Friday, October 19, 2007

Even If You Have Nothing To Hide...

John Dean at Findlaw:

""I've got nothing to hide, so electronic surveillance doesn't bother me. To the contrary, I'm delighted that the Bush Administration is monitoring calls and electronic traffic on a massive scale, because catching terrorists is far more important that worrying about the government's listening to my phone calls, or reading my emails." So the argument goes. It is a powerful one that has seduced too many people.

Millions of Americans buy this logic, and in accepting it, believe they are doing the right thing for themselves, their family, and their friends, neighbors, community and country. They are sadly wrong. If you accept this argument, you have been badly fooled...

For several years I have been reading the work of George Washington University Law School Professor Daniel J. Solove, who writes extensively about privacy in the context of contemporary digital technology. The current apathy about government surveillance brought to mind his essay "'I've Got Nothing To Hide' And Other Misunderstandings of Privacy."

Professor Solove's deconstruction of the "I've got nothing to hide" position, and related justifications for government surveillance, is the best brief analysis of this issue I have found. These arguments are not easy to zap because, once they are on the table, they can set the terms of the argument. As Solove explains, "the problem with the nothing to hide argument is with its underlying assumption that privacy is about hiding bad things." He warns...

The concept of "privacy" encompasses many ideas relating to the proper and improper use and abuse of information about people within society. Privacy protects information not only because it would cause others to think less of the person at issue, but also simply to give us all breathing room: "Society involves a great deal of friction," Solove writes, "and we are constantly clashing with each other. Part of what makes a society a good place in which to live is the extent to which it allows people freedom from the intrusiveness of others. A society without privacy protection would be suffocation, and it might not be a place in which most would want to live.""

Content cos agree Copyright Principles for User Generated Content

A collection of large content companies including Disney, Microsoft and Fox have agreed and issued a set of Copyright Principles for User Generated Content Services.

Sue the libraries!

From Andrew Brown at the Guardian: Sue the libraries - they're letting people get content on the cheap

Daily Show for free on the Web

From SiliconValley:

"Media giant Viacom is suing YouTube, but it's also taking lessons from the online video service.

In the ongoing quest to make Internet popularity pay, Viacom's Comedy Central channel will today unveil a Web site for "The Daily Show with Jon Stewart" that's designed to satisfy the most avid fans of the mock-news show with oceans of free video clips.

Rather than providing just a sampling of the program's fare, as Viacom and other TV networks have done for years, Comedy Central is offering the works: about 13,000 video clips representing every minute of the show since its 1999 inception.

The database is searchable by both date and topic, making it a potential bonanza for students of American pop culture...

Although YouTube is a foe in the legal battle, it was a catalyst for the launch of the new Viacom site. Paul Beddoe-Stephens, vice president for digital media at Comedy Central, said he had been dreaming about such a project since "The Daily Show" started.

But without YouTube, he said, Viacom might not have recognized the true value of the archives and dragged its feet in digitally archiving and "tagging" the clips with topic and date references.

That job fell to a team of 16 Comedy Central writers and video encoders who have worked two shifts a day on the project since June to make today's deadline. Beddoe-Stephens said it was important to do the work in-house so that the tags be consistent and the brief descriptors accompanying the clips be written in a style reflecting the show's irreverent attitude."

Good move Viacom.

Thursday, October 18, 2007

98% of piracy statistics are wrong (or did I make that up)

Michael Geist points out that most statistics about the cost of "piracy" are unreliable and proves his point by dissecting the The RCMP 2005 Economic Crime Report.

Lawyerly quotes of the day

Two of my favorite recent quotes from lawyers are contained in this short collection by Roger Alford at Opinio Juris. The first was by Marty Lederman:
The strongest response that can be made to those who challenge violations of the laws of war by the Bush Administration is that these same voices were silent when the laws of war were being violated by NATO during the Kosovo war. You could call this argument “A pox on both your houses.”
and the second from Harold Koh:
I recently was talking with a Senator who said to me, “Professor, we didn’t ask the terrorists to sign the Geneva Conventions. How can you expect us to abide by commitments that they don’t adhere to?” To which I replied, “Yes, and we didn’t ask the whales to sign the Whaling Convention either. We sign these treaties to protect us from ourselves, not from them.”

History of geography of religion in 90 seconds

How the five major religions spread geographically. No commentary just a terrific use of technology to communicate. Educators note please.

Survey says maths and science skills over-rated

Christopher Sessums has been examining the survey claiming that people don't see the need for maths and science skills. I was initially tempted to launch into my usual rant about the power of mathematics and the scientific method to facilitate individual development of analytical skills but I'll refer you instead to the more measured Sessums response via a different tack:

"The report, commissioned as part of a $25 million, 10-year initiative by the Ewing Marion Kauffman Foundation to improve math, science, and technology (MST) education throughout the Kansas City area, suggests that the "2,600" parents and students surveyed clearly understand the importance of math, science, and technology skills -- they simply do not see it as important for themselves.

The report was compiled by Public Agenda, a nonpartisan opinion research organization... Interestingly enough, I found it a bit odd that Public Agenda offers a video on it's site that argues for the critical importance of math, science, and technology education in Kansas and Missouri...

This led me to wonder why a self-proclaimed, nonpartisan research organization would provide a video outlining the importance of math, science, and technology education on a site offering a "non-biased report" about parents and students being unenthusiastic about math, science and technology skills?

In then struck me that Public Agenda clearly has an agenda on controversial topics... I am not writing today to take issue with Public Agenda's agenda, but I am concerned about the credulity of their research given their claim of unbiasedness...

In the end, the Important, But Not for Me report shows us that parents have different opinions and understandings about schooling. Surprised? Public education is a complex enterprise where some individuals come out ahead, others behind. Will this ever change? Can it be changed? At some micro and meso levels, yes. But again, it depends on the collective effort of individuals in their community. Regulating education sounds good on paper, but the everyday realities of life make that a much more political and thus difficult enterprise."

Actually I do think public education can be transformed within the space of a generation - it would take 20 years, not the massively intrusive and constant political tinkering and sophistry about apparent improvements that schooling currently gets subjected to. But it would involve massive structural changes, personalising education partly Education Otherwise fashion (not necessarily abolishing schools though they would be far more anarchic places than the kind we have today e.g. with the gifted teachers having total freedom to explore their own and children's interests), to really facilitate the ability of each and every child to develop their full potential. I have absolutely no confidence that it will happen, though, so public education will continue to fail the vast majority of kids that get processed through the sausage-machine-like system. It remains in the hands of the children, their families and communities to ensure, as Samuel Langhorne Clemens said, that they do not allow their schooling to interfere with their education.

Yahoo! Executive accused of lying to Congress

Yahoo! has been accused of lying to Congress over the case of the Chinese man who got jailed for ten years after being identified by the company. John Palfrey at the Berkman Center, who has been inclined to give the company the benefit of the doubt since they started working on getting industry guidelines in the area, considers the accusations worrying.

"Rep. Tom Lantos has called on Yahoo! executives to return to Congress to talk about what they knew and when in the Shi Tao case. Rep. Lantos alleges that Yahoo!’s general counsel misled a hearing (at which I and others submitted testimony, too) in 2006 by indicating that the company knew less than it actually did about why the Chinese state police were asking for information about Shi, a dissident and journalist. Yahoo! did turn over the information; the Chinese prosecuted Shi; he remains in jail; and the issue continues to point to the single hardest thing about our US tech companies doing business in places that practice online censorship and surveillance...

The hard problem at the core of this issue is that police come to technology companies every day to ask for information about their users. It is a fair point for technology companies to make that they often cannot know much about the reason for the policeman’s inquiry. It could be completely legitimate: an effort to prevent a crime from happening or bringing a criminal to justice. In the United States, these requests come in the context of the rule of law, including a formal reliance on due process. And every once in a while, a technology company pushes back on requests for data of this sort, publicly or privately. The process is imperfect, if you consider it from a privacy standpoint, but it works — a balance is found between the civil liberties of the individual and the legitimate needs of law enforcement to keep us safe and to uphold the rules to which we all agree as citizens.

This hard problem is much harder in the context of, say, China. It’s not the only example, but it’s the example here with Shi Tao. In Yahoo!’s testimony in 2006, Michael Callahan, the executive vice president and general counsel, said that Yahoo! did not know the reasons for the Chinese state police’s request for information about Shi.

You can read the testimony for yourself here. The relevant statement by Mr. Callahan is:

“The Shi Tao case raises profound and troubling questions about basic human rights. Nevertheless, it is important to lay out the facts. When Yahoo! China in Beijing was required to provide information about the user, who we later learned was Shi Tao, we had no information about the nature of the investigation. Indeed, we were unaware of the particular facts surrounding the case until the news story emerged.” (Emphasis mine.)

The key phrase: “No information about the nature of the investigation.” Not that the information was inconclusive, or vague, or hard to translate, or possibly of concern. “No information.”

Now, we are told, there’s a big disagreement about whether that testimony was accurate...

The big problem here for me is if we’ve in fact been misled, all of us, to believe that it was one problem when it really was quite another. If “no information” proves to be inaccurate, I’m not sure how much longer I can keep extending that benefit of the doubt in this case."

Rebecca MacKinnon has been saying since July that Yahoo! knew more than they claimed.

Sequential Innovation, Patents, And Imitation

From James Besson and Eric Maskin: Sequential Innovation, Patents, And Imitation

"How could such industries as software, semiconductors, and computers have been so innovative despite historically weak patent protection? We argue that if innovation is both sequential and complementary--as it certainly has been in those industries--competition can increase firms' future profits thus offsetting short-term dissipation of rents. A simple model also shows that in such a dynamic industry, patent protection may reduce overall innovation and social welfare. The natural experiment that occurred when patent protection was extended to software in the 1980?s provides a test of this model. Standard arguments would predict that R&D intensity and productivity should have increased among patenting firms. Consistent with our model, however, these increases did not occur. Other evidence supporting our model includes a distinctive pattern of cross-licensing in these industries and a positive relationship between rates of innovation and firm entry."

Review of Amazon 1-click patent results in it being rejected

Peter Calveley reports that the USPTO has decided to throw out Amazon's 1-click patent. He's pleased since he was the one who formally challenged it.

Grokster rides again?

On Wednesday 17 October the latest court decision on the saga that was MGM v Grokster was handed down by Judge Stephen Wilson. The LA Times has a nice succinct report.

" The twisting path of MGM vs. Grokster (the entertainment industry's lawsuit against the companies behind the Grokster, Kazaa and Morpheus file-sharing programs) took another fascinating turn today. As only fanatical followers of this case may know, two of the three sets of defendants -- the companies connected to Grokster and Kazaa -- settled with the movie studios, record companies and music publishers not long after the Supreme Court ruled that p2p software companies could be held liable for inducing infringement. But StreamCast Networks, which distributes Morpheus, couldn't strike a deal with the labels and studios, so it fell to U.S. District Judge Stephen V. Wilson to apply the justices' opinion to that portion of the case. He did so a year ago, finding that StreamCast was, in fact, liable. But he did not immediately grant the plaintiffs' request for a permanent injunction, wondering aloud at a hearing how to craft an injunction that did not block non-infringing uses of Morpheus. Today, Wilson finally granted the injunction (Download the pdf here), but with caveats that will keep StreamCast in the game at least temporarily."

He's asked Streamcast to add filters to the Morpheus p2p software at the heart of the dispute but stopped short of demanding they do everything within (and out-with) their power - as in the ICraveTV case - to stop piracy. He also said the onus was on the music industry to identity the files they wanted blocked and to provide proof that they own the copyright on that music. The judge has agreed to oversee Streamcast's compliance with the order, so we can expect to see a few more trips to his courtroom by music industry lawyers complaining that StreamCast are not fulfilling their obligations with p2p co responding in kind. In crafting a carefully thought out compromise he's given himself a guarantee of an ongoing series of ear aches from both sides.

He also encourages Morpheus users to upgrade to the filtered version of the software.

Judge Wilson had ruled in favour of Grokster when the case originally appeared before him, citing the 1984 US Supreme Court's MGM v Sony precedent indicating that technology - in that case the Sony VCR - should not be banned if it had substantial non-infringing uses. The case was appealed right up to the Supreme Court and they basically side-stepped MGM v Sony when delivering the Grokster decision in June 2005 by introducing an "inducing infringement" test. Substantial non-infringing uses is no longer a get-out clause for technologies that can be used for illicit copying, especially if the behaviour of the creator or distributor of the technologies can be interpreted as encouraging or promoting the use of the technologies in such a way. So though Grokster and KaZaa have long since settled ( in the wake of the Supreme Court decision) the legal ripples from the case will continue for some time.

AG designate condemns torture memos

From AP via Findlaw:

"Attorney General-designate Michael Mukasey said Wednesday the president does not have the authority to use torture techniques against terrorism suspects. This stance was not taken by predecessor Alberto Gonzales and is considered key to the nominee's confirmation as the top U.S. law enforcement official.

Mukasey repudiated a 2002 Justice Department memo that said the president has the power to issue orders that violate the Geneva Conventions as well as international and U.S. laws prohibiting torture."

He also said there's no room for political interference with the running of the Justice Department. That's promising.

Update: Marty Lederman says:

"Just now, in response to repeated questions, he insisted that he did not know enough to say whether waterboarding, or any other technique, is torture, cruel treatment under Common Article 3, or otherwise unlawful. It's really remarkable how far we have fallen when a jurist of Judge Mukasey's caliber cannot answer such questions without hesitation."

That's not so promising. The more he talks about torture the less and less promising it looks. Brian Tamanaha says
"I had lunch today with a prominent German Constitutional scholar who was flabbergasted about something that I could not adequately explain.

He asked me how the candidate to become the top legal official of the U.S. government could say that he does not know whether water-boarding constitutes "torture" (as Judge Mukasey stated yesterday in his confirmation hearings). My colleague insisted that in Germany any person who uttered such a statement would be finished. He found it shocking that a person could say this in America and still become our Attorney General.

At first I was surprised at his genuine disbelief; and then I felt a bit ashamed that I did not also react with disbelief. I have become so cynical about the Bush Administration on the torture issue that this strikes me as ordinary stuff.

Seeing the astonishment through the eyes of an outsider made me realize how far we have deteriorated in our moral sense about the impropriety of torture. For Mukasey to say that he first must study whether water boarding is "torture" is a disgrace."

Wednesday, October 17, 2007

Yahoo! Convenience wins so no more drm

Yahoo!'s Ian Rogers gave a wonderful presentation at a digital media conference a couple of weeks ago in the midst of which he declared that Yahoo! would no longer deal with the music labels if they required DRM.

"Back in 1999 I ran for Rob and Justin. Napster came on the scene and we thought, “Wow! There’s a market for MP3s!” We had millions of people using Winamp, visiting for skins and plugins — it was by far the largest community of MP3-lovers. We naively and enthusiastically suggested to labels that we’d be a great place to sell MP3s. The response from the labels at the time was universally, “What’s MP3?” or “Um, no.”

Instead they commenced suing Napster. We were naive to be sure, but we were genuinely surprised by the approach. Suing Napster without offering an alternative just seemed like a denial of fact. Napster didn’t invent the ability to do P2P, it was inherent in TCP/IP. It was like throwing Newton in jail for popularizing the concept of gravity...

But now, eight years later, Amazon’s finally done what was clearly the right solution in 1999. Music in the format that people actually want it in, with a Web-based experience that’s simple and works with any device... It only took 8 years.

8 years. How much opportunity have we lost in those 8 years? How much naivety and hubris did we have when we said, “if we build it they will come”? What did we spend? And what did we gain? We certainly didn’t gain mass user adoption or trust, two prerequisites to success on the Internet.

Inconvenient experiences don’t have Web-scale potential, and platforms which monetize the gigantic scale of the Web is the only way to compete with the control you’ve lost, the only way to reclaim value in the music industry...

Yahoo! Music demonstrates this scale discrepancy perfectly... Oh have we got a deal for you! If you’re on Windows XP or Vista, and you’re in North America, just download this 20MB application, go through these seven install screens, reboot your computer, go through these five setup screens, these six credit card screens, give us $160 dollars and POW! Now you can hear that song you wanted to hear…if you’re still with us. Yahoo! didn’t want to go through all these steps. The licensing dictated it. It’s a slippery slope from “a little control” to consumer unfriendliness and non-Web-scale products and services...

But this isn’t news, nor is it particular to the digital age. History tells us: convenience wins, hubris loses. “Who is going to want a shitty quality LP when these 78s sound so good? Who wants a hissy cassette when they have an awesome quadrophonic system? Who wants digitized music on discs now that we have Dolby on our cassettes? Who wants to listen to compressed audio on their computers?” ANSWER: EVERYONE. Convenience wins, hubris loses. [check Fredric Dannen’s comments here]

I’m here to tell you today that I for one am no longer going to fall into this trap. If the licensing labels offer their content to Yahoo! put more barriers in front of the users, I’m not interested. Do what you feel you need to do for your business, I’ll be polite, say thank you, and decline to sign. I won’t let Yahoo! invest any more money in consumer inconvenience. I will tell Yahoo! to give the money they were going to give me to build awesome media applications to Yahoo! Mail or Answers or some other deserving endeavor. I personally don’t have any more time to give and can’t bear to see any more money spent on pathetic attempts for control instead of building consumer value. Life’s too short. I want to delight consumers, not bum them out...

Lets envision the end state and drive there as quickly as possible. Lets not waste another eight years on what is obvious today. Lets build the tools of a healthy media Web and reward music-lovers for being a part of it.

In the end you get what you pay for. I won’t spend another dime paying engineers to build false control, making listening to music harder for music-lovers. I will put all of my energy into making it easier and making the experience better. I suggest you do the same."

Hopefully Yahoo Entertainment will follow words with actions but I can't see DRM going away any time soon. Thanks to Ian again for the pointer.

Competition regulators ignore Google privacy concerns

Ian is concerned that the EU Competition Commissioner has refused to look into the privacy implications of the Google takeover of DoubleClick.

This is both unfortunate and another sign that competition authorities are taking some time to adjust to the new world of winner-takes-all infogopolies. As we have seen with the Microsoft competition enquiries, more traditional competition regulation has not proven up to the task of remedying the monopolistic behaviour of companies taking advantage of network effects to crush their rivals. Regulators need to move faster, be more willing to impose structural remedies, and to act in the spirit of competition law — preventing abuse of dominant positions, whether the impact is on competitors or consumers. As Senator Herb Kohl told a recent US Senate Judiciary Committee hearing:

"Some commentators believe that antitrust policymakers should not be concerned with these fundamental issues of privacy, and merely be content to limit their review to traditional questions of effects on advertising rates. We disagree. The antitrust laws were written more than a century ago out of a concern with the effects of undue concentrations of economic power for our society as a whole, and not just merely their effects on consumers' pocketbooks. No one concerned with antitrust policy should stand idly by if industry consolidation jeopardizes the vital privacy interests of our citizens so essential to our democracy."
Well said both.

Free speech trumps IP in fantasy baseball

The IP wars have seen an ongoing series of court battles between major sports franchises such as the baseball folks in the US and others using e.g. the statistics from the games for other purposes, such as fantasy leagues. Major League Baseball Advanced Media has lost the latest skirmish in an appeal court decision favouring CBC Distribution.

"C.B.C. Distribution and Marketing, Inc., brought this action for a declaratory
judgment against Major League Baseball Advanced Media, L.P., to establish its right
to use, without license, the names of and information about major league baseball
players in connection with its fantasy baseball products. Advanced Media counterclaimed, maintaining that CBC's fantasy baseball products violated rights of publicity belonging to major league baseball players and that the players, through their association, had licensed those rights to Advanced Media, the interactive media and Internet company of major league baseball...

The Supreme Court has directed that state law rights of publicity must be
balanced against first amendment considerations, see Zacchini v. Scripps-Howard
Broad., 433 U.S. 562 (1977), and here we conclude that the former must give way to
the latter. First, the information used in CBC's fantasy baseball games is all readily
available in the public domain, and it would be strange law that a person would not
have a first amendment right to use information that is available to everyone. It is true
that CBC's use of the information is meant to provide entertainment, but "[s]peech that
entertains, like speech that informs, is protected by the First Amendment because
'[t]he line between the informing and the entertaining is too elusive for the protection
of that basic right.' " Cardtoons, L.C. v. Major League Baseball Players Ass'n, 95
F.3d 959, 969 (10th Cir. 1996) (quoting Winters v. New York, 333 U.S. 507, 510
(1948)); see also Zacchini, 433 U.S. at 578...

Courts have also recognized the public value of information about the game of
baseball and its players, referring to baseball as "the national pastime." Cardtoons,
95 F.3d at 972. A California court, in a case where Major League Baseball was itself
defending its use of players' names, likenesses, and information against the players'
asserted rights of publicity, observed, "Major league baseball is followed by millions
of people across this country on a daily basis ... The public has an enduring fascination
in the records set by former players and in memorable moments from previous games
... The records and statistics remain of interest to the public because they provide
context that allows fans to better appreciate (or deprecate) today's performances."
Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400, 411 (2001). The Court
in Gionfriddo concluded that the "recitation and discussion of factual data concerning
the athletic performance of [players on Major League Baseball's website] command
a substantial public interest, and, therefore, is a form of expression due substantial
constitutional protection." Id. We find these views persuasive."

So free use of sports statistics in the public domain effectively trump the publicity rights of the sporting franchise and the players.

The tyranny of the majority and the minority

John Stuart Mill wrote, in On Liberty:

"Like other tyrannies, the tyranny of the majority was at first, and is still vulgarly, held in dread, chiefly as operating through the acts of the public authorities. But reflecting persons perceived that when society is itself the tyrant — society collectively over the separate individuals who compose it — its means of tyrannizing are not restricted to the acts which it may do by the hands of its political functionaries. Society can and does execute its own mandates; and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practices a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself. Protection, therefore, against the tyranny of the magistrate is not enough; there needs protection also against the tyranny of the prevailing opinion and feeling, against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development and, if possible, prevent the formation of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own. There is a limit to the legitimate interference of collective opinion with individual independence; and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs as protection against political despotism...

The object of this Essay is to assert one very simple principle...That principle is, that the sole end for which mankind are warranted, individually or collectively in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil, in case he do otherwise."

It is brought to mind every time a politician has a knee-jerk reaction to the latest headline or opinion poll and launches into one of those "the British public demands..." bouts of empty rhetoric. But also when those in positions of power and trust, like Blair, Brown, Cheney and Bush, demonstrate an absolute contempt for the rule of law in their panicky war on terror.

"For three decades Vice President Dick Cheney conducted a secretive, behind-closed-doors campaign to give the president virtually unlimited wartime power. Finally, in the aftermath of 9/11, the Justice Department and the White House made a number of controversial legal decisions. Orchestrated by Cheney and his lawyer David Addington, the department interpreted executive power in an expansive and extraordinary way, granting President George W. Bush the power to detain, interrogate, torture, wiretap and spy -- without congressional approval or judicial review.

Now, as the White House appears ready to ignore subpoenas in the investigations over wiretapping and U.S. attorney firings, FRONTLINE examines the battle over the power of the presidency and Cheney's way of looking at the Constitution...

After Sept. 11, Cheney and Addington were determined to implement their vision -- in secret. The vice president and his counsel found an ally in John Yoo, a lawyer at the Justice Department's extraordinarily powerful Office of Legal Counsel (OLC). In concert with Addington, Yoo wrote memoranda authorizing the president to act with unparalleled authority."Through interviews with key administration figures, Cheney's Law documents the bruising bureaucratic battles between a group of conservative Justice Department lawyers and the Office of the Vice President over the legal foundation for the most closely guarded programs in the war on terror," says FRONTLINE producer Michael Kirk...

In his most extensive television interview since leaving the Justice Department, former Assistant Attorney General Jack L. Goldsmith describes his initial days at the OLC in the fall of 2003 as he learned about the government's most secret and controversial covert operations. Goldsmith was shocked by the administration's secret assertion of unlimited power...

As Goldsmith began to question his colleagues' claims that the administration could ignore domestic laws and international treaties, he began to clash with Cheney's office. According to Goldsmith, Addington warned him, "If you rule that way, the blood of the 100,000 people who die in the next attack will be on your hands."

Goldsmith's battles with Cheney culminated in a now-famous hospital-room confrontation at Attorney General John Ashcroft's bedside. Goldsmith watched as White House Counsel Alberto Gonzales and Chief of Staff Andy Card pleaded with Ashcroft to overrule the department's finding that a domestic surveillance program was illegal. Ashcroft rebuffed the White House, and as many as 30 department lawyers threatened to resign. The president relented.

But Goldsmith's victory was temporary, and Cheney's Law continues the story after the hospital-room standoff. At the Justice Department, White House Counsel Gonzales was named attorney general and tasked with reasserting White House control. On Capitol Hill, Cheney lobbied Congress for broad authorizations for the eavesdropping program and for approval of the administration's system for trying suspected terrorists by military tribunals."

More on the themes of the Frontline programme here and further links of interest here. Thanks to Marty Lederman, who was also interviewed for the programme, for the pointer. In addition Jack Balkan has this to say about the Bush administration's attempts to get retroactive immunity for telcos it asked to spy for them illegally:

"The Bush Administration has claimed that everything it has done in the past seven years is legal. On the pages of this blog in the past five years we have tried repeatedly to show that this is not true, and that in fact that the Bush Administration has repeatedly broken the laws and tried to cover things up. Congress must understand that is it not dealing with an Administration that tries to play fair when it comes to respect for the rule of law. That is not meant to impugn the many fine lawyers at the Justice Department who have tried to do their jobs honorably under increasingly difficult conditions. Rather, my point is that at the top ranks of this Administration is a cabal of people who think that rules are made to be broken, or at the very least bent into unrecognizable shapes. Unfortunately they have been enabled by a handful of very bright and ambitious young lawyers who have combined sycophancy to power with ideological zeal. If this were a Mafia movie, we would call these practices an ongoing criminal conspiracy. Given the systemic nature of the lawbreaking, a RICO action might be appropriate. But this is no episode of the Sopranos. These people run the government of the United States, and they really don’t care much what the law says."

US judge refuses extradition to Italy on torture grounds

Another US judge has unexpectedly weighed into the torture debate by refusing to extradite a convicted drug trafficker because he would be subject to a tough prison regime where he would be leaned on to testify against others. Judge Sitgraves is quoted by the LA Times as saying:

"This coercion... is not related to any lawfully imposed sanction or punishment, and thus constitutes torture."

The Italians were less than impressed and mentioned one or two US failures on human rights such as the use of the death penalty and torture in Abu Ghraib and Gunatanamo Bay.

Tuesday, October 16, 2007

Canadian Mint to make a mint from IP?

I find this funny.

"David Miller, the mayor of Toronto, wants Canada’s federal government to share some of its national sales tax with cities. But all that his campaign has generated so far is a 47,680 Canadian dollar ($48,972) invoice from the federal mint.

Apparently, the mint not only makes the money in Canada, it owns the intellectual property rights, as well.

Mr. Miller wants the equivalent of one cent from the 6 percent goods and services tax, (or G.S.T. as it is commonly known). To inaugurate the campaign, Toronto began handing out posters, bumper stickers and buttons, most of which bear the slogan, “One Cent of the G.S.T. NOW,” with a photo of a Canadian penny.

In Ottawa, the intellectual property office of the Royal Canadian Mint soon told city officials that they needed permission to use the penny’s image. The invoice followed shortly afterward...

The mint acknowledges that it has no trademark rights to the words “one cent.” (Though the musician Curtis Jackson has registered his stage name, 50 Cent, in Canada.) The design of the penny, however, is copyrighted."

A spokesman for the Mint said the invoice was based on what an advertising agency would have charged the city for the campaign (they didn't use an agency, just their own employees) and that “We have to protect our property from abuse”

Howard Knoff has some sensible commentary, as you would expect.

Unlocking the iPhone is legal

Tim Wu has also had fun unlocking his new iPhone.

"I approached a typically chipper Apple salesman, clad in black with spiked hair. "I'm purchasing an iPhone," I began, "but I'm a T-Mobile customer, and so I was just wondering, I read that you can unlock the phone—"

"No," he cut me off.

"But I had read that it's possible to unlock the phone and use it—"

"You heard wrong," he said, his voice rising. "That's impossible." The tone was harsh; a few people looked over.

In the absence of friendly advice from Apple's employees, I handed over $432.42, took the phone home... I followed the unlocking guide prepared by Macworld's Cyrus Farivar. He took me to, the best source for detailed instructions...

As I unlocked it, I was constantly aware of the risk of turning my brand-new phone into a gleaming paperweight...None of this is for the faint of heart, but it's also exhilarating. Especially when you hit the last screen:


The good news is that my iPhone works flawlessly...

Did I do anything wrong? When you buy an iPhone, Apple might argue that you've made an implicit promise to become an AT&T customer. But I did no such thing. I told the employees at the Apple Store that I wanted to unlock it, and at no stage of the purchasing process did I explicitly agree to be an AT&T customer. There was no sneakiness; I just did something they didn't like.

Meanwhile, lest we forget, I did just throw down more than $400 for this little toy. I'm no property-rights freak, but that iPhone is now my personal property, and that ought to stand for something...

The worst thing that you can say about me is that I've messed with Apple's right to run its business exactly the way it wants. But to my mind, that's not a right you get in the free market or in our legal system."

Cheap HIV drugs are more important than patents

Lara Santoro at the LA Times argued last week that Cheap HIV drugs are more important than patents.

"In January, the Thai government gave its domestic drug manufacturers carte blanche to effectively copy the formula for Abbot Laboratories' AIDS drug, Kaletra, and reproduce it in Thailand at a fraction of the cost.

A storm of protest ensued. The U.S. placed Thailand on a "priority watch list" of badly behaved countries. The European Union followed suit with a sharply worded letter from Trade Commissioner Peter Mandelson lamenting Thailand's outrageous disregard for Abbot's intellectual property.

Yet, contrary to common perception, Thailand's move was, and remains, in perfect observance of international law...

Why, then, has the Thai government's attempt to acquire a lifesaving drug run into a wall of corporate indignation and government censure?

The standard answer is that pharmaceutical advances are based on the respect of intellectual property. Without the protective role of patents, the argument goes, drug makers would fail to recover their research-and-development costs and consequently shy away from pursuing new drugs.

The truth is that more than half of all antiretroviral drugs were researched entirely on U.S. government grants. Both lopinavir and ritonavir, the two antiretroviral agents in Kaletra, were researched with public money. "Heck, we paid for them," said James Love, director of the Washington-based Consumer Project on Technology.

The pharmaceutical industry lives in fear of a cheap-drug domino effect. Thailand's compulsory license could inspire the entire continent of Africa -- where 70% of the world's 40 million HIV/AIDS cases are found -- to issue licenses for a series of drugs.

Countries such as Kenya and Uganda, not to mention South Africa, have not only the manufacturing base needed to copy and reproduce drugs for a fraction of their cost, they also have the right. So what's stopping them? "There is a history of trade pressures," Love said. "Very few countries are willing to face such pressures."

Despite death on an unimaginable scale, talk of compulsory licensing remains anathema in most of Africa, so millions of lives are left in the hands of a well-meaning yet ineffectual group of international donors, whose solution to the problem has been to purchase and distribute generic AIDS drugs made in India and Brazil. It's a noble effort, but with pitiful results. Fifteen years after the invention of antiretrovirals, only one in four Africans has access to them."

Mapping OA to OS

I missed this earlier this year when Glyn Moody looked to the parallels between the open access and free and open source software universes. Peter Suber provides a handy mapping diagram. And I see Glyn Moody approves of his dervative work.

Tolerated lawbreaking

Tim Wu has been thinking about breaking laws.

"At the federal prosecutor's office in the Southern District of New York, the staff, over beer and pretzels, used to play a darkly humorous game. Junior and senior prosecutors would sit around, and someone would name a random celebrity—say, Mother Theresa or John Lennon.

It would then be up to the junior prosecutors to figure out a plausible crime for which to indict him or her. The crimes were not usually rape, murder, or other crimes you'd see on Law & Order but rather the incredibly broad yet obscure crimes that populate the U.S. Code like a kind of jurisprudential minefield: Crimes like "false statements" (a felony, up to five years), "obstructing the mails" (five years), or "false pretenses on the high seas" (also five years). The trick and the skill lay in finding the more obscure offenses that fit the character of the celebrity and carried the toughest sentences. The, result, however, was inevitable: "prison time."

As this story suggests, American law is underenforced—and we like it that way. Full enforcement of every last law on the books would put all of us in prison for crimes such as "injuring a mail bag." No enforcement of our laws, on the other hand, would mean anarchy. Somehow, officials must choose what laws really matter.

This series explores the black spots in American law: areas in which our laws are routinely and regularly broken and where the law enforcement response is … nothing. These are the areas where, for one reason or another, we've decided to tolerate lawbreaking and let a law—duly enacted and still on the books—lay fallow or near dead.

Why are there dead zones in U.S. law? The answer goes beyond the simple expense of enforcement but betrays a deeper, underlying logic. Tolerated lawbreaking is almost always a response to a political failure—the inability of our political institutions to adapt to social change or reach a rational compromise that reflects the interests of the nation and all concerned parties. That's why the American statutes are full of laws that no one wants to see fully enforced—or even enforced at all...

The importance of understanding why and when we will tolerate lawbreaking cannot be overstated. Lawyers and journalists spend most of their time watching the president, Congress, and the courts as they make law. But tolerance of lawbreaking constitutes one of the nation's other major—yet most poorly understood—ways of creating social and legal policy. Almost as much as the laws that we enact, the lawbreaking to which we shut our eyes reflects how tolerant U.S. society really is to individual or group difference. It forms a major part of our understanding of how the nation deals with what was once called "vice." While messy, strange, hypocritical, and in a sense dishonest, widespread tolerance of lawbreaking forms a critical part of the U.S. legal system as it functions.

The motto of the Web site Erowid Experience Vaults is "You Cannot Deny the Experiences of Others." Erowid is the Web's best known site for recording drug experiences. Thousands of contributors describe in vivid detail their experiences with this or that pharmaceutical, creating something like a Zagat Guide for the discriminating drug user...

But what's particularly interesting about the Experience Vaults is how many of the drugs reviewed there aren't actually classic "illegal drugs," like heroin or cocaine, but rather pharmaceuticals, like Clonazepam.

That's because over the last two decades, the pharmaceutical industry has developed a full set of substitutes for just about every illegal narcotic we have. Avoiding the highly charged politics of "illegal" drugs, the pharmaceutical industry, doctors, and citizens have thus quietly created the means for Americans to get at substitutes for almost all the drugs banned in the 20th century. Through the magic of tolerated use, it's actually the other drug legalization movement, and it has been much more successful than the one you read about in the papers...

Over the last two decades, the FDA has become increasingly open to drugs designed for the treatment of depression, pain, and anxiety—drugs that are, by their nature, likely to mimic the banned Schedule I narcotics. Part of this is the product of a well-documented relaxation of FDA practice that began under Clinton and has increased under Bush. But another part is the widespread public acceptance of the idea that the effects drug users have always been seeking in their illicit drugs—calmness, lack of pain, and bliss—are now "treatments" as opposed to recreation. We have reached a point at which it's commonly understood that when people snort cocaine because they're depressed or want to function better at work, that's drug trafficking; but taking antidepressants for similar purposes is practicing medicine...

The birth of a new law is something the media, lawyers, and academics pay great attention to. But the decay and death of old laws can be just as important, even when they're unobserved...

In the 1960s, for example, the TV broadcast industry did everything it could to squash the new "community antenna" (cable TV) industry. In the 1970s, the TV and film industries despised the new Betamax VTR (the VCR) and tried their level best to kill the "Japanese invader." And in the early 2000s, the music industry systematically destroyed Napster, Grokster, and any other company that dared name itself similarly.

But in the late 2000s, media companies seem to be changing their tune. Mass, industry-threatening piracy is still never tolerated. But the tough-guy act typified by the music industry of the early 2000s, and recently in the case of the $222,000 fine imposed on Jammie Thomas, may be going out of fashion. Instead, media companies—particularly in television and film—are at least sometimes practicing a mellower concept called "tolerated use." They watch and see whether infringements are actually harmful or not before sending out their copyright pit bulls...

In a well-functioning political system, the copyright law might be reformed in a grand negotiation between all interested parties, with the long-term goal of separating out the harmful infringement from the harmless. But in 21st-century America, that's not a result our political system is capable of reaching. And that's why, here as in the rest of the series, we leave it to tolerated lawbreaking to find some way out."

Google and Random House close to deal on book search

Random House are reportedly close to agreeing to get involved in Google's book search project, despite continuing to report the copyright lawsuit against Google by the American Association of Publishers.

Pfizer Joins Online Doctors' Forum

Via Findlaw:

"A year-old online forum where 30,000 doctors swap medical observations has lined up a partnership with Pfizer Inc. - an alliance that runs counter to the site's founding ideal to give doctors a place to communicate without the pharmaceutical industry listening in...'s expected any postings by Pfizer's medical staff must be clearly identified as coming from a Pfizer source logging onto the system securely from an office computer...

When the service began in September 2006, it was intended as an advertisement-free forum for communication among doctors about topics such as drug side effects - in effect, a sanctuary from the influence of pharmaceutical industry and its sales staffs...

Pfizer will tap into a social network of doctors that resembles the popular Web site MySpace, but with the focus on professional concerns rather than personal information.

Pfizer's hundreds of medical staff will be able to access Sermo, but it will be off-limits to the rest of the company's 90,000 employees, said Dr. Michael Berelowitz, a senior vice president who oversees Pfizer's physicians...

Berelowitz said Pfizer also has allied itself with Sermo because of the site's growing influence in medical circles.

Sermo says it's adding physician members at a rate of 1,000 to 2,000 a week. It reached an agreement in May with the American Medical Association, and in August with the Food and Drug Administration. The agency's Center for Devices and Radiological Health entered a six-month agreement to monitor doctors' Sermo exchanges and eventually gauge whether to rely long-term on Sermo's postings to supplement existing government systems to track product safety."

Jammie Thomas appeals $222k damages

Jammie Thomas who lost to the tune of $222,000 her file sharing case against the RIAA has decided to appeal the verdict. She's not challenging the decision to hold her responsible for copying without permission, just the size of the award made against her.

"Defendant, by and through her undersigned attorney, hereby moves the Court for an
order granting a new trial pursuant to Fed. R. Civ. P. 59, or in the alternative, for
remittitur. Defendant’s singular grounds for the relief sought is that the amount of the award is excessive and in violation of the Due Process Clause of the United States

Defendant requests that the Court grant a new trial on the issue of damages so that
the Court can determine the extent of plaintiffs’ actual damages or harm suffered by the uploading of the 24 subject recordings. This inquiry is necessary because the amount of any award above and beyond actual damages or harm suffered is purely punitive, and as such must be scrutinized by the Court to insure that it is not grossly excessive, thereby violating the Due Process Clause of the United States Constitution.

Alternatively, the Court is urged to order remittitur. Song recordings are typically
purchased over the internet for about one dollar. Assuming plaintiffs receive 70 cents per song,1 and pretending that defendant’s downloading went to someone other than plaintiffs’ agents, plaintiffs’ damages would be $16.80.2 Multiplied by the maximum Constitutional limits suggested in BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996) and in State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408, 123 S. Ct. 1513, 155 L. Ed. 2d 585 (2003), a proper remittitur would be in the amount of zero dollars to $151.20.

If the Court decides that the minimum amount of the remittitur is fixed at $750 per
song recording, defendant argues that the Court has the authority, if not the duty, to test the Constitutionality of the application of the minimum statutory amount in the instant matter, because that number is more than 1,000 times the actual damages or harm suffered by plaintiffs...

...the Court is beseeched to grant a new trial, or alternatively, remittitur for an amount that does not offend the Due Process Clause of the United States Constitution, which amount should be between zero dollars and $150 total, comparing actual damages to the penalty; or $750 total if the Court chooses to aggregate and deem all 24 song recordings a single infringing act and then applies the statutory minimum penalty notwithstanding the ratio of actual damages or harm suffered to the penalty amount."

Somehow I don't think the RIAA will go along with the notion that she is only responsible to the tune of $151.20 or $750 and sadly I can't see the appeal court overturning the statutory damages of upwards of $750 per item either. We can only hope proportionality through due process will prevail though it doesn't tend to be a prominent feature in modern IP cases.

SCOTUS reject Microsoft appeal on racketeering

The US Supreme Court has decided that Mcirosoft and electronics retailer Best Buy will have to face racketeering charges in court.

"The Supreme Court Monday rejected an appeal by Microsoft Corp. and a unit of electronics retailer Best Buy Co. Inc. to dismiss a lawsuit alleging violation of racketeering laws through fraudulently signing up customers for Microsoft's online service.

The companies asked the justices to overturn a May ruling by the San Francisco-based 9th U.S. Circuit Court of Appeals, which said the civil suit could proceed. The Supreme Court is letting that ruling stand, which means the class-action lawsuit involving thousands of consumers with complaints against the companies will be litigated in federal district court."

Acacia, FOSS and the Supreme Court in 1882

I've been thinking about the Acacia patent infringement suit against Red Hat and the companies previous pursuit of a range of entities from educational institutions to the porn and broadcasting industries. I realised that it reminded me of a quote James Gleick mentioned from a US Supreme Court case in the 19th century (in his "Patently Absurd" essay from 2000, which is still well worth reading), when noting that patent rights lead to higher prices:

"It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax upon the industry of the country... It embarrasses the honest pursuit of business."

The slightly fuller version is:

"The design of the patent laws is to reward those who make some substantial discovery or invention, which adds to our knowledge and makes a step in advance in the useful arts. Such inventors are worthy of all favor. It was never the object of patent laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures. Such an indiscriminate creation of exclusive privileges tends rather to obstruct than to stimulate invention. It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax on the industry of the country, without contributing anything to the real advancement of the arts. It embarrasses the honest pursuit of business with fears and apprehensions of unknown liability lawsuits and vexatious accounting for profits made in good faith."

(I just checked and sure enough Red Hat has most of the more comprehensive version of the quote on its IP in public policy page)

The case was Atlantic Works vs. Brady, 1017 U.S. 192, 200 (1882) - a dispute over a design of a dredge boat - and the quote from the opinion delivered by Justice Bradley. Interestingly enough, Justice Douglas refers to this quote in his concurring opinion in another patent case 68 years later, The Great Atlantic and Pacific Tea Co. vs. Supermarket Corp., 340 U.S. 147 (1950) - a dispute over a cashier's counter - and precedes it with this:

"It is not enough that an article is new and useful. The Constitution never sanctioned the patenting of gadgets. Patents serve a higher end - the advancement of science. An invention need not be as startling as an atomic bomb to be patentable.
But it has to be of such quality and distinction that masters of the scientific field in which it falls will recognize it as an advance." He then lists a whole series of patent disputes which he reckons should never have seen the light of day, my favorites being:

"Hendy v. Miners' Iron Works, 127 U.S. 370: Putting rollers on a machine to make it moveable."


"Shenfield v. Nashawannuck Mfg. Co., 137 U.S. 56: Using flat cord instead of round cord for the loop at the end of suspenders."


"Morgan Envelope Co. v. Albany Perforated Wrapping Paper Co., 152 U.S. 425: An oval rather than cylindrical toilet paper roll, to facilitate tearing off strips."

I suspect the Acacia litigation may be more damaging ultimately than the SCO case, as yet again we confirm Hegel's belief that 'what we learn from history is that we do not learn from history'. And I wonder what Justices Douglas and Bradley would have made of the patent litigation frenzy in modern times?

(Btw, the Amazon 1-click patent Gleick refers to is still live - in September this year a review panel at the US Patent and Trademark Office rejected the decision of a patent examiner that the patent failed the obviousness test. Slashdot, not surprisingly, has more on the story)

Gore derangement syndrome

From Paul Krugman at the NYT: Gore Derangement Syndrome

"On the day after Al Gore shared the Nobel Peace Prize, The Wall Street Journal’s editors couldn’t even bring themselves to mention Mr. Gore’s name. Instead, they devoted their editorial to a long list of people they thought deserved the prize more.

And at National Review Online, Iain Murray suggested that the prize should have been shared with “that well-known peace campaigner Osama bin Laden, who implicitly endorsed Gore’s stance.” You see, bin Laden once said something about climate change — therefore, anyone who talks about climate change is a friend of the terrorists...

The worst thing about Mr. Gore, from the conservative point of view, is that he keeps being right. In 1992, George H. W. Bush mocked him as the “ozone man,” but three years later the scientists who discovered the threat to the ozone layer won the Nobel Prize in Chemistry. In 2002 he warned that if we invaded Iraq, “the resulting chaos could easily pose a far greater danger to the United States than we presently face from Saddam.” And so it has proved...

Today, being a good Republican means believing that taxes should always be cut, never raised. It also means believing that we should bomb and bully foreigners, not negotiate with them.

So if science says that we have a big problem that can’t be solved with tax cuts or bombs — well, the science must be rejected, and the scientists must be slimed...

Which brings us to the biggest reason the right hates Mr. Gore: in his case the smear campaign has failed. He’s taken everything they could throw at him, and emerged more respected, and more credible, than ever. And it drives them crazy."

Monday, October 15, 2007

Lip-smacking copyright suit confronts Pepsi

From the Independent: Lip-smacking copyright suit confronts Pepsi

"Lawyers acting for the estate of one of Britain's most celebrated celebrity photographers, Bob Carlos Clarke, who died last year, have picked a fight with the multinational bigwigs at Pepsi. They've decided to take legal action against the soft drinks company, claiming that their latest advert, which shows a young woman licking her lips, has directly ripped off Clarke's work The Lick/ Mouth, and are seeking hefty remuneration."

You'll see to take a look at the print edition of the paper to see the two photos but a copyright suit in licking lips?

MIT student arrested for wearing circuit board at airport

A first year MIT student has triggered the latest airport security panic by walking into Boston airport wearing an electronic badge. Thanks to Bruce Schneier for the link.

Update: Henry Jenkins has some thoughtful commentary.

RIAA envy PRS?

Userfriendly cartoonist, J.D "Illiad Frazer, wonders if maybe the RIAA might be envious of the Performing Rights Society following their lawsuit against Kwik-Fit due to the company's mechanics playing their radios too loudly at work. Brilliant.

Red Hat, Novell sued for patent infringement

It looks like Steve Ballmer's call for Red Hat and other linux companies to embrace software patents was an early warning that they were about to be sued for patent infringement. Pamela Jones has the story at Groklaw:

" The first ever patent infringement litigation involving Linux. Here's the patent, for those who can look at it without risk. If in doubt, don't. Here's the complaint [PDF]...

The plaintiff is asking for an injunction, along with damages:
Plaintiffs IP Innovation and Technology Licensing Corp. claim to have the rights to U.S. Patent No. 5,072,412 for a User Interface with Multiple Workspaces for Sharing Display System Objects issued Dec. 10, 1991 along with two other similar patents.

Defendants Red Hat Inc. and Novell have allegedly committed acts of infringement through products including the Red Hat Linux system, the Novell Suse Linex Enterprise Desktop and the Novell Suse Linex Enterprise Server.

"Red Hat's and Novell's infringement, contributory infringement and inducement to infringe has injured plaintiffs and plaintiffs are entitled to recover damages adequate to compensate them for such infringement but in no event less than a reasonable royalty," the original complaint states.

The plaintiffs also allege that defendants received notice of the patents, therefore the infringing activities have been deliberate and willful.

Plaintiffs are seeking an injunction from the court, increased damages and other relief that the court or a jury may deem just and proper.

You might recall the patent was used in litigation against Apple in April 2007, and Beta News reported at the time that it's a 1991 Xerox PARC patent. But ars technica provided the detail that it references earlier patents going back to 1984. Appropriately enough. If you use Google to search for "IP Innovation LLC 5,072,412" you'll find more. Note that it's IP Innovation, not plural. There is another company using IP Innovations. I gather Apple paid them to go away in June.

This patent has been pointed to as an example of the need for patent reform. Now, Patent Troll Tracker claims that IP Innovation LLC is a subsidiary of Acacia. More here. did a story on Acacia in February, "Extreme Makeover: From Patent Troll to the Belle of the Ball.""

Pamela Jones reckons the lawsuit against Red Hat and co could be SCO version 2 but these Acacia guys, unlike SCO, have a history of success in IP litigation and should not be underestimated. Actually, though my educational technology colleagues became concerned for the first time about the IP monster in the form of the Blackboard patent last summer, they should really be more worried about Acacia, which has a history of patent suits against educational institutions, broadcasters, and the ubiquitous porn industry, for streaming video and audio materials via the web. Acacia is effectively a patent holding company which has not baulked at threatening the big guys like Microsoft (though with several ex Microsoft executives now working for them there may be more cordial relations in future), Apple, Intel, Texas Instruments and many others. They are unlikely to lose a lot of sleep either about bothering a[nother] bunch of academics or educational administrators.

Some Thomas jurors wanted $150k per song

Apparently one of the jurors in the p2p copyright infringement case against Jammie Thomas wanted to award damages of $150,000 per song ($3.6 million in total). The RIAA lawyers must be very proud of the impact of their courtroom performance.

Proportionality doesn't mean anything to these people.

SWIFT open Swiss Centre to avoid the reach of the US

From Heise Online:

"The supervisory board of SWIFT has approved the plans for the restructuring of the systems architecture of the financial messaging network the outlines of which had been known for some time. The core of the realignment is the creation of a global data processing center in Switzerland. To this will be added a command-and-control center in Hong Kong...

By engaging in the restructuring effort that is scheduled to be completed by the end of 2009 the financial messaging network based in Belgium is trying to accomplish a score of targets aimed at satisfying the desires of customers. Thus by preventing immediate access by US authorities to international transfer data -- as is currently the case via the network's computing center in the United States -- data privacy concerns are to be dispelled...

The financial messaging service intends to create two message processing zones: Europe and Transatlantic. The new global computing center would as a partner of the extant European data processing center, among other things, take on the mirror function of the current US facility, the organization declared. Transfer information belonging to the European zone would be processed and, if need be, stored there. The Swiss location would also process and store data emanating from the US center, it was said. "Messages within a zone will in future remain in their region of origin," SWIFT CEO Lázaro Campos said by way of explaining the new principle, which takes account to a greater degree of concerns voiced by data privacy watchdogs and members of the European Parliament and which will define the future modus operandi for the European Economic Area at least...

SWIFT processes international bank transfers with a volume of about 4.8 trillion euros every day. About 8,100 banks from 208 countries and regions are connected to the network. On its busiest day to date 13,663,975 bank transfer messages shot through SWIFT's data lines. Last year it emerged that US security authorities have access to SWIFT servers and are in a position to analyze the information that is being collected. Following the safe harbor assurances given by SWIFT the European Commission has given its blessing to the current financial-data access regime in the United States. In the US two customers of US banks have filed lawsuit alleging that bank transfer data of theirs was illegally passed on to security authorities by the network; the government for its part is trying to block these lawsuits."

Scottish entitlement card a deception

NO2ID Edinburgh coordinator, John Anthony Welford, has written a 12 page report accusing the Scottish Executive of covertly introducing a national identity card, the so-called Scottish National Entitlement Card (SNEC), in Scotland last year.

"Last year national identity cards were reintroduced into the United Kingdom for the first time in fifty four years. The subject of identity cards is always a controversial one for the British, and so it is surprising that their reintroduction was given almost no publicity and met with minimal opposition. The reason for this is quite simple - nobody was told about it. What happened is that the elderly and disabled citizens of Scotland were invited to apply for a new kind of travel card. But unbeknown to them, what they were subsequently issued with was not a travel card, but a multipurpose identity card. Moreover, this card and its associated centralised database are so intrusive that they would not today be permitted by law in Germany. The present paper outlines the nature of this ‘Trojan Horse’ identity cards project and the wholesale systematic deception which it involved."