Shepard Fairey Destroys Evidence, Goodwill; Harms His Case For No Good Reason

from the grow-up dept

On Friday morning, someone "working with" Shepard Fairey alerted me that some news was coming out that day about his lawsuit with the Associated Press over his famous Barack Obama poster: I finally got the "official" statement from Fairey late on Friday, just as I was about to leave work for the weekend, and the whole thing was so ridiculous that I just figured I'd leave it until today. Apparently, Fairey, for absolutely no good reason, tried to destroy evidence and then lie about which photo he actually used to make his poster. He's now come clean about this, and while he's right in his statement that this shouldn't have any impact on the underlying case, it certainly doesn't help. It was already pretty well known that Fairey was hardly the poster child of fair use -- given that he has a history of going after others who copy his own work, despite being an "appropriation artist" himself. But, even so, this is beyond dumb -- something I don't say lightly.

Fairey still has a very strong fair use claim -- which is entirely separate from the question of whether or not Fairey did something incredibly stupid here. Even if he used the image the AP claimed he did (which he now admits), it still seems like this is an obvious case of fair use. But destroying evidence and lying -- especially when there was no good reason to do so -- just harms his credibility and makes it that much more likely that he'll lose his case not for any legitimate reason, but because of his own separate actions in dealing with this case. There are important fair use issues at play here, and Fairey just made it that much harder to maintain the high ground.

While some are pointing out that this is the sort of thing that happens when copyright laws always seem to stack the deck against fair use, that's still no excuse for lying and trying to destroy evidence. Yes, the system sucks, but doing something like this only harms an otherwise strong case.

Filed Under: copyright, evidence, fair use, lies, shepard fairey

ACTA Negotiations Back On... White House Shows Small Group Proposed Text Under NDA

from the but-what-about-the-public dept

With the next round of negotiations on the ACTA treaty -- which may require the US and other countries to make significant changes to copyright law that favor the entertainment industry -- set to get underway, the White House still refuses to release details to the public, but did show the text to 42 Washington "insiders" under NDA. The good news is that the list includes a fair number of folks who recognize the problems with copyright law and the ACTA proposal -- including people like Gigi Sohn, William Patry, Sherwin Siy, David Sohn and Michael Petricone. Many of those people will push for the public's best interests. But, still, it's a bit troubling that the whole conversation remains secret for "national security" reasons. If we're talking about changing copyright laws that effect everyone, why not let everyone know? Sherwin Siy, from Public Knowledge, told KEI (in the link above) about his experience viewing the document, which sounded greatly limited, and notes that while the document has been adjusted, "the most troubling aspects" have not been "resolved."

In the meantime, it's worth asking why this is necessary again. First of all, in a world where trade agreements are supposed to be about breaking down trade barriers, ACTA seems designed to be putting up protectionist policies. Protectionism doesn't work and only creates more harm. But, much more importantly, much of the push for ACTA is based on lobbyists' claims of the "harm" done by counterfeiting. Except both the GAO and the OECD have put out independent reports showing that counterfeiting isn't that big a problem, and that whatever problems there are seem to be significantly exaggerated by lobbyists. Yes, those same lobbyists who were given much earlier access to the document and, records suggest, had a hand in shaping the document itself. So why do we need ACTA again? And why are we allowing those who the government has already found to have exaggerated the problem drive the negotiations?

Filed Under: acta, consumer rights, copyright, counterfeiting, evidence, lobbyists, privacy, secrecy

Could Evidence-Based Copyright Law Ever Be Put In Place?

from the perhaps-not dept

Recently, we were discussing how copyright law seems to only get worse and worse, and it got me thinking how likely it is that "better" copyright laws could ever be put in place. Michael Geist recently put up a post on how to design copyright law that would last, emphasizing "balance" as being essential for durability. I have to admit, I tend to wince when people talk about a "balanced" copyright law, because it usually means a copyright law where everyone is worse off. A balanced copyright sets up the argument as if there's a real give-and-take, where what's good for some is bad for others.

I don't think copyright law needs to be that way. If the real purpose of copyright law is to "promote the progress," then why not make sure it's doing so? In other words, why not have actual evidence-based copyright law? There's a lot of historical evidence that can be looked at, and different ideas around copyright law can be empirically tested. If it doesn't promote the progress, get rid of it. If it does, then shouldn't that make almost everyone better off?

The real problem, though, is that there is a very small group of companies who disproportionately benefit from today's copyright laws -- at the expense of the public. And they have a ridiculously powerful lobby who aren't about to give up their monopoly rights, no matter how much evidence there is that it harms the public and does not promote the progress at all. So we're left with a bad system that continually gets worse. And no evidence-based system will ever be allowed, because it would almost certainly strip that small, but powerful, group of their monopoly rents.

People often assume that I'm in favor of just tossing out all copyright law. I'd argue that I'm more agnostic on the subject than anything else. I don't care about "copyright law" per se. I care about what's going to best promote the progress. If someone can show me that copyright actually can do that, I'm willing to understand how. But if we can't present the evidence of how, or actually defend what good copyright does, the I'm left wondering why it's there at all.

Filed Under: balance, copyright, evidence, politics

Consumer Group Wants ACTA Discussions Stopped Until Consumer Rights Are Represented In Negotiations

from the would-be-nice,-but-seems-unlikely dept

We've discussed in great detail how the current ACTA treaty has been mostly driven by corporate interests as a way to sneak in more draconian copyright laws through international treaty, rather than through legislative means. When consumer groups have requested a seat at the table, they've been rejected, even as industry lobbyists have had no problem being active participants in the process.

Now, a group called the Trans Atlantic Consumer Dialogue has demanded ACTA negotiations be put on hold until consumer groups have a real seat at the table, or at least are given access to documents being negotiated. TACD raises a number of important issues, such as respecting privacy rights and the rights of developing nations, who are often trampled over when it comes to IP protectionism from developed countries. But best of all, it points out one of the most annoying things in all efforts by copyright holders to extend copyright protection: they never, ever present any evidence for why it's necessary. It's an evidence-free zone. TACD specifically requests that real evidence be used:

Public policy on the enforcement of intellectual property rights should be informed by creditable evidence, transparent and realistic assumptions and objective peer reviewed analysis. Multiple approaches to addressing the legitimate concerns of right owners and consumers should be considered.

• Statistics on counterfeiting and or infringement must be objective, accurate, and presented in the appropriate context.
• Statistics on counterfeit and substandard medicines should not be combined when this misleads policy makers about the extent of either problem. The solutions to counterfeit and substandard products are often quite different.
• Estimates of losses from infringements of intellectual property rights should be based upon realistic demand and usage parameters.
• Governments should collect and analyze statistics on the relationship between infringement and affordability of products.

Here's TACD's full proposal:

Filed Under: acta, consumer rights, copyright, counterfeiting, evidence, lobbyists, privacy, secrecy
Companies: tacd

If You're Kidnapping Someone, Maybe Don't Search Google For 'Kidnapping'

from the be-careful-what-you-search-for dept

We've seen a few stories in the past of an people's Google searches being used in court to convict them -- because it strikes people as quite a coincidence when you just so happened to Google the crime you're accused of committing right after (or before!) it happens. Michael Scott points us to the latest such case, where someone accused of kidnapping a 17-year-old girl in Palo Alto apparently searched the news for terms related to kidnapping and sexual assault. Of course, one could argue that it could just be someone interested in the case -- but assuming there's additional evidence, then it could be pretty damning. In the meantime, if you're going out and committing crimes, perhaps don't search for related terms on any machine that can be traced to you...

Filed Under: evidence, google search, kidnapping
Companies: google

Companies Trying To Restrict Usage Isn't Evidence Of Any Broadband Crunch

from the anecdotes,-not-data dept

This is fascinating. A few weeks back, we noted that a press report in the UK was repeating Nemertes' questionable research on how there was apparently some big bandwidth crunch on the way that would harm the internet. However, someone from Nemertes quickly showed up to claim that the original reporter took their (old) report out of context, and Nemertes wasn't saying what was claimed. However, Zubin Madon, alerts us to the fact that Nemertes' Johna Till Johnson (oddly, without any clear disclaimer that she works for Nemertes) has published a piece at ComputerWorld claiming that, indeed, the internet is running out of bandwidth and that "the Internet sky really is falling." Not only that, but that it's happening even faster than their original estimates?

The proof? Well, there isn't any. She takes two data points (that have nothing to do with actual bandwidth) and extrapolates that we're running out of bandwidth. First, she points out that YouTube was discontinuing servicing certain geographies due to "lack of access capacity." First of all, I'd be interested in some more details on this, because I don't recall seeing the news, and a quick look around isn't turning up much on a story that I would have imagined would have generated a ton of press. Even if it's true, it doesn't seem to support Johnson/Nemertes' point. If YouTube really were pulling out of certain regions due to a lack of access, that would just mean the company is focusing on regions where there is more bandwidth, not that bandwidth is somehow running out. It just means Google is focusing on markets where there's a larger market.

The second data point is Time Warner Cable's weak attempt to try to force metered broadband. However, as the actual research has shown, Time Warner's actions had nothing to do with a bandwidth crunch, and everything to do with simply trying to abuse a market monopoly position to squeeze more money out of customers, even as its own costs were decreasing.

So it's again difficult to take Nemertes' research seriously when these examples are the best it can roll out in support of its position -- especially when Nemertes seemed to step away from its own supposed position just days before Johnson's column.

Filed Under: broadband crunch, evidence
Companies: nemertes

No Evidence To Support The Need For Broadband Tiers Or Caps

from the oops dept

Just as the various broadband providers are ramping up their bogus astroturf attempts to convince the world that broadband caps are necessary and good for customers, Saul Hansell has been digging deep into the numbers and can't find any justification at all for the caps. All those stories about overwhelmed networks and exponential traffic growth? Not happening. If anything, the evidence is that the opposite is happening: advances in technology means that it's become cheaper for broadband providers to meet the needs of their customers. And those needs are growing, but that growth rate has been slowing, and is quite manageable. So, basically, the broadband companies are hyping up a problem that just isn't there. There is no crunch. There aren't bandwidth shortages that require cutting off heavy users. The only reason to set up such tiers is to squeeze more money out of customers without providing any improvements in service (actually, while providing less service). And it's all possible thanks to the lack of competition in the marketplace.

Filed Under: broadband, caps, evidence, tiers

UK Academics Warn Copyright Extension Supporters Not To Fall Back Into The Evidence-Free Zone

from the please-present-some-(any)-evidence dept

In James Boyle's excellent book, The Public Domain the ninth chapter expresses his hope that politicians passing copyright law would actually demand evidence before passing laws:

Imagine a process of reviewing prescription drugs that goes like this: representatives from the drug company come to the regulators and argue that their drug works well and should be approved. They have no evidence of this beyond a few anecdotes about people who want to take it and perhaps some very simple models of how the drug might affect the human body. The drug is approved. No trials, no empirical evidence of any kind, no follow-up. Or imagine a process of making environmental regulations in which there were no data, and no attempts to gather data, about the effects of the particular pollutants being studied. Even the harshest critics of regulation would admit we generally do better than this. But this is often the way we make intellectual property policy.

The one exception he highlights? Copyright extension in the UK, where the famous Gowers' Report recommended against copyright extension, based on evidence that it would do a lot more harm than good. After the report came out, Gowers actually admitted that the evidence showed that the best economic results would be to make copyright much shorter, but he didn't push that at the time, since the interest was in the other direction. Yet, despite this evidence that copyright extension would basically harm nearly everyone -- including musicians and the public -- some politicians in the UK have been saying it must be done anyway. Yes, the one case where actual economic evidence is being used... and it's being totally ignored.

The good news is that this is pissing off a lot of very smart people, who are demanding to understand why the government wants to ignore all of the evidence:

There has been some talk of 'moral arguments' for extension but it is hard to discern a compelling 'moral' case for a proposal whose prime effect is to benefit major label shareholders and a few, already highly successful, artists while imposing significantly greater costs on new creators, the general listening public and the custodians of our cultural heritage.

As Gowers concluded, and the Government has until now consistently reaffirmed, policy-making in this area should be evidence-based and designed to promote the broader welfare of society as a whole. Policies that appear to reflect nothing more than lobbying will only perpetuate the "marked lack of public legitimacy" which the Gowers report lamented — and discourage those who wish to contribute constructively to future Government policy-making in these areas. We therefore call on the Government to present any evidence that has led to this change of policy.

Indeed. The moral argument for longer copyright makes no sense when the economic evidence suggests that nearly everyone is made worse off (including musicians themselves) by longer copyright. How can it possibly be moral to have everyone worse off?

Filed Under: copyright, evidence, uk

Defense In Lori Drew Case Rests, As Judge Considers Dismissing The Case

from the time-to-end-this dept

The case against Lori Drew looks weaker and weaker by the day. The defense has rested its side, and the judge is considering whether to dismiss the case outright after it was established that it wasn't even Drew who set up the account used to communicate with Megan Meier. Based on that, it's even more ridiculous (and it already was ridiculous) to charge Drew with computer fraud for violating the terms of service -- considering she wasn't even there to review the terms of service, nor did she actually set up (or use, apparently) the account. This case has been a travesty from the start. Yes, people somehow want vengeance for Meier's suicide, but trumped up bogus charges against Drew don't help matters. It's nothing more than a witch hunt against someone who it appears did not actually break the law. If people want the law to be changed -- then work to change the law, but don't twist the laws to convict Drew.

Filed Under: computer fraud, evidence, lori drew, megan meier

Lori Drew's Lawyers Worried About Finding Jury That Hasn't Prejudged Drew

from the tough-case dept

With the judge agreeing that the information about Megan Meier's suicide can be included in the computer fraud lawsuit against Lori Drew, Drew's lawyers are discovering that the emotional aspects of the case may be difficult to get past. In fact, in reviewing questionnaires that potential jurors were asked to fill out, many expressed outright disgust and "viciousness" for Drew. Once again, it's becoming increasingly clear, that it will be impossible for Drew to get a fair hearing on what the case is actually about: whether or not it's a violation of computer fraud and hacking laws to break the terms of service for an online service. Instead, people are focusing on Meier's suicide, which has absolutely nothing to do with the actual charges. This is a witch hunt appealing to emotional responses, rather than reasoned ones. It's been rather depressing to see how many folks have no problem abusing the law in this manner. If the lynch mob aspect of this case is allowed to go on, it will eventually be looked back on as a mockery of the law.

Filed Under: computer fraud, evidence, jury, lori drew, megan meier