Well, well. After some delays and an aborted attempt a few days ago, it appears that the SpaceX “test” flight to get a bit of cargo into orbit and aimed at the International Space Station has worked according to plan — and we’re now a step closer to a private space program (photo from NASA):

The SpaceX folks webcast the whole thing from its website (hopefully, they’ll post the video for people to rewatch — as of right now there’s nothing). The White House immediately offered its congratulations for “the potential of a new era in American spaceflight…” powered by the private sector.

This is the second time that SpaceX has gotten this far, but rather than just orbiting the earth a couple times, the current mission goal is to have the Dragon capsule actually dock with the International Space Station (and deliver some food). The actual docking process is a bit complex, apparently, so there are still some worries. However, things certainly seem to be progressing.

And, of course, this is just one of many stepping stones towards actually offering private manned spaceflight, which goes beyond just touching the edges of space, but actually into orbit. Either way, it’s an important milestone along the way.

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Techdirt. Mike Masnick

ACTA and TPP have much in common, but the way in which they represents two aspects of the same impulse has never been shown more clearly than here, in this proposal to re-use elements of one in the other:

In an apparent effort to break the deadlock in negotiations for an intellectual property rights (IPR) chapter in the Trans-Pacific Partnership (TPP), several countries are proposing that certain provisions in a U.S. proposal be replaced with language from the Anti-Counterfeiting Trade Agreement (ACTA), according to informed sources.

Sources said that other ACTA signatories involved in the TPP – New Zealand, Australia and Singapore – want to substitute language from the agreement’s criminal offenses section with the proposed U.S. language on criminal enforcement, according to sources in Dallas.

Some of the more “moderate” participating countries have realized that TPP’s criminal enforcement provisions are simply disproportionate:

the ACTA and the U.S. proposal [for TPP] both would require countries to provide for criminal procedures and penalties at least in cases of “willful” counterfeiting of trademarks and copyright piracy on a “commercial scale.”

However, the U.S. proposal contains a much stricter interpretation of what constitutes commercial scale because it would cover significant infringements for both the purposes of commercial advantage or private financial gain as well as acts that result in no direct or financial gain.

One source said this provision could criminally punish an individual who has committed a significant act of infringement but does not intend to gain financially from it. IPR industry sources defend this approach as capturing users of file sharing services who do not stand to gain financially by sharing a large amount of pirated content.

That last comment is noteworthy, because it shows that the copyright industries want to punish general users swapping unauthorized copies with criminal sanctions even if there is no money involved. It confirms that these treaties are not really about fighting organized crime, as they are often presented, but truly a war on online sharing itself, where the aim is to put ordinary people behind bars.

To break the deadlock on this issue, the moderate wing of the TPP club is apparently suggesting that the equivalent ACTA provisions should be re-used. It’s interesting to see ACTA, which is still being fiercely fought in Europe because of its harsh and unbalanced nature, presented here as a milder option compared to TPP. If nothing else, that negotiating calculus emphasizes just how extreme TPP is.

However, it’s also disturbing that ACTA, although not yet in force, is already being taken as the new baseline. Indeed, the article quoted above notes that ACTA’s provisions “represent a much higher standard than the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)” – the previous benchmark here.

Moreover, as regards the current “compromise” idea of using ACTA’s provisions instead of the US proposals for TPP, an industry source had the following to say:

the U.S. IPR text largely reflects the U.S.-Korea FTA [Free Trade Agreement] and it would be unlikely the U.S. would agree to provisions that are less strict in the area of criminal enforcement.

As far as the US is concerned, it seems, every treaty in this area, whether bilateral (as in the US-Korea FTA) or multilateral (as with ACTA and TPP), is part of a policy ratchet that allows change in only one direction: more. The unspoken assumption that more copyright and more enforcement are always better is one of the key reasons why SOPA failed, ACTA is meeting such resistance, and even TPP is stumbling.

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

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Techdirt. Glyn Moody

Last fall, after years and years of bickering and fighting, Congress and the President finally got together to pass what they called a “patent reform” bill. While the bill made a few changes to how the patent system works, it almost completely ignored the issue of patent trolling or just how destructive patents are to innovation. Even more ridiculous is that the President insisted that the new bill would create jobs. Perhaps for patent lawyers, but not for many others. Vivek Wadhwa has written up a great piece in the Washington Post noting that if we want job growth, we need to deal with the patent trolls, and most specifically the software patent trolls:

The President is mistaken—at least when it comes to the patent system as it relates to software patents. These patents—and the patent system—aren’t creating innovation, they are inhibiting it and, by extension, job creation. Why? Because the breakthroughs aren’t in the patents, they are in the way ideas are commercialized and marketed. Because of flaws in the patent system and government leaders’ misunderstandings, there is an arms race of sorts happening in the tech industry that is sapping billions out of the economy and crushing technology startups. This system is enriching patent trolls—companies that buy patents in order to extort money from innovators. These trolls are like a modern day mafia. Given this, I argue software patents need to be eliminated or curtailed.

Indeed. But we’ll never fix the patent system if the government continues to think that patents themselves are the key to innovation, despite the evidence showing that patents simply don’t correlate to actual innovation.

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Techdirt. Mike Masnick

The Russian social network site vKontakte is often called “The Facebook of Russia,” in large part because it looks a lot like Facebook. It’s incredibly popular across the Russian-speaking region (Russia, Ukraine, Belarus, etc.). However, for years, the entertainment industry has argued that the main reason it’s so popular is because it has a built in file sharing feature, which is regularly used for the unauthorized sharing of music files. It’s no secret that plenty of unauthorized music gets shared this way — and we’ve even seen other file sharing platforms (even those targeted outside of Russian-speaking countries) built on top of vKontakte’s system. A court had ruled that the site was liable earlier this year, and now an appeals court has backed that up. The full details aren’t entirely clear, as most of the information so far comes from a gloating press release from IFPI. If there are specific activities that vKontakte does to encourage unauthorized sharing that’s one thing, but merely having a feature that allows individuals to share files seems like a perfectly legitimate feature. The fact that it’s widely used to infringe shouldn’t put the blame on the service provider automatically. It would be great to see more details of the ruling to understand the thinking.

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Techdirt. Mike Masnick

A nice meal is a nice meal, regardless of the price. But if you want to show off your considerable fortunes, try serving up a few of these ingredients in your next culinary creation. (Maybe if you’re a newly-minted billionaire, recently married… and have a penchant for killing your own food?)

• If you like really expensive vegetables, forget white asparagus, hop shoots are where it’s at. But unless they’re specially cultivated, the shoots will turn green and become tough and rope-like. [url]
• European white truffles go for thousands of dollars per pound, found by trained dogs (not pigs who will sometimes eat the fungus). Time to start cultivating these in a lab — or at least a quick DNA test to confirm the species… [url]
• About 150 flowers are needed to produce one gram of saffron — and a lot of human labor. Fortunately, it doesn’t take a lot to impart its flavor into foods, but avoid the fake stuff and don’t buy ground saffron. [url]
• To discover more food-related links, check out what’s floating around in StumbleUpon. [url]  

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

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Techdirt. Michael Ho

As many of you remember from the SOPA debates in Congress, one of the loudest voices speaking out against the bill was Rep. Jason Chaffetz. His repeated admonition in the House Judiciary Committee concerning how ridiculous it was to proceed without hearing from actual technical experts — i.e., “the nerds” — got plenty of well-deserved attention (including from Jon Stewart, who wryly noted that the nerds in this case meant “experts”). Rep. Chaffetz will be coming to Silicon Valley on Thursday, May 24th, for a roundtable lunch discussion, put on by the Congressional Internet Caucus, as a part of their excellent 2012 State of the Net West Townhall Series. These free events have been a great way to interact with policy makers, so if you’re in Silicon Valley, I highly recommend signing up and stopping by. I’ll be there, and as with all of the Congressional Internet Caucus events, I expect plenty of other interesting attendees, and expect a useful and lively discussion with Rep. Chaffetz about how we prevent another SOPA situation, as well as various other issues impacting innovation and technology.

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Techdirt. Mike Masnick

What do copyright and parking laws have in common?

The short answer: no one takes either very seriously.

According to a recent article in L.A. Magazine, only 10% of parking citations ever get written. Which is to say that 90% of the times that people park illegally, there are no consequences. Those who violate the increasingly strict parking rules in most U.S. cities are more likely to associate a ticket with bad luck or personal hostility against them than with the fact that they broke the law.

In other words, when you get a ticket, you don’t feel guilty. You feel victimized. As John Van Horn, the editor of Parking Today, explains, low levels of enforcement undermine the deterrent intent of parking laws. “We break the law often and get away with it. Deep down inside we know that. What makes us mad is getting caught the few times we do. ‘Ninety percent of drivers on this street got away scot-free today, but I get the ticket?’ That makes us crazy.”

Part of what drives us to rage at getting a ticket is that we don’t actually believe parking should be illegal in the first place. The freedom to park wherever there’s space is deeply ingrained in the American psyche if not the law. The invention of the parking meter in the late 1930′s was greeted with near-riots across the country. Editorials railed against the new devices as “illegal,” “immoral” and a “perversion.” The Alabama state Supreme Court declared meters unconstitutional in 1937, and ordered them removed from Birmingham streets.

“I truly believe that when men and women think about parking, their mental capacity reverts to the reptilian cortex of the brain,” says UCLA’s Donald Shoup, perhaps the nation’s only academic devoted to the study of parking.

A law that is rarely enforced—indeed, which is not cost-effective to enforce except sporadically—is no law at all. Which brings us to copyright.

Overprotective and largely unenforced rules, combined with a deep-rooted sense of entitlement, create an explosive combination. The problem is the same with parking and copyright. As copyright law becomes more strict, and its penalties more byzantine, Americans are less likely to make the effort to follow the rules, or to believe that new forms of technology-enabled copying are immoral in the first place.

We refuse to see our behavior as illegal, even when we know it is. Recent surveys by the Pew Research Center, for example, report that 72 percent of Americans between ages 18 and 29 “do not care whether the music they download onto their computers is copyrighted or not.” Rightly or wrongly (if those terms even mean anything anymore in this context), the added penalties, extensions, and limits on copying, along with decreasing rates of successful enforcement, are making it less, not more, likely that Americans will obey the rules.

We are collectively living in a state of cognitive dissonance, uncomfortably embracing two conflicting beliefs at the same time. Copying is illegal. Copying is not wrong.

Where did we get the idea of a right to free content? In large part, from the content producers themselves. An older generation grew up with music, movies and television programs beamed directly to their televisions and transistor radios at no charge. Those consumers can’t understand why saving content onto some medium and enjoying it again or later should suddenly transform a strongly-encouraged behavior into a felony.

A younger generation, raised on cheap Internet access, was likewise encouraged to enjoy all manner of copyrighted materials freely and frequently by content providers who wisely chose to rely, as their predecessors did, on advertising and other indirect revenue to pay their costs and generate profits. That’s the message of newspapers, magazines, and broadcast networks who offer some or even all of their content without a paywall. And the movie industry teases consumers mercilessly with trailers, interviews, and production blogs that show just enough of upcoming movies to make us feel entitled to see the rest, one way or the other, the sooner the better.

Yet when fans enthusiastically encourage others to embrace their preferences by posting clips or copies of popular content to YouTube or by ripping CDs and DVDs to repeat their enjoyment on other devices, they instantly cross the legal line from well-trained consumers to dangerous criminals—even terrorists.

Copyright may be the law, in other words, but it no longer holds any moral authority with most consumers. There’s no longer an ethical imperative to obey it or even understand it. Self-enforcement is fading, and the rules are so severe and so frequently violated that effective legal enforcement has become nearly impossible.

It’s a meter, and we all know that the meter is rarely checked. Copyright is a law in name only—as obsolete and irrelevant as rules still on the books in some jurisdictions that regulate who can or must wear what kind of clothing.

Next: How making the law stronger makes the law weaker

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Techdirt. Larry Downes

Earlier this month, we noted a problematic attempt by Grooveshark’s parent company, Escape Media, to subpoena information on an anonymous commenter on the blog site Digital Music News. As we noted at the time, Universal Music had referenced that comment in its lawsuit against Grooveshark. It seemed bizarre to reference an anonymous comment, especially one that seemed like pure hearsay (it made claims about things Grooveshark employees had done). In the lawsuit between UMG and Grooveshark it seemed completely pointless (and, indeed, Grooveshark has been arguing as much in that particular lawsuit). Yet, at the same time, Grooveshark subpoenaed DMN in an attempt to find out who posted that comment. DMN resisted the subpoena, noting that it discards and overwrites its log files every few days anyway, and these files had been long gone already. It also pointed to California’s shield law for journalists and the basic First Amendment protections for anonymous speech.

Unfortunately, the judge has ruled against Digital Music News, and ordered it to produce the information. The judge has indicated that he will not require this information during the appeal that DMN’s lawyer indicated they would file… but did require “preservation” of the evidence during that time. Beyond the shield law and First Amendment issues raised here (we’ll get to those), this raises a very, very troubling proposition for any website that regularly overwrites its log files. Escape Media had argued that even if DMN overwrote the log files, it should be required to hand over the information on the subpoena just in case the overwritten data was still available and could be recovered.

So, what do you do in this situation? Under the judge’s order to “preserve” data that has already been deleted, what is a site to do? Do they have to immediately stop using their existing hardware and set up an entire clone — hanging onto all of the original hardware for who knows how long, just in case a forensics expert can find a tiny piece of (useless for this case anyway) data that has been overwritten probably a hundred times already? That seems crazy. Paul Levy, from Public Citizen, who is representing DMN on this issue, highlighted many of the issues in his blog post about this:

The imposition of data preservation requirements on a journalist who is not a party to the litigation raises questions apart from the merits of the order. Journalists need to be able to discard data when they no longer have any of their own use for it.  Yes, “the public has a claim to every man’s evidence,” but don’t members of the public who are not involved in litigation have the right to discard information despite the fact that it might turn out to be useful evidence for somebody else’s case?  Does the public have a claim to heroic efforts on every man’s part?  Shouldn’t there be higher standards for subpoenas demanding intrusive searches for discarded data in the hands of third parties?

The problem is compounded when it is a journalist that has been subpoenaed.  To what extent does society have any entitlement to make journalists in particular take heroic measures, such as searching the nooks and crannies of their computer equipment for fragments of discarded data?  The judge was sensitive to the fact that our client here is a journalist, telling Escape Media that he was not prepared to allow it to make any general search of Digital Music News’ computers.  But an issue that we may have to pursue on appeal is whether a journalist should ever have to undertake such drastic preservation efforts in aid of a lawsuit in which he is not involved, particularly given the relative unlikelihood that fragments of identifying data remain on his computers somewhere.

Indeed, the problem is broader than just journalists.  Companies often keep log files with respect to server visits (and hosted comments), but there is little business justification for keeping those logs forever; so generally speaking they are discarded after a period of time (EFF’s best practices recommendations are worth a look in this regard).  Does the mere act of discarding log files set a company up for the possibility of a demand for forensic examination of the underlying servers, in the hope that some fragment of the data might be recovered?  In this regard, the trial court’s order has chilling implications for other California companies, even beyond the issue of journalists. 

Issues of how to preserve the data remain to be decided.  This is not like just leaving one of your file cabinets untouched for a period of time; it is not even as easy as making sure you don’t delete any of your email.  Preserving the web site while creating a copy of the underlying servers is a complicated process, requiring the services of a forensic specialist, and the cost could be substantial.  The estimates that we have been given are well into the five figures; but even the cost of several thousand dollars would be an enormous imposition on this small company.

It really is quite a difficult issue, and if the ruling stands, could become a massive headache for any company in California.

Separately, we should not ignore the First Amendment and shield law issues. DMN is not a party in this case, and it’s not even clear why this information is needed. Escape/Grooveshark can and should point out that the information contained in the comment is pure hearsay so it shouldn’t have to deal with it in the original case. The company has not filed a defamation claim against the commenter and does not appear to have met the high bar required to unveil an anonymous commenter anyway. This is a pretty big concern for any journalist or blogger out there. Being dragged into a third party dispute because someone comments on your site can represent a pretty big problem for a lot of smaller sites.

While Grooveshark’s legal fight against the major labels certainly raises some interesting copyright questions, it’s disappointing to see them going down this path and potentially creating serious problems not just for Digital Music News, but tons of journalists and websites.

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Techdirt. Mike Masnick

We recently wrote about a very strange case, in which the US government apparently ended up with a 10% royalty in a soon to be produced Hollywood movie that is being billed as the “prequel” to Passion of the Christ — the famous Mel Gibson movie that made over $600 million. The details were convoluted, but apparently our reporting on the subject upset someone, as we were sent an email, claiming that our post was defamatory and could cause damages in “the hundreds of millions of dollars,” threatening that legal action would be taken if we did not change the post immediately.

In case you missed the original story, it involved a guy by the name of Jorge Vazquez Sanchez, who everyone seems to admit was somehow connected to a Mexican drug cartel. The government specifically charged him with money laundering and extortion. Reporters covering the story, including Guillermo Contreras and Jason Buch at the San Antonio Express-News, refer to Vazquez as a “drug trafficker.”

Either way, the extortion claim came from the way he took ownership of a screenplay for Mary, Mother of Christ, which was written by Benedict Fitzgerald, who also wrote the screenplay for Passion…. Fitzgerald, at some point, took out and then defaulted on a business loan for $340,000 with Macri Inc. Because of this, the owner of Macri Inc., Arturo Madrigal, took possession of the screenplay. Some time after this, apparently Vazquez had Madrigal’s brother kidnapped in Mexico, and demanded the rights to the screenplay in exchange for his release. Madrigal signed over the rights to the screenplay to Vazquez. Vazquez apparently then was able to sell the screenplay to Proud Mary Entertainment, which was later renamed Aloe Entertainment, in exchange for $1 million (less some fees) and a 10% royalty rate on any profits from the movie. After Vazquez did a plea deal in which he plead guilty and handed over that 10% royalty to the US government, Madrigal hit Vazquez with a separate lawsuit, seeking to regain control of the screenplay that Vazquez had obtained through these questionable means.

As far as we can tell all of the above are undisputed facts. It’s what has been reported by others. It’s what’s in the legal documents. And it’s what we reported. Our report focused almost entirely on the oddity of the US government ending up with a 10% royalty interest in a Hollywood movie.

And yet… we received a very threatening email claiming that our post was defamatory. The full email (complete with a series of typos, though minus the odd line breaks) is posted below. The lawyer who sent it claims to represent the producers of the film who purchased the screenplay from Vazquez. This may mean Aloe Entertainment, though the email never names the client. Oddly, the email, while insisting that our post was defamatory, more or less repeats the identical facts as we described them in the original post, and which we are reiterating here. The email does appear to raise two issues:

• Our original post referred to Vazquez as a “drug smuggler.” This was based on the San Antonio Express-News report that refers to him as a “drug trafficker.” Perhaps there is a difference between one and the other, but it does not seem to be one of significance. Either way, the threat email was quite upset that we did not specify that he was merely “acting as a money launderer for a Mexican drug cartel.” I will admit that I do not see how this makes a major difference one way or another, but in the interest of accuracy in reporting, we have changed our original reference from “Mexican drug smuggler” to now say “money launderer for a Mexican drug cartel” — which is how both the federal prosecutors and the lawyer sending the email appear to describe him. Considering that the lawyer claims to represent the production company, however, I still am at a loss as to how this matters. I do not believe our original statement in any way defamed the production company. It was a mere use of a synonym for the original report. But that should only concern Vazquez. It makes no mention of Aloe Entertainment nor any statement about that company.
• The threat email says that the headline of our post “implies that the film has drug money in it” and suggests that “the film or its production has drug ties.” Except we never said that. We did not state it. We did not imply it. We said nothing of the sort. We explained the same chain of events that we explained above, which noted that the production house bought the screenplay from Vazquez. Nowhere did we suggest that drug money went the other way. So, we were left somewhat baffled by the threat.

Either way, as we often do, we feel that it is reasonable and important to publicize legal threats against us. We sent an email reply to the lawyer in question, noting our general confusion about what he was complaining about, while also noting the small editing change we made for factual accuracy entirely unrelated to his client. I still do not know why the original threat email was sent, as the facts about the client that were stated in the threat email are no different than what we reported. I do wonder how much the producers of the film pay their lawyers to send out such threat emails, but I imagine that is a separate issue for them to deal with on their own.

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Techdirt. Mike Masnick

As we expected, the Supreme Court has refused to hear the appeal by Joel Tenenbaum’s lawyers to jump straight to the Constitutional questions concerning the ridiculous statutory damages awards for sharing a couple dozen songs. While reports are claiming that the Supreme Court has “upheld the $675,000″ damages award, that’s slightly misleading. At this point, the court simply refused to hear the appeal. As we pointed out in our post last week, this is really a procedural issue now. A jury had awarded $675,000 and Judge Nancy Gertner reduced the award based on Constitutional reasoning, rather than going through the remittitur process (allowing the record labels to request a new trial). The Appeals court rejected this saying that judges are supposed to avoid the constitutional questions if there’s another way.

So, all this really means at this point is that the process is going to get extended (which certainly works in the RIAA’s favor). It seems likely that the judge will now use the remittitur process to lower the award, and the RIAA will (once again) choose to have the case heard again. Eventually, it might be able to make its way up the appeals chain again. Or, Tenenbaum could decide that too much of his life is being wasted on this and just settle (which is what the RIAA is hoping for). So, today’s refusal to hear the appeal isn’t as big a deal as some are making it out to be, but it sure sucks for the guy who’s at the center of this.

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Techdirt. Mike Masnick