now done, but we’re holding it, because the Harvard Law Review Association has hired counsel and is threatening to sue (me, and Carl Malamud of PublicResource.org, the publisher).

………

The conflict has been brewing for a few months — starting with a letter from Harvard Law Review’s lawyers to publisher Carl Malamud of PublicResource.org:

I write concerning . . . your imminent release of an “implementation of the Bluebook’s Uniform System of Citation” called “BabyBlue,” possibly as soon as December 31, 2015. Based on the description of “BabyBlue” … we believe that “BabyBlue” may include content identical or substantially similar to content or other aspects of The Bluebook that constitute original works of authorship protected by copyright, and which are covered by various United States copyright registrations.

………

It’s copyright nonsense, and Harvard should be ashamed of itself for loosing its legal hounds to dispense it in order to protect its (apparently fairly lucrative) publication monopoly.

Here’s a bit of free legal advice: If you want to assert copyright protection over something, don’t call it “A Uniform System of Citation” — because systems are, by definition, unprotected by copyright. Section 102(b) of the Copyright Act couldn’t be clearer:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, [or] method of operation, … regardless of the form in which it is described, explained, illustrated, or embodied in such work.

It gets even better.

It appears the Harvard Law Review Society is not the creator of this document:

Among the low points in an American legal education is the law student’s first encounter with The Bluebook, a 582-page style manual formally known as “A Uniform System of Citation.” It is a comically elaborate thicket of random and counterintuitive rules about how to cite judicial decisions, law review articles and the like. It is both grotesque and indispensable.

The Harvard Law Review has long claimed credit for creating The Bluebook. But a new article from two librarians at Yale Law School says its rival’s account is “wildly erroneous.” The librarians, Fred R. Shapiro and Julie Graves Krishnaswami, have done impressive archival research and make a persuasive case that their own institution is the guilty party.

“It’s clear that the idea of a uniform citation manual came from Yale, and a lot of the specifics of the early rules came from Yale,” Mr. Shapiro said in an interview. “Harvard entered into the picture later.”

………

The new article ends on a sheepish note.

“Some readers may question whether originating the hyper-complicated Bluebook should be a source of pride for Yale,” it says. “Our response is that, although the Bluebook version that subsequently developed under the leadership of Harvard Law Review currently consists of 582 fairly large pages, the two earliest Yale precursors of the Bluebook were, respectively, one page and fifteen pages long.”

“And these were,” the article says, “very small pages.”

Shades of the song, Happy Birthday to You, where the evidence is fairly clear that the copyright holders never actually wrote the song.

Our IP system is broken, and needs to be fixed.

Actually, it needs to be burned to the ground, because the system has engendered attitudes that lead to this crap.

A Good Start

For profit academic research publishers are firmly in the category of, "Mindless jerks who'll be the first against the wall when the revolution comes."

A particularly nasty player in this sphere is Elsevier, the publisher of such items as The Lancet and Cell, and Gray's Anatomy, and it is particularly aggressive in its charges, and in its aggressive use of copyright to enforce its charges.

All for publications where the content providers, and the editors work for volunteers.

It has now engendered a boycott in its home base of the Netherlands:

A long running dispute between Dutch universities and Elsevier has taken an interesting turn. Last week Koen Becking, chairman of the Executive Board of Tilburg University who has been negotiating with scientific publishers about an open access policy on behalf of Dutch universities with his colleague Gerard Meijer, announced a plan to start boycotting Elsevier.

As a first step in boycotting the publisher, the Association of Universities in the Netherlands (VSNU) has asked all scientists that are editor in chief of a journal published by Elsevier to give up their post. If this way of putting pressure on the publishers does not work, the next step would be to ask reviewers to stop working for Elsevier. After that, scientists could be asked to stop publishing in Elsevier journals.

The Netherlands has a clear position on Open Access. Sander Dekker, the State Secretary of Education has taken a strong position on Open Access, stating at the opening of the 2014 academic year in Leiden that ‘Science is not a goal in itself. Just as art is only art once it is seen, knowledge only becomes knowledge once it is shared.’

Dekker has set two Open Access targets: 40% of scientific publications should be made available through Open Access by 2016, and 100% by 2024. The preferred route is through gold Open Access – where the work is ‘born Open Access’. This means there is no cost for readers – and no subscriptions.

However Gerard Meijer, who handles the negotiations with Elsevier, says that the parties have not been able to come close to an agreement.

 ………

The 2015 Dutch boycott is significant. Typically negotiations with publishers occur at an institutional level and with representatives from the university libraries. This makes sense as libraries have long standing relationships with publishers and understand the minutiae of the licencing processes . However the Dutch negotiations have been led by the Vice Chancellors of the universities.  It is a country-wide negotiation at the highest level. And Vice Chancellors have the ability to request behaviour change of their research communities.

This boycott has the potential to be a significant game changer in the relationship between the research community and the world’s largest academic publisher. The remainder of this blog looks at some of the facts and figures relating to expenditure on Open Access in the UK. It underlines the importance of the Dutch position.The 2015 Dutch boycott is significant. Typically negotiations with publishers occur at an institutional level and with representatives from the university libraries. This makes sense as libraries have long standing relationships with publishers and understand the minutiae of the licencing processes . However the Dutch negotiations have been led by the Vice Chancellors of the universities.  It is a country-wide negotiation at the highest level. And Vice Chancellors have the ability to request behaviour change of their research communities.

These folks are leeches, who have made their business plan out of the free effort of academics.

I'd love to dance on their corporate grave.

What a Stupid F%$#ing Idea

If I had a time machine, I would go back in time to find the father of whoever came up with the idea of adding copy protections to JPEG images, and kick that man in the nuts so hard that he would be rendered sterile:

So much for hopes that the tech industry would back away from copyright protection any time soon. The Joint Photographic Experts Group recently launched a Privacy & Security initiative that potentially brings digital rights management (DRM) to regular JPEG images, not just the specialized JPEG 2000 format. The proposal could protect your privacy by encrypting metadata (such as where you took a photo), but it could also prevent you from copying or opening some pictures. Needless to say, that opens up a can of worms when it comes to fair use rights. If someone slapped DRM on a photo, you couldn't use it for news, research or remixed art -- many of the internet memes you know wouldn't be possible.

This is so unbelievably stupid.

Today in IP Insanity

The city of Inglewood, California attempted to use copyright to prevent people from posting videos of their city council meetings.

Thankfully, thee judge called bullsh%$ on the town's arguments:

Joseph Teixeira doesn't like Inglewood Mayor James T. Butts, so he makes Youtube videos featuring City Council meeting footage.

The Mayor and Council decided to silence their critic by paying to register the videos of their city meetings with the US Copyright Office, then spending $50,000 in taxpayer money to retain a lawyer to sue Teixeira for copyright infringement.

The court was unimpressed with Inglewood's leaders: it ruled that the council meetings weren't copyrightable; that councils can't make money from public records; and that the videos -- in the event that they used anything copyrighted -- were fair use. Now they face the possibility that Teixeira will recover fees for his pro bono counsel -- more tax dollars flushed away in an illegal bid to prevent a critic from speaking.

Then there's the Streisand Effect: in bringing this action, the City of Inglewood increased traffic to Teixeira's videos by five hundred percent.

(emphasis original)

It's nice that the judge slapped them down firmly.

Increasingly, IP is used to censor criticism and to privatize the public space, and it is a bad thing.

IP Restrictions Run Amok

The state of Georgia has characterized the act of posting its laws online as "terrorism", clearly this is absurd:

Government officials have threatened "rogue archivist" Carl Malamud with legal action many times for his efforts to make public government documents widely available for free, but the state of Georgia has set a new standard for fighting this ridiculous battle: It's suing Malamud for infringing its copyright of state laws by -- horrors -- publishing them online.

The state's lawsuit, filed last week in Atlanta federal court, accuses Malamud of piracy -- and worse, of "a form of 'terrorism.'" His offense: Through his website, public.resource.org, he provides members of the public access to a searchable and downloadable scan of the Official Code of Georgia Annotated -- that is, the entire body of state law. The state wants a court order forcing Malamud to stop.

Georgia and Malamud have been waging this battle for a couple of years, or ever since Malamud sent thumb drives bearing the scans to the speaker of the state House of Representatives in 2013. A cease-and-desist order, which Malamud rebuffed, came virtually by return mail.

This isn't the first such battle Malamud has waged. For roughly two decades he's been working to make public laws, codes and court documents, well, public. At almost every turn he's been fought by government agencies that prefer to extract a fee from taxpayers for access, even though, as Malamud points out, the public pays for the work in the first place, via taxes.

………

The state's own lawsuit acknowledges that the annotations are "valuable analysis and guidance regarding ... state law." And the core of its case isn't that the annotations shouldn't be broadly accessible, only that the state doesn't want to pay the cost itself. LexisNexis shoulders the cost and in return gets the right to charge users, earning a profit.

If LexisNexis can't recoup those costs because Malamud is providing a free alternative, the lawsuit asserts, the state "will be required to either stop publishing the annotations altogether or pay ... using tax dollars."

Well, yes. Isn't that what taxes are for?

This is not something that the the state of Georgia should be playing anyone for this.

The state government has to have a copy of the laws and official interpretations in electronic form with annotations as a part of conducting business.

They don't need to have LexisNexis extracting tolls from the citizenry to make this public.

The costs here are negligible to non-existent, and the assertion of copyright is absurd.

Democrats Need to Learn to F%$# the Mouse

The Democratic Party has found a generally friendly reception in Hollywood, and as a result, they have been at least as supportive of draconian and stupid legislation and regulation to increase the profits of Hollywood.

The Obama administration has now taken this to its absurd extreme, and has has filed an amicus brief with the Supreme Court supporting Oracle's claim that APIs should be copyrightable:

The Justice Department is weighing in on the hot-button intellectual property dispute between Google and Oracle, telling the Supreme Court that APIs are protected by copyright.

The Obama administration's position means it is siding with Oracle and a federal appeals court that said application programming interfaces are subject to copyright protections. The high court in January asked for the government's views on the closely watched case.

The dispute centers on Google copying names, declarations, and header lines of the Java APIs in Android. Oracle filed suit, and in 2012, a San Francisco federal judge sided with Google. The judge ruled that the code in question could not be copyrighted. Oracle prevailed on appeal, however. A federal appeals court ruled that the "declaring code and the structure, sequence, and organization of the API packages are entitled to copyright protection."

Google maintained that the code at issue is not entitled to copyright protection because it constitutes a "method of operation" or "system" that allows programs to communicate with one another.

"That argument is incorrect," the administration told the justices.

In an amicus brief, computer scientists urged (PDF) the Supreme Court to reverse last year's appeals court decision. "The Federal Circuit’s decision poses a significant threat to the technology sector and to the public," they wrote. "If it is allowed to stand, Oracle and others will have an unprecedented and dangerous power over the future of innovation. API creators would have veto rights over any developer who wants to create a compatible program—regardless of whether she copies any literal code from the original API implementation. That, in turn, would upset the settled business practices that have enabled the American computer industry to flourish, and choke off many of the system’s benefits to consumers."

Does the court really want operating system vendors to pick and choose who can write software, and what sort of software can be written, on their systems.

This is nuts. The purpose of copyright is to, "To promote the Progress of Science and useful Arts,"^* and there is no way that expanding copyright in this manner does anything to promote progress.

This is insane, and this sort of  IP extremism is at the heart of much that is wrong with things like the DMCA, the TPP, Evergreening, and the continual extension of copyright because Disney does not want Steamboat Willie to enter the public domain.

This is nuts.

^*http://en.wikipedia.org/wiki/Copyright_Clause

Stupid Lawyer Tricks………

A lawyer for the sorority Phi Sigma Sigma has sent a DMCA take-down notice to the Penny Arcade forums alleging misappropriation of trade secrets. (See also here)

They have also apparently sued the poster.

There, are of course any number of problems with this:

• The Digital Millennium Copyright Act applies to copyright, not trade secrets.
• The idea that the oaths, robes, secret handshakes, secret knocks, and seating arrangements are trade secrets is kind of laughable.
• The post was made 3½ years ago, and has been publicly available since then, so the idea that it is a secret any more is ludicrous.
• The Streisand Effect, wherein an attempt to censor information results in its wider dissemination.

In any case, this makes the description of rituals on Penny Arcade a legitimate topic for discussion.

Phi Sigma Sigma (PSS) secretly stands for Philanthropic Social Society. However, this is never written down or recorded (until now) because it is so "sacred". The Handshake consists of a series of motions. Member A first begins with the pointer finger and the thumb surrounding Member B's pointer finger and thumb. This is the "Phi". Then Member A wraps the remaining fingers, middle, ring and pinky around the hand as a symbol of the "Sigma". Depending on who is the senior member, the pinky finger is wrapped around the older member's hand. Next is the hand knock. It goes Knock. Pause. Knock. Pause. Knock, knock, knock. The meetings are set up usually with the President, VP and other officers sitting at the front. The President wears a yellow or gold robe and the officers wear royal blue robes. The remaining members sit across from the officers in a pyramid formation with the base closest to the officers and the apex farthest from the officers. Members are seated by class order, then by alphabetical order. The table at which the President and Vice President are seated consists of candles on each side. Two gold candles and one blue at each corner of the table. Members usually recite an oath, "We, the members of Phi Sigma Sigma, promise to keep secret and sacred all of our proceedings." The way to enter the pyramid is by using the hand knock to notify the members you are wanting to enter the room. The President will respond back with her gavel by repeating the knock. The person will enter then travel to the apex of the pyramid formation. The President will say the secret and sacred words "Remove the Veil" and then the member will respond back with the Chapter's name, example, "Zeta Eta." The Gold and King Blue symbolize "Perpetuity" and "Sincerity". At initiation, blue "veils" (tulle from the local fabric store) are placed on the heads of the potential new members and are later removed to symbolize some sort of occult transformation and that they are full-fledged members.

This story has made it to the ΦΣΣ Wikipedia page I think that it's time to understand that it's game over, and any additional attempt to suppress this information serves neither the public nor the sorority.