Friday, October 07, 2005

Larry's letter

Larry Lessig will be writing a weekly newsletter about creative commons between now and Christmas. You can read his first one online, naturally.

Thursday, October 06, 2005

Analysis of the Sony v Stevens mod chip decision

Kim Weatherall has an insightful analysis of the Sony v Stevens Australian High Court decision I mentioned earlier.

"Even though the law considered by the High Court will all change, the judgments get at something which is fundamental, but which it is easy to forget. And that is this:

that the technical measures used by Sony are not, in essence, about preventing infringement of copyright.
Infringement happens regardless of whether measures like Sony's are used. While anti-circumvention laws are sold as being about 'preventing piracy', the fact remains: the Sony measures do not prevent infringement, no matter which way you turn it. That's why, in the end, the court has decided the way it did.

In reality, measures like those used by Sony are about controlling use of and access to Sony PlayStation consoles. Sony controls all kinds of things about the way people use Sony consoles. For example: they control whether people can:

play legitimately purchased games sold in overseas markets;

play games created by someone other than Sony on the Sony console (something that cannot be done on a non-chipped console owing to the absence of an access code).

So while Sony can argue that it wanted to prevent piracy (it clearly did), and that the measures acted in part to deter piracy (they clearly could), Sony's own approach to the measures muddies the waters. It doesn't just act to prevent infringement, and that point is taken notice of by the Court here. One can't help but suspect the legal reasoning would look different, in this case, if Sony only used its power over the console to actually prevent use of 'pirated' disks. The way Sony goes about its business quite apparently takes its measures outside the heart of what is covered by the legislation: and justifies the High Court's approach."

Declaration of InDRMpendence

David Berland at ZDNet has issued his own declaration of inDRMpendence.

"Earlier today, after describing to a close friend the rock and the hard place that I'm between since I can't easily play the 99 cent songs I buy through Apple's iTunes music store on my $20,000 whole home entertainment setup, he said "Dave… check out Sonos' solution. It'll solve your problem for about $500 per room."

Not that I have another $500 per room to spend, but I checked into it and the solution is indeed very cool. The units that you put into each room wirelessly form a self-organized mesh and just one of them needs access to your music library on a computer or network attached storage (NAS) device. Unfortunately, if I buy Sonos' gear, it appears as though I'll run in the same problem that I'm already having. According to a technical specifications page on Sonos Web site, "DRM-encrypted and Apple or WMA Lossless formats not currently supported." In other words, songs purchased through iTunes that are wrapped in Apple's FairPlay digital rights management (DRM) envelope won't work. Neither will songs you buy from stores based on Microsoft's DRM technology found in content purchased through PlaysForSure-logoed merchants (eg: Napster-to-Go). While I hate to be the breaker of bad news, I sent him an e-mail explaining the situation.

But now that DRM is coming up on my radar every day, and the more I read about it (on the Web, in our TalkBacks, and in my e-mail), the angrier I get. To vent, I've decided to start regularly ranting about DRM. "

It's a very readable rant if you're concerned about drm.

First Monday on Open Source

First Monday have issued a special edition devoted to open source.

Mum targets RIAA with every available law

The Recording Industry v the People blog has more details on a woman who got targetted by the RIAA for copyright infringement.


This is the case peer-to-peer file sharers have been waiting for. Tanya Andersen, a 41 year old disabled single mother living in Oregon, has countersued the RIAA for Oregon RICO violations, fraud, invasion of privacy, abuse of process, electronic trespass, violation of the Computer Fraud and Abuse Act, negligent misrepresentation, the tort of "outrage", and deceptive business practices."

Are books good for you

Michael Madison thinks it is a "great time to be a copyright lawyer" and that we should think carefully about the massive digital archives of printed works that Google (Authors Guild lawsuit notwithstanding) and Yahoo and others are creating.

"If we care about books as such, and if we care about libraries as repositories for books, then we should think carefully about how to manage Google’s and Yahoo’s proposed transition from atoms to bits."

Uk copyright term extension debate

Larry Lessig has been back in the UK for another debate on copyright term. Suw Charman was making notes.


Prof. Lawrence Lessig, Creative Commons
John McVay, CEO of PACT (representing film and TV producers)
Adam Singer, CEO of MCPS and the PRS (musicians' royalty collecting societies)
Moderated by John Howkins, RSA

My preamble
I really enjoyed this debate, although I was a little surprised to see quite a lot of agreement between the panellists. Not sure how much of this was just out of a desire on the part of John McVay and Adam Singer not to get into a fierce debate in public, and how much was genuine agreement with the points that Larry Lessig was making. But I was pleased to see Adam and John take the stage with Larry - Adam joked a couple of times about how he'd get fired for publicly agreeing with Larry, and I there were definitely undercurrents that some of his constituents would likely not be happy with this event even taking place, so all credit to him for resisting pressure and helping make this debate happen.

It would be easy to paint the industry as the antichrist, and in fact I have heard Adam described as just that (ironic, then, that he joked about how some people in the industry see Larry as the antichrist). But picking an extreme standpoint and sticking to it is not always the best way to progress towards a reasonable compromise and it was encouraging to see Adam acknowledging some of Larry's points as valid and to see Larry suggesting potential middle paths.

I do have to disagree with Larry on one point, though. I don't think copyright term extension in the UK/Europe is inevitable. Maybe I'm just being optimistic, but software patents were defeated, and I think that we can defeat term extension too. But we need to start debating this in public now, not wait until it gets to a crucial juncture in parliament.

So, now, on to the notes from the evening..." here.

Aussie High Court rule in Playstation2 mod chip case

The High Court of Australia (the highest court in the land) has made its ruling in Stevens v Kabushiki Kaisha Sony Computer Entertainment. From the press release:

"The High Court of Australia today allowed an appeal against a finding that Mr Stevens’s modifications to Sony PlayStation consoles to allow unauthorised copies of games to be played were illegal."

This is the first time a country's highest court has ruled in a so called "mod-chip" case, to deal with "technological protection measures" (a form of digital rights management). At least two men have been jailed in the US for installing mod chips on gameboxes such as Sony's Playstation2 or Microsoft's Xbox.

At issue was Steven's installation of mod chips in Sony Playstation2s, which allowed users to play Playstation2 games legitimately bought in the US, for example (or other noncompatible geographic zone). Sony's Playstations, like most DVD players, have digital locks which prevent the device playing games sourced from a different geographic zone from which the machine itself was bought. The digital lock system allows the PlayStation2 to search CDs or DVDs for embedded codes identifying them as authorised games which the console will play. If it can't find the codes, it will not play the CD or DVD.

As in the US and the EU it is illegal in Australia to bypass copyright protection technologies and it seems the case turned on the specific definition of "technological protection measures." The court decided that Sony's digital locks did not qualify as "technological protection measures" because they didn't inhibit copyright infringement.

By contrast, Sony efforts to shut down similar mod chipping operations in the UK have proved successful, most notably in the Sony v Owen case which is very similar to the Stevens case in Australia.

Thanks to Pamela Jones for the news. Kim Weatherall will be producing a commentary shortly.

And since my own University will be releasing my internet law course openly soon (again), I'd better update the part that deals with the mod chip cases!

Yahoo challenge Google on books

Katie Hafner, writing in the New York Times, characterises Yahoo's decision to digitise thousands of books as a direct challenge to Google.

"An unusual alliance of corporations, nonprofit groups and universities plans to announce today an ambitious plan to digitize hundreds of thousands of books over the next several years and put them on the Internet, with the full text accessible to anyone.

The effort is being led by Yahoo, which appears to be taking direct aim at a similar project announced by its archrival, Google, whose own program to create searchable digital copies of entire collections at leading research libraries has run into a series of challenges since it was announced nine months ago.

The new project, called the Open Content Alliance, has the wide-ranging goal of digitizing historical works of fiction along with specialized technical papers. In addition to Yahoo, its members include the Internet Archive, the University of California, and the University of Toronto, as well as the National Archive in England and others."

Yahoo, contrary to Google, intend to make their book index searchable via any search engine.

Latest EDRi-gram published

The latest EDRi-gram, as usual, has a load of interesting and important stories.

A Spanish programmer who was facing jail for creating a video game which made fun of a Holy Week procession, amongst other things, has been aquited.

The European Commission has launched a public consultation on its program to digitise the collections of European libraries.

In the past nine months, 50000 people (including 4000 children) have been fined in Holland for not producing ID when requested to do so by police.

Also prominant is a note about FIPR's analysis of the proposal for another intellectual property enforcement directive.

Wednesday, October 05, 2005

Will Google censor books in Google Print

Public Interest Watch seem to think that Google are planning to censor some of the books they scan for the Google Print project. Peter Suber doesn't buy the warning.

" On its web site, PIW describes its mission as "Keeping an eye on the self-appointed guardians of the public interest." OK. But PIW is another self-appointed guardian of the public interest. If I may appoint myself as someone to keep an eye on PIW, then my recommendation is: use less caffeine. The PIW warning is an overreaction. I'm familiar with cases of Google capitulation to the Chinese government and the Church of Scientology and I join PIW in deploring them. But PIW cites no evidence that Google has censored passages from the books in the Library project. Moreover, PIW makes inconsistent recommendations about the risk of book censorship. Libraries can't both (1) withhold their books from Google indexing and (2) demand guarantees of uncensored indexing. PIW also seems unaware that Google's contract with the participating libraries gives the libraries a role in deciding what content Google will index (Par. 2.1) and the right to back out if Google's indexing doesn't live up to the agreed-upon guidelines (Par. 2.4)."

Have to say I'd never heard of "PIW" before. Suber, on the other hand, has a long track record of understanding the open access landscape.

$100 laptop

Susan Crawford is pleased with the MIT Media Lab initiative " to get tens of millions of inexpensive laptops into the hands of children in developing nations around the world."

Sun enlist Google to fight Microsoft

It looks like you're planning to smash Microsoft into oblivion. Perhaps I can help says John Paczkowski.

Criminal software

Can writing software be a crime? So asks Mark Rasch in the Register.

"Can writing software be a crime? A recent indictment in San Diego, California indicates that the answer to that question may be yes. We all know that launching certain types of malicious code - viruses, worms, Trojans, even spyware or sending out spam - may violate the law. But on July 21, 2005 a federal grand jury in the Southern District of California indicted 25 year old Carlos Enrique Perez-Melara for writing, advertising and selling a computer program called "Loverspy," a key logging program designed to allow users to capture keystrokes of any computer onto which it is installed. The indictment raises a host of questions about the criminalization of code, and the rights of privacy for users of the Internet and computers in general."

Tuesday, October 04, 2005

FIPR response to 2nd IPR Enforcement Proposal

FIPR have produced a considered response to the UK government's consultation on the latest EU proposal for a second intellectual property rights enforcement directive. (The original was passed in the Spring of 2004). I hope Ross Anderson, the chairman of FIPR and author of the response, won't mind me quoting large chunks here:

"The Foundation for Information Policy Research strongly opposes the new enforcement directive.

I will focus on the main issues.

Until now, large-scale copyright or trademark infringement has been a crime here, while patent infringement has been a matter for civil litigation. The new proposal will force the UK to make patent infringement a crime, and to criminalise incitement to infringement.

First, the criminalisation of patent infringement will damage competition, resulting in higher prices for consumers. For example, companies who make generic drugs once the molecule patent has expired are often harrassed by the original patent holder with lawsuits over secondary patents - which have a low probability of success but which are used cynically to delay competition by a year or two...

Second, new business formation and economic growth will also be hit, especially if patent infringement remains a civil matter in America. At present, all technology entrepreneurs take risks with intellectual property. There are so many patents, written so obscurely, that it's impractical to read them all; and many patents don't stand up in court once people dig hard for prior art. So a sensible entrepreneur will just start a business, and if it's successful she will have the money to pay royalties if she has to. Making patent infringement a crime rather than a civil matter will undermine this - especially as it will happen only in Europe, not in the USA. The natural reaction of European entrepreneurs will be to move to America and start their businesses there. (It's particularly interesting to note that while Microsoft is lobbying for IPRED 2 in Brussels, it's lobbying in the USA for less severe civil damages there - see here.)

Third, the criminalisation of aiding and abetting will create pressures for censorship. Phone companies and ISPs will be asked to filter Internet traffic for potentially infringing material...

Fourth, the UK software industry will be particularly vulnerable, as will people who rely on free and open-source software platforms. The Software Directive permits EU companies to reverse engineer their competitors' products in order to produce compatible, competing products. This is a historic compromise, worked out 17 years ago to promote enterprise and competition while still respecting the rights of incumbents. IPRED 2 will undermine it...

A particularly pernicious threat to free and open source software will come from the predatory abuse of IP by its enemies. At present Microsoft is reported to be funding SCO to bring civil cases against firms such as IBM that use GNU / Linux in their products...

Fifth, the disabled could be hit as the tools necessary to read copy-protected books, in order to make lawful `talking' versions of them under fair-use provisions of copyright law, could be criminalised.

Sixth, librarians already have a lot of trouble complying with copyright. For example, in the UK there are about fifty different durations of copyright, depending on whether the material is published and in what media. With electronic publications, there are often contract terms too: a library typically has dozens of contracts, all with different conditions. The current proposals will make this worse by making librarians criminally liable for aiding and abetting, unless they become more active enforcers of copyright law in their libraries. And since copyright infringements are not necessarily black and white, and librarians' employers are risk-averse, libraries will err on the safe side and discourage practices which would not actually be deemed infringements by a court. This will reduce, in practice, the freedoms to copy that UK citizens enjoy in theory.

Seventh, universities will also feel the squeeze. Academics often put preprints of papers on our web sites, which can be a technical infringement if the papers are subsequently published in a journal whose contract restricts it. Also, we suffer increasing harrassment by the record industry over students swapping songs. If university managers can be jailed as accessories for all copyright infringement that is claimed to have a commercial effect, then they will be much more aggressive at policing the content that passes over their networks - which will be profoundly contrary to academic values.

There is a specific concern for people who engage in security research. The Directive does not contain any exemption for research; it may become technically illegal to possess a laser (as it can be used to forge a hologram), or a magnetic-card reader-writer (as it can be used to forge a credit card)...

Finally, there are issues of justice. Previously most companies preferred to sue over copyright infringement rather than to bring criminal charges, because they could get discovery, injunctions and damages (see, for example, Cornish's textbook `Intellectual Property'). By insisting that Member States make such remedies available to the injured parties in criminal cases about intellectual property, the Directive will distort the system of justice itself. The police will be able to demand information from defendants in copyright cases that they are not allowed to demand even in terrorism cases (see `Brown gets tough on France, Italy over trade', Evening Standard, 9 September 2005 p 10). This will lay ministers open to ridicule from both the IP-rights lobby and the law-and-order lobby at the same time. Is that what you want to achieve?

The UK's interests are not at all well served by this directive, and I strongly urge you and your colleagues to use the opportunity of the UK Presidency to kick it into touch."

Becta adopt open source for schools

The UK Government's educational technology agency, Becta, are deploying an open source authentication system across the entire schools sector.

Monday, October 03, 2005

Yahoo's version of Google Print - lawsuit free

Yahoo have launched their own version of the Google Print project,

"Yahoo is working with the Internet Archive, the University of California and others on a project to digitize books in archives around the world and make them searchable through any Web search engine and downloadable for free, the group was set to announce Monday."

Mother targetted by RIAA sues in return

From P2PNet: "Victim sues RIAA under RICO Act"

Tim O'Reilly, The Trend Spotter

Steven Levy has done a great profile of Tim O'Reilly in Wired.

Is privacy law "environmental law" for the information age?

Dennis Hirsch of Capital University Law School asks some intersting questions in his paper, Is Privacy Regulation the Environmental Law of the Information Age?

Ever since James Boyle raised the analogy of the environment in the context of intellectual property and the public domain, I've been thinking it has a resonance across a multitude of policy areas in the information society. Dr Hirsch's paper focuses on the potential for environmental covenants, environmental management systems and emission fees to provide models for privacy regulation but there are, as he recognises, many more.

And in Who's in Charge of Who I Am? Identity and Law Online, Susan Crawford takes an insightful look at our online personas and whether we have enough control over the data associated with them.

"As we enter this new century, identity online seems full of opportunity. Someday virtual world identities will be just as important as real identities - just as ecommerce has become indistinguishable from commerce. Control over online avatar identities will have many real-world consequences, because these clouds of bits may include our credit records, our buddy lists, our job records, personal references and other reputational information, medical histories, certifications, and academic transcripts. As soon as something is valuable and persistent, we seek to associate rights and duties with it. What will be the law of online identity to which those rights apply? And what will those rights be?"

Thanks to Steve Hedley for the links.

Sunday, October 02, 2005

Google CEO has Yahoo email address

John Naughton and his colleague, Conal Walsh, express concerns about Google's impact on our personal privacy in the Observer today.

They both have some very valid points, of course. Google CEO, Eric Schmidt, (who, interestingly enough, has a Yahoo email address) recently fell out with the CNET News folks for publishing personal information, which they had found by doing a search on Google. The threat not to speak to CNET reporters for a year has been quietly dropped this week, though.