"Dear Secretary of State,
The Phorm “Webwise” System
Interception of Communications
In February 2008 your department began to circulate to interested parties a
note addressing the question of whether the operations of Internet Service
Providers in scrutinising their customers’ web browsing for the purposes of
targeted online advertising involved the interception of communications, and
whether it was lawful if it did. On 11th March Mr Simon Watkin of your
department helpfully published that note on the ukcrypto mailing list. In
response to questions about the note, he made the point that the note was not,
and did not purport to be, based upon a detailed technical examination of any
particular technology. The purpose of this letter is to explain why that note
should be withdrawn.
Phorm Inc have announced that they treat the statement as confirming the
lawfulness of their proposed operations in the UK, and the Information
Commissioner has stated that in examining the data protection aspects of Phorm’s
proposed operations he will not take account of matters covered by the Home
Office statement. And after it emerged that BT had conducted secret trials of the
service in 2006 and 2007, complaints to the Avon and Somerset police about
illegal interception were met with a refusal to investigate them, on the basis that it
was a matter for the Home Office.
A detailed technical analysis of the Phorm system by Dr Richard Clayton is
now available which sheds much new light on its proposed operations. A
detailed legal analysis by Nicholas Bohm has also now been published. These
documents are at:
Technical analysis: http://www.cl.cam.ac.uk/~rnc1/080404phorm.pdf
Legal analysis: http://www.fipr.org/080423phormlegal.pdf
The documents show that the operation of Phorm’s systems involve:
• interception of communications, an offence contrary to section 1 of the
Regulation of Investigatory Powers Act 2000
• fraud, an offence contrary to section 1 of the Fraud Act 2006, and
• unlawful processing of sensitive personal data, contrary to the Data
Protection Act 1998
The documents also highlight a number of technical errors as well as some very
significant oversights in the Home Office note that was circulated in February.
We therefore urge you to make it clear to Phorm, to such ISPs as may have
consulted the Home Office, to the Information Commissioner, and to chief
officers of police:
• that the Home Office does not condone illegal interception for the
purposes of targeted online advertising,
• that the law is for the courts and not for the Home Office to decide, and
that it is for the police and prosecuting authorities to investigate reports of
crime and make decisions about prosecutions without deferring to the
views of the Home Office, and
• that where complaints under the Data Protection Act are concerned, it is
for the Information Commissioner and not the Home Office to investigate
whether the data processing involved in targeted online advertising
amounts to illegal interception.
Your department’s note can now be seen to be significantly incomplete
and dangerously misleading. We call on you to withdraw it.
We have provided copies of this letter to Mr Simon Watkin in your
department and to the Information Commissioner.
Friday, April 25, 2008
It came to mind when I got a note from a colleague this morning saying a paper I had written had been rejected by the editors of the particular journal that was considering it - one of a number of boxes I failed to tick was that both reviewers didn't approve of the conversational writing style and referencing - and I began thinking again about the degree of narrow rigidity associated with whole rafts of our educational systems from primary school right through to the job(/s) I've been doing for the Open University for many years. Anyway enjoy Robinson's talk - highly recommended when you have a spare 20 minutes.
Update: The Wikipedia page on Gillian Lynne who Robinson mentions in his talk is worth a browse.
Thursday, April 24, 2008
" Three prominent academic publishers are suing Georgia State University, contending that the school is violating copyright laws by providing course reading material to students in digital format without seeking permission from the publishers or paying licensing fees.
In a complaint filed Tuesday in United States District Court in Atlanta, the publishers — Cambridge University Press, Oxford University Press and Sage Publications — sued four university officials, asserting “systematic, widespread and unauthorized copying and distribution of a vast amount of copyrighted works” by Georgia State, which the university distributes through its Web site."
But it looks as though Georgia State University takes a liberal rather than a risk averting view of fair use. The publishers are seeking an injunction but not damages and it will be really interesting to watch.
Jim Gibson's Risk Aversion and Rights Accretion in Intellectual Property Law is recommended background reading. Abstract:
"Intellectual property’s road to hell is paved with good intentions. Because liability is difficult to predict and the consequences of infringement are dire, risk-averse intellectual property users often seek a license when none is needed. Yet because the existence (vel non) of licensing markets plays a key role in determining the breadth of rights, these seemingly sensible licensing decisions eventually feed back into doctrine, as the licensing itself becomes proof that the entitlement covers the use. Over time, then, public privilege recedes and rights expand, moving intellectual property’s ubiquitous gray areas into what used to be virgin territory—where risk aversion again creates licensing markets, which causes further accretion of entitlements, which in turn pushes the gray areas even farther afield, and so on. This “doctrinal feedback” is not a result of changes in the positive law but is instead rooted in longstanding, widely accepted doctrine and prudent behavior on the part of everyone involved. And because feedback is so ingrained in established law and practice, its various cures tend to create more problems than they solve. In the end, however, subtle changes in doctrine’s use of licensing information provide a normatively neutral solution."Also Why the Customer Isn’t Always Right: Producer-Based Limits on Rights Accretion in Trademark by Rebecca Tushnet and The ‘Why’ of Markets: Fair Use and Circularity by Wendy Gordon, also in the Yale Law Journal.
His story should be compulsory reading for copyright reformists, industry executives, digital rights activists and indeed anyone with an interest in creative culture. There are no simple answers to the upheaval the copyright landscape has been experiencing.
Wednesday, April 23, 2008
"A month after a San Jose jury exonerated Los Altos-based Rambus from claims that it had engaged in anti-competitive practices, a federal appeals court today came to the same conclusion.And via RTE:
The U.S. Court of Appeals for the Washington D.C. Circuit overturned a Federal Trade Commission determination that Rambus - whose memory-chip technology is inside most personal computers - tried to monopolize the memory-chip market.
The FTC had found in 2006 that Rambus acted deceptively to obtain patents for its dynamic random access memory chips. But in its ruling today, the appeals court said "the commission failed to demonstrate that Rambus inflicted any harm on competition," and the court chided the agency for having "taken an aggressive interpretation of rather weak evidence.""
"Eircom has rejected claims by four major record companies that it, as the largest broadband internet service provider in the State, must bear some liability for the illegal free downloading of music by computer users.Thanks to Michael Geist for the pointers.
The companies have claimed Eircom's networks are being used 'on a grand scale' for illegal downloading.
Mr Justice Peter Kelly said today he expected to fix a July date for the hearing of the unique action brought by the record companies against Eircom. The action is the first here aimed at internet service providers, rather than individual illegal downloaders, and reflects growing concern within the music industry about the scale and cost of illegal downloading...
Mr Justice Kelly was told by Mr Paul Coughlan, for Eircom, there would be considerable technical evidence in the case relating to the claims that his side was failing to remove copyright infringing material from its systems. Eircom claims the companies have failed to identify such 'infringing material' and, if they have identified such material, then Eircom claims such material cannot be removed without damaging Eircom's systems/equipment or internet services...
Mr Willie Kavanagh, managing director of EMI Ireland and chairman of the Irish Recorded Music Association (IRMA), has said that, because of illegal downloading and other factors, the Irish music industry is experiencing 'a dramatic and accelerating decline' in income."
Tuesday, April 22, 2008
"In recent weeks, however, it would appear that governments are beginning to have sober second thoughts. After a Swedish judge recommended adopting the three strikes policy, that country's ministers of justice and culture wrote a public opinion piece setting out their forthcoming policy that explicitly excluded the three strikes model.
Earlier this month, the European Parliament delivered an even stronger rejection. At issue was the Bono Report on the Cultural Industries, a major cultural policy initiative headed by French member of parliament Guy Bono. While the Bono Report was expected to pave the way for a pan-European three strikes policy, the report may have had the opposite effect."
Monday, April 21, 2008
- Between 30 July 2004 and 14 December 2006 a team of Serious Fraud Office lawyers, accountants, financial investigators and police officers carried out an investigation into allegations of bribery by BAE Systems plc (BAE) in relation to the Al-Yamamah military aircraft contracts with the Kingdom of Saudi Arabia. On 14 December 2006 the Director of the Serious Fraud Office announced that he was ending the SFO's investigation.
- In October 2005 BAE sought to persuade the Attorney General and the SFO to stop the investigation on the grounds that its continued investigation would be contrary to the public interest: it would adversely affect relations between the United Kingdom and Saudi Arabia and prevent the United Kingdom securing what it described as the largest export contract in the last decade. Despite representations from Ministers, the Attorney General and the Director stood firm. The investigation continued throughout the first half of 2006.
- In July 2006 the SFO was about to obtain access to Swiss bank accounts. The reaction of those described discreetly as "Saudi representatives" was to make a specific threat to the Prime Minister's Chief of Staff, Jonathan Powell: if the investigation was not stopped, there would be no contract for the export of Typhoon aircraft and the previous close intelligence and diplomatic relationship would cease.
- Ministers advised the Attorney General and the Director that if the investigation continued those threats would be carried out; the consequences would be grave, both for the arms trade and for the safety of British citizens and service personnel. In the light of what he regarded as the grave risk to life, if the threat was carried out, the Director decided to stop the investigation.
- The defendant in name, although in reality the Government, contends that the Director was entitled to surrender to the threat. The law is powerless to resist the specific and, as it turns out, successful attempt by a foreign government to pervert the course of justice in the United Kingdom, by causing the investigation to be halted. The court must, so it is argued, accept that whilst the threats and their consequences are "a matter of regret", they are a "part of life".
- So bleak a picture of the impotence of the law invites at least dismay, if not outrage. The danger of so heated a reaction is that it generates steam; this obscures the search for legal principle. The challenge, triggered by this application, is to identify a legal principle which may be deployed in defence of so blatant a threat. However abject the surrender to that threat, if there is no identifiable legal principle by which the threat may be resisted, then the court must itself acquiesce in the capitulation...
- But to describe the claimants' application as a challenge either to the relevance of national security to the decision of the Director, or to the Government's assessment of the risk to national security misses the essential point of this application. The essential point, as we see it, derives from the threat uttered, it is said, by Prince Bandar to the Prime Minister's Chief of Staff. The nature and implications of that explicit threat have a significant impact on this application. The challenge was originally resisted, in part, on the basis that the Director was entitled to discontinue the investigation as a result of the very grave threats to national and international security (see e.g. Detailed Grounds of Resistance § 10). But there is an ambiguity in the use of the word threat in that context. Threat as used in response to the claimants' original challenge meant no more than risk. The Director's decision was taken after assessment of the risk to security. But the grounds of resistance did not mention the fact that representatives of a foreign state had issued a specific threat as to the consequences which would flow from a refusal to halt the investigation. It is one thing to assess the risk of damage which might flow from continuing an investigation, quite another to submit to a threat designed to compel the investigator to call a halt. When the threat involves the criminal jurisdiction of this country, then the issue is no longer a matter only for Government, the courts are bound to consider what steps they must take to preserve the integrity of the criminal justice system.
- The constitutional principle of the separation of powers requires the courts to resist encroachment on the territory for which they are responsible. In the instant application, the Government's response has failed to recognise that the threat uttered was not simply directed at this country's commercial, diplomatic and security interests; it was aimed at its legal system. In written argument, the Director suggested that we should attach significance to the fact that the threat was not directed against him. But it was. While he, personally, was not being threatened with any adverse consequences, the threat was effectively being made to him, in his capacity as Director, and in relation to his statutory functions. The Government acted merely as a conduit, passing the threat on to him with an assessment of the danger should it be carried out. That threat was made with the specific intention of interfering with the course of the investigation. The Saudis knew what was proposed: the SFO intended to inspect Swiss bank accounts. Those who uttered and adopted the threat intended to prevent the course which the SFO wished to pursue. It is unlikely that so blatant a threat would have been made had those responsible not believed that it might well succeed.
- Had such a threat been made by one who was subject to the criminal law of this country, he would risk being charged with an attempt to pervert the course of justice. The course of justice includes the process of criminal investigation (R v Cotter  2 Cr App R. 29 at § 30 and 31). But whether or not a criminal offence might have been committed, the essential feature is that it was the administration of public justice which was traduced, it was the exercise of the Director's statutory powers which was halted.
- Threats to the administration of public justice within the United Kingdom are the concern primarily of the courts, not the executive. It is the responsibility of the court to provide protection...
- The legal relationships of the different branches of government, and the separation of powers depend on internal constitutional arrangements. They are of no concern to foreign states (see Lord Millett in R v Lyons  1 AC 976 at § 105).
- Those decisions were not concerned with threats to the administration of justice within the United Kingdom. Such threats, as we have sought to demonstrate, are particularly within the scope of the courts' responsibility. It is difficult to identify any integrity in the role of the courts to uphold the rule of law, if the courts are to abdicate in response to a threat from a foreign power.
- Mr Sales' submission appears to us not to be one of principle but rather one of practicality: resistance is useless, the judgement of the Government is that the Saudi Arabian government will not listen and the authorities in the United Kingdom must surrender. That argument reveals the extent to which the Government has failed to appreciate the role of the courts in upholding and protecting the rule of law.
- The courts protect the rule of law by upholding the principle that when making decisions in the exercise of his statutory power an independent prosecutor is not entitled to surrender to the threat of a third party, even when that third party is a foreign state. The courts are entitled to exercise their own judgment as to how best they may protect the rule of law, even in cases where it is threatened from abroad. In the exercise of that judgment we are of the view that a resolute refusal to buckle to such a threat is the only way the law can resist...
- Certainly, for the future, those who wish to deliver a threat designed to interfere with our internal, domestic system of law, need to be told that they cannot achieve their objective. Any attempt to force a decision on those responsible for the administration of justice will fail, just as any similar attempt by the executive within the United Kingdom would fail...
- ... There is no evidence whatever that any consideration was given as to how to persuade the Saudis to withdraw the threat, let alone any attempt made to resist the threat. The Director did not himself consider this issue. His assessment of the threat and its consequences relied on the advice of others. There is nothing to suggest that those advising him on this issue had made any attempt to resist the threat. They merely transmitted the threat to the Director, and explained the consequences if it was carried out. When this question was raised, in argument, Mr Sales responded that that issue was not one which the defendant had come to court to meet. Moreover, he suggested the court should assume that due consideration had been given as to whether the Saudis might be persuaded to withdraw their threat and as to how its consequences might be avoided...
- Secondly, as this case demonstrates, too ready a submission may give rise to the suspicion that the threat was not the real ground for the decision at all; rather it was a useful pretext. It is obvious, in the present case, that the decision to halt the investigation suited the objectives of the executive. Stopping the investigation avoided uncomfortable consequences, both commercial and diplomatic. Whilst we have accepted the evidence as to the grounds of this decision, in future cases, absent a principle of necessity, it would be all too tempting to use a threat as a ground for a convenient conclusion. We fear for the reputation of the administration of justice if it can be perverted by a threat. Let it be accepted, as the defendant's grounds assert, that this was an exceptional case; how does it look if on the one occasion in recent memory, a threat is made to the administration of justice, the law buckles? The Government Legal Service has every reason to be proud of its reputation for giving independent and, on occasion, unpalatable advice; but can that be maintained if in exceptional cases, when a threat comes from a powerful and strategically important ally, it must yield to pressure? Our courts and lawyers have the luxury and privilege of common law and statutory protection against power which threatens the rule of law. All the more important, then, that they provide support and encouragement to those in a less happy position. How do they do so, if they endorse surrender, when in Uganda the courts are forced to resist when those whom they have released on bail are re-arrested on the court-room steps by armed agents of the executive, or when the Chief Justices of Fiji and Pakistan are deposed by military rulers?
- The Director failed to appreciate that protection of the rule of law demanded that he should not yield to the threat. Nor was adequate consideration given to the damage to national security and to the rule of law by submission to the threat. No-one took any steps to explain that the attempt to halt the investigation by making threats could not, by law, succeed. The Saudi threat would have been an exercise in futility, had anyone acknowledged that principle. We are driven to the conclusion that the Director's submission to the threat was unlawful."
The description of the facts of the case by Lord Justice Moses is the best I've seen anywhere. Meanwhile the government has not been idle. As part of the Constitutional Renewal Bill they have included some provisions related to this case, which some legal commentators suggest would make it impossible for this kind of judicial review to be pursued in the future. So success in the High Court may turn out to be a pyrrhic victory for the CAAT and the Corner House.
If you'd like a nice summary, look no further than Ruthie's Law.
Sunday, April 20, 2008
"Officials charged with managing patent portfolios in U.S. universities have found a new cause. In addition to opposing patent reform in the US Congress, they are opposing proposals being discussed in the World Health Organization that are aimed at increasing R&D for neglected diseases and other global health needs, and expanding access to new medicines in developing countries.
On April 16, the Association of University Technology Mangers (AUTM) asked its members to "Sign the Institute for Policy Innovation's Open Letter to the World Health Organization. . . in advance of the WHO's Intergovernmental Working Group (IGWG) on Public Health, Innovation and Intellectual Property...
The letter is part of a PR campaign by the pharmaceutical industry to stop the introduction of new models for supporting R&D for new medicines, or more transparency of the system...
One can understand why big pharma does not want a debate on new models for financing innovation -- if prizes work for Chagas disease or TB diagnostics, maybe the idea will spread to more lucrative markets. For lots of the wrong reasons, big pharma wants to avoid a system that links their rewards to actual impacts on health outcomes, and which enables generic competition of products.
But why would University Technology Managers side with big pharma in the WHO debates? Do they really think the current system is working well in developing countries?"
The hassling of people taking photographs in public places has crossed the pond.
"Misplaced fears about terror, privacy and child protection are preventing amateur photographers from enjoying their hobby, say campaigners.
Phil Smith thought ex-EastEnder Letitia Dean turning on the Christmas lights in Ipswich would make a good snap for his collection.
The 49-year-old started by firing off a few shots of the warm-up act on stage. But before the main attraction showed up, Mr Smith was challenged by a police officer who asked if he had a licence for the camera.After explaining he didn't need one, he was taken down a side-street for a formal "stop and search", then asked to delete the photos and ordered not take any more. So he slunk home with his camera...
Austin Mitchell MP has tabled a motion in the Commons that has drawn on cross-party support from 150 other MPs, calling on the Home Office and the police to educate officers about photographers' rights."
As always these cases tend to be more complicated than initial reports suggest but it is certainly one to watch closely.
"Dressed in a black dress and pinstriped suit, Ms. Rowling harshly criticized Mr. Vander Ark and his Lexicon manuscript, calling it a compilation of phrases and facts that were taken from her book and rewritten “without quotation marks around it,” and saying the manuscript was “sloppy” and “lazy.” Besides stepping on her plans to publish her own encyclopedia, she said, the Lexicon manuscript was also “derivative” and “riddled with errors.”
“What does it add?” she asked while on the stand. “The idea of my readership parting with their or their parents’ hard earned cash for this — I think it’s a travesty.
“My prime concern, if not my only concern,” she added later, “is these characters who have meant so much to me and continue to mean so much to me over a very long period of time. It’s very difficult for someone who is not a writer to understand.”
when RDR Books announced last fall that it had paid Mr. Vander Ark a small advance to create a print version of his site, Ms. Rowling and Warner Brothers objected. Ms. Rowling and her lawyers argued that RDR Books was crossing a line by seeking to profit from “The Harry Potter Lexicon,” which they say is little more than a repackaging of Ms. Rowling’s original material. And rather than writing an eighth installment of the Harry Potter series, Ms. Rowling has said, she planned on publishing a Harry Potter encyclopedia of her own and donating the proceeds to charity — an effort that would be severely impeded if Mr. Vander Ark published his Lexicon.
The publisher also argues that Lexicon follows a long tradition of literary commentary. “For hundreds of years, everybody has agreed that folks are free to write companion guides,” Anthony Falzone, executive director of the Fair Use Project at Stanford Law School and one of RDR’s lawyers, said in an interview. “This is the first time that anybody has argued seriously that folks don’t have the right to do that.”"
Update: Christopher Caldwell, writing in the FT, has little sympathy for J.K. Rowling and more than a little for the H.P. Lexicon creator, Steven Vander Ark.
"Lawyers at Stanford University Law School's Fair Use Project, who are defending Mr Vander Ark pro bono, sought to show in three days of testimony this week that the Lexicon constitutes "fair use" of Ms Rowling's work. It is a reference guide, of the sort that is familiar (and indispensable) to anyone who has taken a deeper interest in Balzac, Proust, Faulkner or Star Trek . Ms Rowling "appears to claim a monopoly on the right to publish literary reference guides and other non-academic research relating to her own fiction", according to Mr Vander Ark's lawyer...
Whether the lexicon violates "fair use" depends, according to US legal experts, on whether it is "transformative" or whether it just cribs from Ms Rowling's plot and prose. Much of the testimony missed this issue. Ms Rowling dwelt on her own plans to publish a Potter encyclopaedia, which is neither here nor there. Literary critics cannot be kept from writing about, let us say, the novels of Philip Roth on the grounds that Mr Roth swears he wants to publish a book called What My Novels Mean ...
Whatever the court decides on legal grounds, one need only spend five minutes at Mr Vander Ark's website ( hp-lexicon.org ) to see that, on literary grounds, the idea that he is merely cribbing is nonsense. The website is highly transformative. It is a leviathan effort of research, criticism and interpretation. It is a concordance, index and bibliographical essay all in one. If the eventual book bears the slightest resemblance to it, it will be indispensable to scholars and lay Potter addicts. It gives timelines of the novels and points up inconsistencies in them. Its section on plants describes the uses and behaviour of fluxweed, honking daffodils and whomping willows, and reconstructs seven years of the "herbology" curriculum at Hogwarts. It indexes everything Ms Rowling has ever said in published interviews about her main characters... Such a site is not just a godsend to Potter addicts. It is thanks to readers such as Mr Vander Ark that Harry Potter is taken as something more than just a particularly good children's book."
It seems that Professor Phillip Parker at Insead had computers do much of the heavy lifting. He
"has developed computer algorithms that collect publicly available information on a subject — broad or obscure — and, aided by his 60 to 70 computers and six or seven programmers, he turns the results into books in a range of genres, many of them in the range of 150 pages and printed only when a customer buys one."
"In 2002, the BBC published The Dalek Survival Guide, which referred to text used in the earlier works. JHP, as the exclusive licensee of the right to publish the earlier works, sued the BBC for copyright infringement, seeking damages. The BBC maintained that it had acquired a licence by estoppel from Nation's estate to use the material featured in the earlier books in its new books.
Norris J dismissed JHP's action. In his view, on the true construction of the agreements, JHP was the exclusive licensee of the right to publish material found in the earlier books. The BBC however acted in the belief that it had the permission of the estate to use material derived from the earlier works in which the estate held the copyright, acting on that belief in paying writers to prepare text in publishing and marketing the new book in which the text in issue had been referenced. The BBC therefore had a complete defence to the claim, even if it had infringed the rights of the exclusive licensee."