Thursday, May 05, 2005

EDRI-gram - Number 3.9, 4 May 2005

The latest edition of European Digital Rights' excellent EDRI-gram is now available, containing, as usual, a string of important stories and a nice recommendation to read my Open University internet law course, which is available openly under creative commons licence.

Real ID act extra territorial

The US Real ID Act could directly reach beyond US borders, according to James Plummer, Policy Director of the Liberty Coalition. That's something I had not appreciated previously.

"Title II of the REAL ID Act repeals the Senate-crafted language concerning state driver's licenses from the last Congress' intelligence reform package in favor of even more troubling anti-privacy provisions. The first troubling aspect of the license provisions is the requirement that states link their identity databases and join something called the "Driver License Agreement." That agreement, a proposed interstate compact, has been drafted by AAMVA, the Association of American Motor Vehicle Administrators - a kind of trade association of DMV bureaucrats. The compact, which no state has voluntarily joined, would also allow the states and provinces of Mexico and Canada to join into this database system - without further input from state elected officials.

Making Americans' sensitive identity information available to foreign government officials is not a sensible or coherent method for making Americans safe...

...the design requirement for "physical security features designed to prevent tampering, counterfeiting, or duplication of the document for fraudulent purposes" is so broad that Homeland Secretary may read it to include fingerprints, scans of the iris or retina of the eye, or even DNA.

Thus, without further input from Congress or others, Homeland Secretary could mandate such supremely sensitive data be in a database system accessible to foreign governments."

Wednesday, May 04, 2005

Real ID Act about to become real

Barry Steinhardt of the American Civil Liberties Union (ACLU) has emailed Declan to say:

"Congressional passage of the "Real ID" legislation is now all but a done
deal, House and Senate conferees having agreed to inclusion of language
in an appropriations bill that is all but certain to pass."

And he's not happy:

" In the days after 9/11, President Bush and others proclaimed that we must not let the terrorists change American life. It is now clear that - despite its lack of effectiveness against actual terrorism - we have allowed our security agencies push us into making a deep, far-reaching change to the character of American life."

He makes some important practical points about the scheme in his email and it is worth reading in its entirety.

Security at the Register

The Register have done a series of really good stories on security recently:

Backup tapes are backdoor for ID thieves

Fight fraud not ID theft

Privacy watchdog warns job seekers to beware

Database misuse: who watches the watchers?

DRM illegal in France

Susan Crawford is not convinced that the recent decision of a French appeal court to outlaw drm access controls on DVDs is likely to do any real damage to the widespread deployment of such drm.

"The US content industry often cites the success of DVDs as evidence that consumers don't expect to make their own copies of this format -- and don't seem to care that they can't. The DVD closed-circle, chain-of-licenses story is told over and over again in this country. "See?" the industry says, "People just want to be entertained."

But in France, Germany, and Spain (three reasonable countries), people do apparently expect to be able to make private copies of things they take home with them -- and the law supports this understanding. If this decision takes hold (and I can only imagine the resources being devoted right now to make sure that it is deep-sixed and tagged as downright un-European by some more captive law-making body), and is joined with some other European precedents on the consumer-unfriendliness of DRM, it might just cause a little wrinkle of change.

But I have to say I'm not sanguine about this. I'm sure there are treaties being whipped up that will enshrine DRM as a human right ("consumers require choices of content; such choices can only be made available if adequate legal controls are in place; private copying is in derogation of the Rights of Man" -- something like that), and those French people wanting to make copies for maman will be sent meekly back to the store to buy again. "

A toast to Dave Winer

Dan Gillmor offers a toast to Dave Winer on his 50th birthday for seeing the future.

"I still remember the moment I saw a big piece of the future. It was mid-1999, and Dave Winer called to say there was something I had to see.

He showed me a web page. I don’t remember what the page contained except for one button. It said, "Edit This Page" -- and, for me, nothing was ever the same again...

What Dave and the other early blog pioneers did was a breakthrough. They said the Web needed to be writeable, not just readable, and they were determined to make doing so dead simple.

Thus, the read/write Web was truly born again. We could all write, not just read, in ways never before possible. For the first time in history, at least in the developed world, anyone with a computer and Internet connection could own a press...

Dave just celebrated his 50th birthday, and has been feted by many for that milestone. I add my good wishes here, with my certainty that he has many more years and achievements yet to come."

Edgar Allan Poe's lesson for Telcos

OfcomWatch also have some reflections on the future of the big telcos, which could have come straight from David Isenberg, arising from James Enck's presentation at the "Marcus Evans conference on Strategic Pricing for Telecom Content and Services in London."

"I saw the program, and noticed that there didn't appear to be much in the way of disruptive stuff on the agenda. I got the sense that it was going to be largely business as usual, and this was just the inspiration I needed. I could have talked about a variety of issues (believe me, I wanted to), but in the end decided to try to hit the audience (and organizers) where they live, and devote my entire presentation to Skype...

One slide of my introduction contained a quote from Edgar Allan Poe's "The Masque of the Red Death". For those who haven't read it, basically the idea is that a decadent regime is hiding behind thick castle walls from a plague which is devastating everyone outside, diverting itself by having a masqued ball. Just keep dancing and we'll be fine. An interloper appears, and the king demands that he be unmasked, but the intruder (whether he is merely a carrier of the disease, or embodies some karmic revenge, is unclear) turns out to be the harbinger of doom, already among them. Okay, my use of it was partially tongue-in-cheek, but I had a serious point to make: your assassin is probably already inside the castle walls and you may not even know it."

Ofcom interviews

Ofcom watch has been interviewing some senior people at Ofcom, Tim Suter who is Ofcom’s Partner for Content and Standards, and Matt Peacock who is Ofcom's Director of Communications. Interesting.

Fair use and orphan works

Kim Weatherall has been thinking about the problem of orphan copyright works with the aid of the writings of Richard Posner and William Patry.

"In further thoughts on fair use, I was just flicking through an article by Richard Posner and William Patry on fair use in the wake of Eldred (William A. Patry and Richard A. Posner, 'Fair Use and Statutory Reform in the Wake of Eldred' (2004) 92 Cal L Rev 1639)...

Patry and Posner do two things I like in this paper. First, they tell some great fair use/copyright overclaiming stories. Since I can't resist, here's a quote:

'Recently the New York Review of Books published a newly discovered notebook entry by Virginia Woolf, and a note at the end of the article states: "Copyright © 2003 by the Estate of Virginia Woolf. No part of this text may be reproduced without the express prior consent of Hesperus Press." No part? That is ridiculous. A journalist, biographer, literary critic, or historian writing about Virginia Woolf would be entitled by the fair use doctrine to quote a brief passage from the article. The note is pure bluff, but a public-domain publisher threatened by a lawyer representing Hesperus Press with legal action would think twice about publishing even the briefest passage without consent...In Margaret Atwood's recent novel Oryx and Crake, the author thanks "John Calder Publications and Grove Atlantic for permission to quote eight words from Samuel Beckett's novel, Mercier and Camier." Eight words? Please."

OK, light amusement aside, there is a serious point to Patry and Posner's article. The second thing that Patry and Posner do is suggest that we deal with the orphan work problem (the problem of old works, where we can't find the copyright owner, and so can't get permission to use a work) using a 'fair use' argument. They argue this could be done simply by interpretation of the existing, inclusive definition in the US Act, as follows:

'The correct balance is struck, imposing a duty of reasonable inquiry on the would-be copier. The satisfaction of that duty would require him to determine, as by hiring a reputable service that specializes in tracing people, whether the person indicated on the copyright page or in other records known to or readily available to the would-be copier as the owner of the copyright was, if an individual, still living, and, if a firm or other organization, still in existence. The would-be copier would be required to seek a license from that individual or entity unless the search, though properly conducted, had turned up nothing--had failed to discover a copyright owner from whom the would-be copier might try to negotiate a license--in which event the copying of the work would be deemed a fair use.'

Not only would this solve the problem of the old works. It would also, they argue, provide incentives for the creation of a proper registry, where people wanting to claim fees for use of their material would have incentives to register themselves"

RIAA watch

If you ever wondered whether anyone was keeping an accurate count of all those RIAA lawsuits against individual P2P file sharers, wonder no longer. RIAA Watch says the total is now 10037.

"The total number of file sharers sued has now broken the five-digit barrier, coming in at 10,037 people sued by the RIAA since September 2003. This is an astounding figure. I just checked the Federal Judicial Caseload Statistics and found that this one wave of litigation represents 2.3% of all civil cased filed in federal court. (The average number of civil lawsuits filed per month for 2003 and 2004 was 21,363; in the 20 months since the RIAA began suing file sharers, the recording industry filed 502 lawsuits on average each month.) And given the news reports of $3,000 average settlements, this means the RIAA's probably collected over $30 million from individual file sharers."

Tuesday, May 03, 2005

War on the P2P front

Susan Crawford has been moderating a discussion on P2P at the NY Bar Association and reports that "It really is war out there."

"RIAA: Copyright law is about control. Other Guys: Copyright law is about encouraging innovation.

RIAA: Copyright infringement is immoral and is destroying small songwriters. Other Guys: The content industries should embrace online business models."

John Slashdotted

John's plan to change the world has been slashdotted.

Canada in the bad books

Canada has been put on the US intellectual property watch list after rejecting proposals for a law which would constitute the Canadian equivalent of the DMCA.

Boy scout badge in IP

The Motion Picture Association and the Hong Kong government have apparently convinced the Hong Kong Scout Association to offer a merit badge in copyright, according to Declan McCullagh.

US Economics lesson

Jonathan Rowe at On the Commons has a cutting essay on what he considers to be the "state of arrested psycho-emotional development" that US economics finds itself in.

"There is an infatuation with mechanisms and statistics – trucks and baseball cards – with little interest in the human realities and complexities that lie beneath them. There is also a solipsistic concern for the self and its desires, to the exclusion of everyone else.

That self-concern is embodied in the hypothetical person who inhabits the economics texts. It is homo economicus, the economic man, who lives according to a closed and relentless calculus of personal loss and gain. Economic man is a slug like Adam in the Garden of Eden, except that he is better at math. He has no conscience and no sense of right and wrong, only a capacity to respond to external “incentives.” His god is self-gratification; and his myopic self-seeking is what the economist calls “rationality.”

Thus a person who drives a Hummer regardless of the consequences for others is deemed “rational” provided the price of gas is cheap. “Developmentally challenged” would be a more accurate term."

Well worth a read.

EU win US Supreme Court

EU Law Web Log reports The European Community has won a "Stunning victory in US Supreme Court" You don't see headlines like that every day.

EU Copyright Head pro drm

According to CoCo the European Commission's new copyright chief is in favour of drm. This shouldn't be a surprise to anyone. He wouldn't have got the job otherwise.

Also from CoCo, an EU Commission discussion apparently predicted the collapse of broadband unless ISPs police their networks for copyright infringement. Entertainment industry PR swallowed hook, line and sinker.

Doonsebury on piracy

Doonesbury on piracy. Funny.

Open Democracy on dirty tricks at WIPO

Open Democracy have an article by Becky Hogge, mainly informed by Cory, of the parnoia-inducing shenanigans that have occasionally gone on at WIPO over the development agenda. Well written and gives an nice overview of the story.

European Libraries want to Google digitise too

More news is coming out on the proposed European libraries project to counter or compliment (depending on how you look at it) Google's plan to digitise the contents of some major UK and US academic libraries.

"The European project will be an alternative to Google's online library

In a stand against a deal struck by five of the world's top libraries and Google to digitize millions of books, 19 European libraries have agreed to back a similar European project to safeguard literature.

Nineteen European national libraries have joined forces against a planned communications revolution by Internet search giant Google to create a global virtual library, organizers said Wednesday. The 19 libraries are backing instead a multi-million euro counter-offensive by European nations to put European literature online."

I'm not really sure why it has to be a competition. Isn't it just a good idea?

Thanks to Cory and Richard Swetenham for the links.

Now combine that with John Naughton's plan to change the world as explained by his colleague, Dr Seb Wills, in this BBC article, and you've got a real story.

Patents R Us

The NYT has a story on NTP, the patent holding company that recently succeeded in getting Research In Motion to pay them a large sum in damages for alleged patent infringement involving their Blackberry portable emailer.

Land of the free market on broadband

We hear a lot about public private partnerships on this side of the pond but a fascinating battle on publicly funded versus privately funded broadband networks is playing out unexpectedly in the land of the free market. I've briefly mentioned this issue before of local government in the US funding the construction of local broadband citywide networks and the notion of perceving insurance of widespread access to such networks as a public service. had a nice summary of the story yesterday.

School kids film copyright row

The Manchester Evening News has a story about an award winning documentary made by school children, which is being threatened by a copyright row over a song by REM, which the kids didn't get permission to use. Shame but that's the nature of modern copyright. You can't expect kids to understand the complex intricacies of IP law and neither can you expect entertainment lawyers acting for a popular music group to say 'ok, go ahead' when someone wants to use currently commercially valuable creative material.