Friday, May 09, 2008

IceTV analysis

The blogosphere is great when it works... Kim Weatherall has saved me the heavy lifting involved in needing to quickly dissect the IceTV v Channel Nine legal judgment I mentioned yesterday, in the dispute about the copying of TV programme guides in Australia.
"There’s a couple of reasons why Nine (and other channels) are keen to control this information: first, because they license it to lots of people (presumably for money), and second, because control means they can impose licensing conditions on use of the information. And that is important because personal/digital video recorders (PVRs/DVRs) need programming information to work. If you can control use of the information, you can start to control what functions will be allowed on these devices (subject to market power type stuff). And that means you can impose some limits on functions like ad-skipping. Which of course is something that Free to Air channels are very concerned about...

So, what do we think?

In summary? A judgment that is consistent with the trend of Australian authority, and entirely consistent with the reasoning of the (identical) Full Federal Court in Desktop Marketing. But a judgment which also illustrates how far away, in some respects, Australian copyright law is from copyright law in other countries, including the US (with its concepts of thick and thin copyright), and the UK now that the UK has the Database directive. And a judgment that emphasises that Australian copyright law truly does protect information, and not just expression (the judgment is notable for not even talking about that issue). Those would be my preliminary thoughts...

I’m inclined to think that the most interesting aspect of the judgment is how it builds on the Desktop case. For those who are not copyright geeks, Desktop is the 2002 decision of the Full Federal Court which held that a person who copy-typed the White Pages into a database and distributed that was infringing copyright. Importantly, it held that sweat-of-the-brow compilations are protected copyright works in Australia. But in infringement terms, it really was a pretty simple case: it involved wholesale copying.

Where IceTV different is [on the facts and arguments accepted and focused on by the courts - ie on the assumption that the initial template of the programming guide was produced in a non-infringing way] is that in this case, the company copied bits of the compilation - basically, the time and title information of updates to the basic program guide. They did this repeatedly and consistently, but these were, in the end, a series of bits of information necessary to keep the information current and correct. What the judgment of the Full Federal Court essentially says is that if that information is important enough, then taking it can infringe. This approach, I think, potentially gives quite ‘thick’ protection to factual and other elements of compilations...

So the issue is: are you copying the program guide when you write down what was broadcast? Or has the causal link between the original and your version been ‘broken’ by the fact that you are writing down what was shown, not copying from the compilation? Now, that’s a hard question. I don’t think it’s obvious at all. To address it would require delving into some quite tricky issues.

So it’s very notable that the Full Court says, in effect, nothing about that argument...

What are the implications?
For the broadcasting area, obviously, the implication is that pretty much no matter what you do (and IceTV really did do quite a lot to try to avoid copyright infringement here, on the facts found by the trial judge) - you simply cannot produce a television program guide without the cooperation of the broadcasters. Maybe from a policy perspective it’s a good thing that broadcasters get to license (and get to get paid) for this stuff - in the sense that licensing it clearly is a part of their business model.

On the other hand, it has some pretty strong implications for related markets. As I mentioned at the start, the obvious one is the market for DVRs/PVRs. If we do end up with less fully-featured devices in the Australian market (which seems to be the situation now, at least) - well, you know what to blame. Copyright law, of course (and the broadcasting regulation system which has given, and continues to give, such power to the free to air channels)."

Update: See also What Are You Missing Out On? Big Media, Broadcasting, Copyright and Access to Innovation by Kathy Bowrey (2007) for an interesting academic perspective on copyright's influence on the development of digital broadcasting services in Australia.

Thursday, May 08, 2008

Internet Archive challenge FBI national security letter

Michael Geist points me to another important story in the US: the Internet Archive challenged the FBI's serving of a national security letter late last year and the FBI has now withdrawn the request for a patron's details.
"The FBI presented the San Francisco-based Internet Archive with a national security letter in November asking for a library patron's records. The group sued the agency a month later, alleging the letter violated free speech rights because they prohibit recipients from talking to anyone else about them.

The Internet Archive said today the FBI agreed to withdraw the letter last week and make the case, which was filed under seal, public. Sections of the now public lawsuit and supporting documents detailing what and who the FBI were looking into were blacked out.

National security letters are investigative tools used to compel businesses to turn over customer information without a judge's order or grand jury subpoena. They are most typically served on Internet service providers and telephone companies demanding billing records, subscriber information and other electronic communication transactional records.

The companies receiving the letters are barred from telling customers who are the targets of the FBI demands."

Movie studios win $111 million judgment v TorrentSpy

From SiliconValley.com:
"The six major Hollywood studios have won a $111 million judgment for copyright infringement against file-sharing Web site TorrentSpy.com, which has been shut down.

The judgment, filed Monday in U.S. District Court in Los Angeles, fined the operators of the Web site, Valence Media LLC, $30,000 per violation for nearly 3,700 illegal movie and TV show downloads."

Dr Who fan gets C&D on knitting patterns

According to Andres Guadamuz, a Dr Who fan has been hearing from m'learned friends acting on behalf of the BBC. The victim has been creating and posting knitting patterns of Dr Who characters on the web; and it seems that the good folks at the BBC don't approve.

Andres's post is worth reading in full as it constitutes an interesting and accesible analysis of the legalities. He concludes:

"I strongly believe that BBC Worldwide's claims are over-reaching. While there could be infringement, I submit the hypothesis that Mazz has done enough transformation to the Adipose character to claim copyright over their design...

Concluding, the BBC may not have a straightforward case if they decide to sue, and they could very well lose. I also believe that they are misplacing their energies pursuing a fan who has done nothing more than to display their love to the show by making a highly original design. While commercial use is not relevant to the infringement case, it should be noted that Mazz was not selling the design, and had actually licensed it under a Creative Commons licence."

Genealogy of a biometrics company in pole position for ID card scheme

The company in pole position to get major contracts on the UK government's ID card fiasco has a chequered history according to David Moss over at Ideal Government. I hope he doesn't mind me quoting him in full:

"Once upon a time, there was a company called Visionics Corp. Visionics specialised in biometrics based on facial geometry. Their product, FaceIt, could compare the image of someone’s face, caught on camera, with a database of stored images, at the rate of four million per minute, and identify that person whether or not he or she had grown a beard, started to wear glasses, gone bald, been photographed at an angle in poor light, etc ... At least, that’s what it said on the Visionics website.

The Visionics website is no longer available.

According to The Times, whereas Visionics claimed 99.3% accuracy, when it was tested independently FaceIt actually managed to identify people only 51% of the time. That was in November 2003. A year earlier, the New Scientist reported the experience of Palm Beach International Airport in Florida when they tried to use FaceIt to clear recognised staff through security. It worked 47% of the time. The airport would have done better to toss a coin.

The same New Scientist article records also that, back in 1998, FaceIt was used in the London Borough of Newham to match images of people, caught by CCTV cameras in the street, to a database of known villains. FaceIt drove crime off the streets of Newham, it said on the now defunct Visionics website. That’s not how the New Scientist tells it: “the police admitted to The Guardian newspaper that the Newham system had never even matched the face of a person on the street to a photo in its database of known offenders, let alone led to an arrest”.

What with one thing and another, Visionics Corp. disappeared into Identix, Inc., a biometrics company specialising in fingerprinting. And when Atos Origin organised the consortium to conduct the UKPS biometrics enrolment trial in 2004, guess who they chose to supply the facial geometry and fingerprinting systems.

This time, FaceIt failed 31% of the time, with able-bodied participants in the trial, and 52% of the time with disabled participants, i.e. it was wrong more often than it was right. And the Identix fingerprinting system failed 19% of the time with the able-bodied and 20% with the disabled.

The UKPS (now IPS) trial tested not only facial geometry and fingerprinting biometrics, but also iris scanning. 10% of able-bodied participants could not even register their iris scan in the first place, using the system supplied by Iridian, let alone be subsequently matched/identified. For the disabled, that figure rose to 39%. In a national identity scheme based on iris scans, these people wouldn’t even exist, they would have no electronic identity.

In December 2005, DVLA appointed Viisage, another facial geometry biometrics specialist, to conduct a trial to see if their collection of photographs could be used to automate driver identification. The answer seems to be no and nothing came of it.

Except that Viisage then merged with Identix, Inc., to form ... L-1 Identity Solutions, Inc.. And L-1 Identity Solutions, Inc. subsequently completed the family when it bought ... Iridian.

With its vital statistics of 51-47-31-52-19-20-10-39, L-1 Identity Solutions, Inc. is described by the FT as being in “pole position” to win the biometrics contract for the National Identity Scheme, a scheme on which the nation’s security could one day depend.

And they all lived biometrically ever after.

Question: why did the Prime Minister say, as he did on 17 January 2008, that biometrics “will make it possible to securely link an individual to a unique identity”?"

Wonderful.

Banning laptops from the classroom

The University of Chicago Law school has banned laptops from classrooms essentially because of 'the teacher knows best' meme.
"A certain amount of paternalism comes out in the school's justifications for the policy: Dean Levmore explained, "the question is, 'How do you best learn? That's for the faculty to decide.'"...

Professors at U of C (and elsewhere) think what they have to say is important. Professors think (and should think, or they would have trouble doing their jobs) that listening to what professors have to say really is the best use of law student time. And things have gotten to the point that you don't have to be a "hip young pRAWf" to sense that the student clicking furiously during another student's question isn't taking notes on that question.

As more and more law schools consider and embrace wireless deactivation (or the even more draconian laptop ban), I'd urge them to be honest. Telling students you know what's best for them -- whether we're talking about attendance policies or wireless -- only gets you so far. Be honest, and admit that you're banning wireless access because the plugged-in student is usually a disengaged one and has sucked the fun out of the classroom experience. Students are more likely to accept a top-down policy change if it's justified based on faculty morale than student learning."

Yes many of the students may well be checking their email, social networking pages, twittering or blogging etc. So if that's what they're doing anyway, why not engage them in actively using those tools to tune into your subject matter. Banning laptops in class is a bit like the education sector's equivalent of the entertainment industry wishing the Web had never happened.

Yet it is not just the teachers that don't like laptops in the room. Colleagues have recently grumbled at me using my laptop in meetings, saying it is disrespectful and the clicking of my keyboard is distracting (that's just two of the polite complaints) and participants in the OU's Making Connections conference recently were on the receiving end of similar grumbles.

With a real portable laptop (i.e. one that doesn't weigh half a tonne) I don't have to print out and carry reams of paper around, I can call any document up at a few seconds notice (well maybe not a few seconds as I'm still on XP), I can search, make notes, double check sources and frankly for the large portions of certain meetings when I just do not need to be there I can be getting on with real work, remotely supporting my staff on the broad ecology of issues they have to address on a daily basis - issues that wouldn't otherwise get dealt with until I got back to the office later in the day/week. And although I understand that multi-tasking is primarily the domain of the female of the species and I'm still a mere amateur in that regard, I guess that's why evolution gave us computers - to help us catch up. :-)

Update: I see Martin had some similar thoughts on the complaints at Making Connections.
"I think some people feel it shows disrespect to the speaker that you aren't giving them your full attention. In fact, thinking through the act of people having laptops or other devices operating during a talk I give, I'm of the completely opposite view. If what I'm saying isn't interesting enough for you to want to liveblog, twitter, look up sources or take notes on it, then I'm doing something wrong. And, if by some freak chance what I'm saying isn't interesting, then I'd rather people were doing their email or reading blogs than sitting in my session feeling resentful because they are trapped. Hey, I've had people sleeping during a talk before - I'd rather they were tapping away on their keyboards."

IceTV

There's been an interesting copyright case going on in Australia, Nine Network Australia Pty Ltd v Ice TV Pty Ltd., dealing with copyright protection in compilations of facts. Under Australian law, copyright can effectively subsist in a compilation of factual information if enought effort is put into collecting, verifying, recording and assembling the data. So there's a kind of "sweat of the brow" test. This is a much broader protection that even the EU database directive provides; and such compilations are not protected under US law, according to the defintive US Supreme Court case Feist Publications Inc. v Rural Telephone Service Co., 499 U.S. 340 (1991), dealing with extent of copyright protection available to telephone directory white pages.
"The basic facts are these: Ice TV compiles a TY program guide that subscribers can use to record TV shows. (Once a program has been recorded, subscribers are able to fast forward ads in 30 second blocks.) The Nine Network believes that Ice TV has breached its copyright by creating a TV program guide that looks like its own. Accordingly, Nine has sued Ice TV for copyright infringement and is seeking a permanent injunction and unspecified damages."
To the surprise of most legal commentators IceTV actually won at first instance but it seems that the federal court has overturned that decision on appeal; and the case is to be sent back to the original judge to reconsider her opinion. A quick scan of the opinion indicates the court felt that the judge at first instance had misinterpreted some technicalities in the application of the facts to the law; but splitting hairs on the interpretations of providing intellectual property protection to compilations of facts just ignores the elephant in the room - why is copyright protection being allocated to compiliations of facts in the first place?

Race and media double standards on the presidential race

Frank Rich on the media establishment and US presidential candidates' associations with embarrassing preachers is well worth a read.

Wednesday, May 07, 2008

J.K. Rowling wins privacy case appeal

AP via Findlaw: J.K. Rowling wins privacy case appeal
"A court ruling in favor of Harry Potter author J.K. Rowling has set the stage for a trial on whether publication of photos taken of her young son violates his privacy.

The Court of Appeal in London says children of famous parents have the same right to expect privacy as children of parents who aren't well-known.

The ruling Wednesday sets aside an earlier finding in favor of Express Newspapers and Big Pictures, an agency that took the photos with a long telephoto lens."

Monday, May 05, 2008

5 Canadian Copyright Myths

Michael Geist, who has been consistently critical of the Canadian government's proposed copyright reforms believes that the latest bill is based on five myths.
"1. The Importance of Copyright. In recent months, there have been increasing attempts to link copyright reform with the government’s broader innovation agenda. While copyright and intellectual property policies are unquestionably important in this regard, an innovation strategy depends upon far more than just copyright reform. A vibrant venture capital community, competitive tax structure, highly skilled workforce, and world-class communication infrastructure all play a critical role in investment decisions and the commercialization of new innovation. In fact, the World Economic Forum recently pointed to excessive red tape in establishing a new business and the high costs of Internet and wireless access as the weakest part of Canada’s "network readiness."

2. Consultation and Reform. Given the slow pace of copyright reform, it is natural for some to mistakenly believe that Canada has widely consulted on reform with little to show for it. In fact, the opposite is true. The last national consultation on digital copyright reform took place in 2001, a time that pre-dates the introduction of the now-ubiquitous Apple iPod and the emergence of popular sites such as Facebook, MySpace, and Flickr. Although critics decry Canada's "outdated" copyright laws, the reality is that there has been a steady stream of reforms over the past two decades. The Copyright Act faced major overhauls in the late 1980s and 1990s, with smaller amendments in 1992. Moreover, Canada passed new copyright laws related to Internet retransmission in 2002 and anti-camcording legislation last year.

3. Canada in the World. A consistent theme in recent years has been the characterization of Canadian copyright law as "outdated, weak, or ineffective" in comparison to the rest of the world. Much of this criticism comes from the U.S., which has consistently placed Canada on its Special 301 list of countries with intellectual property laws that merit "watching." Yet these inflammatory claims do not withstand even mild scrutiny. The U.S. Special 301 list includes nearly 50 countries representing 4.4 billion people (about 70 percent of the planet) and 13 of the top 20 countries worldwide as measured by GDP. Viewed in that light, Canada is in good company.

Moreover, the World Economic Forum ranked Canada's intellectual property protection fourth in G8, ahead of both the U.S. and Japan. That ranking may reflect the fact that there are many areas where Canadian law is actually far stronger than the U.S., including our more limited fair dealing provision, the existence of crown copyright, the significantly higher copyright fees for broadcasters and educators, as well as Canada's the heavy reliance on copyright collectives.

4. Copyright in the World. Among the most troubling claims associated with copyright are the assertions that Canada must follow the U.S. model in order to comply with the World Intellectual Property Organization's Internet treaties. Nothing could be further from the truth. In recent months, New Zealand passed copyright legislation that includes far more flexibility that the U.S. model, while Israel - well known for an innovative technology sector - rejected the need for WIPO reforms altogether. Canada has the ability to craft a "made in Canada" solution that meets our needs but rejects reforms that have had negative effects on research, security, and consumer rights in other countries.

5. Copyright Consensus. Advocates of immediate reform argue that copyright is too contentious to achieve a broad consensus and that leadership is therefore needed to push ahead with legislation despite the opposition. However, a closer look at the publicly held positions of many key stakeholders reveals that there is an emerging copyright consensus in Canada. Artists groups (Canadian Music Creators Coalition, Appropriation Art), business groups (Balanced Copyright Business Coalition), education groups (Canadian Association of University Teachers, Canadian Federation of Students), and consumer groups have largely coalesced around principles that include a rejection of the U.S. Digital Millennium Copyright Act, preservation of user rights, greater flexibility within fair dealing, and the targeting of clear cases of commercial counterfeiting. Such an approach benefits creators, users, and the business community and therefore holds the promise of a consensus-based roadmap for reform."

A couple of links for the day

Cornell Law Library's terrific InSITE service has recommended a couple of interesting links, one I've found useful for many years and one I hadn't previously come across, the Global Legal Information Network (GLIN) and the United Nations Scholar's Workstation respectively.
"GLIN: Global Legal Information Network
http://www.glin.gov/

The Global Legal Information Network (GLIN) is a product of the Law Library of Congress that provides a freely searchable “public database of official texts of laws, regulations, judicial decisions, and other complementary legal sources contributed by [approximately thirty] governmental agencies and international organizations ... in their original languages.” Every document record includes an English summary, as well as assigned subject terms. Advanced features allow searching by jurisdiction, publication and issuance date, subject, document type, and language. Results may be sorted or narrowed by jurisdiction, relevancy, or publication date. Related legal resources are grouped together for ease of access. Where available, the original documents are scanned color PDFs. GLIN is a classic free resource for researching foreign and international law. [JJ]

[...]

United Nations Scholars' Workstation
http://www.library.yale.edu/un/

Developed by the Yale University Library and the Social Science Statistical Laboratory, "the United Nations Scholars' Workstation is a collection of texts, finding aids, data sets, maps, and pointers to print and electronic information." The Workstation is maintained by the United Nations Studies program. Topics covered include disarmament, economic and social development, environment, human rights, international relations, international trade, peacekeeping, and population and demography. The site categorizes its links into two areas, "Research Tools to Locate UN Information", which links to particular types of content (i.e. "Numeric Data" or "Maps") and "Research Approaches to UN Information", which categorizes information by different approaches such as UN organizational structure or geographic area. This multi-axis approach makes the site more accessible. The site primarily links to and aggregates external sources; no internal search engine seems to be available. The site is most valuable for demonstrating how the different UN agencies are linked to each other. [BWK, JPC]"
InSITE contributors: J.P. Cusker, J. Jones, B. Kreisler, J. Pajerek (editor)

Microsoft walk away from Yahoo! deal for the moment

Steve Ballmer has called a halt to Microsoft's attempts to takeover Yahoo!