Friday, March 12, 2004

There are a fair few reports around on the implementation of the IPR enforcement directive of which this EurActiv one is relatively typical. It is a sad irony that the Irish government should be instrumental in steering a pathway for this directive through Parliament, the Commission and the Council. Prior to their implementation last year of the copyright and related rights directive of 2001, the Irish government was one of the few which recognised an explicit right to bypass digital fences for fair dealing purposes. Section 374 of the Copyright and Related Rights Act 2000 allowed the circumvention of "rights protection measures" when the purpose was to access and use the protected work in ways otherwise permitted by copyright law.

Thursday, March 11, 2004

Excellent Greplaw interview with Seth Finkelstein.
On Tuesday, 9th March, the same say they were passing the intellectual property enforcement directive, the EU parliament

"...adopted a Resolution saying that the 1995 Data Protection Directive was not working because of lack of resources, powers of enforcement, and lack of political will by national governments and the European Commission. The Resolution condemned the handing over of passenger data on people flying to the USA because it is contrary to EU law and the 1995 Directive.

The Resolution was passed by 439 votes in favour, 39 against and 28 abstentions"

Tony Bunyan, Statewatch editor, comments:

"The European Parliament has decided, overwhelmingly, that data protection in the EU is not working. It has also decided that the transfer of personal data (PNR) on airline passengers to the USA - which has no data protection laws for non-US citizens - would "flagrantly breach" EU law.

At the end of this month the European Parliament will be asked to vote again on the question of whether or not the USA offers "adequate" protection of data for EU citizens flying there. National government will put a lot of pressure on MEPs to "toe the line" and accept the "deal" already agreed by the 15 EU governments.

All the evidence shows that people cannot rely on governments to protect their right to privacy, nor on the European Commission, for the future of democracy in Europe. Let us hope they can rely on the European Parliament"
There is a sharp and witty (but not for the easily-offended) analogous scenario to the SCO case drawn up by Simon Travaglia over at the Register, BOFH: Protecting bodily waste in the public domain. It captures some of the current excesses in the application of intellectual property law beautifully.

Wednesday, March 10, 2004

Victory for EFF Creates Problems for EFF's Filesharing Solution. Ernest Miller spot on as ever.

"Pennsylvania Federal judge has ordered the RIAA lawsuit charging 203 Comcast subscribers with copyright infringement be broken up into 203 separate lawsuits...

This is certainly a victory for the rights of those accused of copyright infringement, providing a high degree of protection to those who may have been falsely accused. It also greatly complicates the ability of copyright owners to prosecute wide spread infringement and places a greater burden on our court system. A reasonable tradeoff, but it also has other effects as well. For example, it also makes it almost impossible to enforce EFF's voluntary collective music licensing scheme on an individual basis...

In short, why would the majority of filesharers pay $5/month when they can get everything free from the minority of people who do pay? This latest victory, however, makes EFF's position virtually impossible to enforce on an individual basis..."
According to the NYT, the Bush administration have "set forth a new, more limited view of privacy rights as it tries to force hospitals and clinics to turn over records of hundreds and perhaps thousands of abortions."

Some possible good news on the IP front, though possibly not for Microsoft hating purists, is that the US Patent and Trademark office, having reviewed the patent they granted Eolas Technologies on browser technology, have apparently decided to invalidate the patent. This is the patent at the centre of the case where Eolas were awarded $520 million against Microsoft for patent infringement last summer. Judge James Zagel had recently, in February 2004, upheld the jury's original verdict.

This one is likely to run and run.
Robin Gross and Ross Anderson, organisations like FIPR and FFII, and many likeminded individuals will be greatly lamenting the European Parliament passing the intellectual property enforcement directive yesterday, Tuesday, 9 March, 2004. Looks like the CODE alliance, "an international coalition of civil liberties groups and consumer rights initiatives to protect consumer rights, innovation, and competition against the proposed European Union Directive on the Enforcement of Intellectual Property", has failed.

I understand that Pat Cox, the Irish head of the parliament, has said that the issue of the appearance of a potential conflict of interest involving the driving rapporteur, Jannelly Fourtou, whose husband, Jean-Rene Fourtou, is CEO of Vivendi Universal, would be raised in the Parliament Bureau. The question was raised during the voting session by MEP Neil MacCormick of the Scotish National Party.

The Competitiveness Council will rubber stamp the directive tomorrow and then 25 EU member states will be obliged to implement it into their national laws. CODE are unlikely to give up their campaign but it will have to be fought in relation to specific implementations in 25 jurisdictions now, rather than getting important checks and balances written into the directive itself. The specifics could mean the difference between having private security firms raiding homes in the middle of the night on the basis of very little evidence or requiring such raids only to be undertaken by official law enforcement authorities in response evidence 'beyond reasonable doubt' that someone is engaging in major intellectual property infringement. Even then I don't see why the directive could not have restricted this to commercial scale operations.

Parents of tech-savvy music loving teenagers would be particularly well advised to keep an eye on this. But it will be completely meaningless to most, even if it did get within touching distance of their awareness.

The gory detail of the directive is available at IP Justice.

Monday, March 08, 2004

Unlike many libertarians, Harvey Silvergate and Carl Takei don't see the PATRIOT act as the biggest threat to civil liberties in the US. They are more worried about what they believe to be the undermining of the little known legal writ of 'habeus corpus' (essentially a legal challenge to the detention of someone in either official custody or private hands).

"THIS IS NOT the first time the executive branch has tried to limit habeas corpus. In 1996, President Clinton signed into law the Anti-Terrorism and Effective Death Penalty Act. This law created a series of procedural hurdles making it more difficult for civilians charged with criminal offenses to use habeas to challenge the validity of an original trial on appeal...

The current curtailment of the writ is even more dangerous than President Lincoln?s wartime suspension of habeas. Lincoln, though he initially acted on his own, sought congressional authorization as soon as practicable, calling a special session to consider his wartime measures...

For civil libertarians, of course, the most egregious example of past habeas corpus violations remains the notorious internment of Japanese-Americans during World War II. The facts are well-known: the US government forced some 110,000 Americans of Japanese ancestry, two-thirds of whom were US citizens, out of their homes and into military internment camps for the duration of the war, allegedly because suspected saboteurs were hiding in Japanese-American communities. In a 1944 decision widely criticized as a nadir for American civil liberties and judicial review, the Supreme Court in Korematsu v. United States gave the internment program the imprimatur of constitutionality. In this extraordinary move, the judiciary deferred to a military measure that treated citizens like prisoners of war...

Yet in three important respects the Japanese internment cases did less damage to basic principles of democracy than today?s assault on habeas corpus threatens to do. First, in the WWII cases, the government felt compelled to concoct an elaborate lie to convince the court of its noble intentions, which suggests that it took seriously the need to persuade the court that detention was necessary. Today the government is not showing even that backhanded measure of deference to a co-equal branch of government, choosing instead to submit nothing more than two-to-three-page statements written by officials without firsthand knowledge and expecting courts to acquiesce without questioning the evidence or hearing anything from the other side. Second, in the WWII cases, detained citizens had the opportunity to consult lawyers and attempt to rebut falsehoods presented by the government. Finally, although the Japanese internment orders affected a much larger number of people than the "terror" detentions have done thus far, the WWII internment was limited by the finite duration of the war. In contrast, the present ill-defined "war on terrorism" and the attendant detentions have no foreseeable end."

There's an interesting interview with Gerald Santucci, "Head of the 'Trust & Security' Unit for the EC Directorate-General Information" Society at the European Biometrics Forum.
My experience as an Election Judge in Baltimore County by Avi Rubin