Friday, November 28, 2008

Censorship, Brand and Ross

Now the furore has died down on the Russel Brand/ Jonathan Ross affair its worth revisiting Steve Bowbrick's comments on the fallout.

"I’m just going to come out and say this because I have a feeling you might not agree with me (at least not if you’re over about 35). The Russell Brand show—the one with Andrew Sachs’ answerphone—was absolutely brilliant. Offensive and childish (clever Howard Jacobson in The Independent calls it ‘front bottom babyishness’) but also genuinely exciting. I imagine you’ll think me shallow now, or worse, collusive in cruelty to elderly actors, but I’ve listened to the whole show and it’s very funny—in that hands-over-your-ears, can’t-bear-to-listen kind of way that edgy comedy ought to be...

What went wrong here, of course, was all in the management of the fall-out from the Mail on Sunday’s hatchet job, in Radio 2’s disastrous executive inertia and in the naivety of allowing Ross and Brand’s implacable enemies at The Mail to control the story for days. But I’ve written about all that over at Common Platform. Have I got this wrong? Should the BBC really have caved in so cravenly? Could Thompson not have come back from his holiday with a robust defense in his briefcase and told The Mail where to get off? Listen to the show yourself, and tell me what you think. "

Thursday, November 27, 2008

Guilty verdict in MySpace suicide case

The NYT reports that:

"A federal jury here issued what legal experts said was the country’s first cyberbullying verdict Wednesday, convicting a Missouri woman of three misdemeanor charges of computer fraud for her involvement in creating a phony account on MySpace to trick a teenager, who later committed suicide...

Legal and computer fraud experts said the application of the federal Computer Fraud and Abuse Act, passed in 1986 and amended several times, appeared to be expanding with technology and the growth of social networking on the Internet. More typically, prosecutions under the act have involved people who hack into computer systems.

“Keep in mind that social networking sites like MySpace did not exist until recently,” said Nick Akerman, a New York lawyer who has written and lectured extensively on the act. “This case will be simply another important step in the expanded use of this statute to protect the public from computer crime.”

Other computer fraud experts said they found the verdict chilling.

“As a result of the prosecutor’s highly aggressive, if not unlawful, legal theory,” said Matthew L. Levine, a former federal prosecutor who is a defense lawyer in New York, “it is now a crime to ‘obtain information’ from a Web site in violation of its terms of service. This cannot be what Congress meant when it enacted the law, but now you have it.”"

Update: Lilian has done an interesting and thoughtful analysis of the case from a UK perspective.

Should judges respond to criticism

David Pannick has been asking in today's Times if judges should respond to criticism, after the editor of the Daily Mail recently severely criticised Mr Justice Eady's approach to interpreting the Human Rights Act.

"In 1900, the editor of the Birmingham Daily Argos was fined £100 by the Lord Chief Justice for describing Mr Justice Darling as an “impudent little man in horsehair”... Today, we rightly take a more tolerant approach to criticism of the judiciary. But the critical comments by Paul Dacre, Editor of the Daily Mail, about the judgments of Mr Justice Eady in privacy cases raise important questions about how judges should respond.

In a speech to the Society of Editors on November 9, Dacre accused Mr Justice Eady of “an animus against the popular press”, and complained that the judge had given “arrogant and amoral judgments” that had created a privacy law “with a stroke of his pen”. However strongly Dacre may resent privacy law (except, of course, when his newspaper is campaigning against local authority “snoopers” who pry into the contents of our dustbins), there is no justification for the criticisms.

Justice Eady has faithfully performed his duty to implement the Human Rights Act, which includes a legal right to the protection of private life, and to apply the principles developed by the Court of Appeal and by the Appellate Committee of the House of Lords in a number of recent cases involving newspapers. Any litigant who is dissatisfied with the judgments given by Mr Justice Eady may seek to appeal to the Court of Appeal, to the House of Lords and to the European Court of Human Rights. "

Well said. Mr Justice Eady's decisions, in a variety of human rights and internet defamation cases that I'm familiar with, have always been well framed, carefully considered and thoughtful, even though I haven't always agreed with him. I can only wholeheartedly agree with David Pannick that there is no justification for the attack made by Paul Dacre on the esteemed judge.

MEPs rush through copyright term extension

From Sound Copyright (ORG and the EFF):

"The flawed proposal to extend the term of copyright protection afforded to sound recordings, robbing consumers in the name of performers but for the benefit of the world’s four major record labels, is being fast-tracked through the democratic process. Earlier this month MEPs from the relevant European Parliament committees presented their draft reports at a meeting of the legal affairs committee (JURI), the Committee which will make recommendations to the European Parliament on how to vote on the Directive early next year. They proposed a host of worrying new amendments which threaten to:
  • Weaken further already inadequate measures intended to allow orphan works, and commercially worthless but culturally significant recordings to pass into the public domain (Culture (CULT), Internal Market (IMCO) and the Industry, Technology and Research (ITRE) committees draft reports).
  • Allow record labels to deduct “costs” from a fund intended to benefit session musicians, further shrinking the pot of money made available to performers in favour of labels (IMCO committee draft report).
  • Dramatically widen the scope of the Directive to include audio-visual recording, even though no relevant impact assessment has been conducted into what effect this might have on consumers and follow-on innovators. (JURI and ITRE committee draft reports).

At the JURI meeting, Dr Lionel Bently of the Centre for Intellectual Property and Information Law (CIPIL) Cambridge, dismissed the proposal stating that “record producers will gain the lion’s share of revenues on sales in the extended term”. He warned that the Directive would accrue serious social and economic costs, and concluded that MEPs should “oppose this measure in its totality.”

Bently is not the only expert to oppose the Directive. In an open letter to MEPs, Europe’s leading intellectual property research centres unanimously condemned the proposal. The European Broadcast Union has also stated publicly that the proposal will make consumers foot the bill while stifling innovation.

Earlier this month ORG met with MEPs in the European Parliament to express our serious concerns about the proposal. We warned that the European Commission’s own figures demonstrate that performers will benefit little from the extended term, while the world’s four major record labels will gain millions of Euros direct from consumer’s pockets. We argued that this damaged the respect necessary for a functioning IP system.

But our voice is not as powerful as yours. It’s vital that you contact your MEPs now and tell them why term extension is bad news.

With all the evidence pointing against this measure, you can call on your MEPs to put a stop to bad IP law and reject this proposal. You can also also tell the appropriate government department in your own EU country (in the UK it is DCMS), as they will be meeting in the Council of Ministers to discuss term extension.

With the European elections next year, Parliament is set to move quickly on this issue. It’s up to you to remind your representatives that their job is to look out for your interests, not to rush through bad law."

Leading IP experts from all round the EU have written to the President of EU Commission in June, the Times in July, (at which point William Patry supported them), opposing this ill-conceived copyright term extension. In August Professor Bernt Hugenholtz wrote an open letter to the President of the EU Commission Jose Manuel Barroso criticising the Commission's moves on copyright for ignoring the evidence presented in EU commissioned studies. August also saw my submission (excuse the format, if anyone would like a pdf copy let me know), ORG's submission and various others to the UK Intellectual Property Office consultation on EU copyright term extension, opposing such an extension. ORG said at the time:

"Our submission shows that for the vast majority of performers the projected extra sales income resulting from term extension is likely to be meagre: from as little as 50¢ each year in the first ten years, to as “much” as €26.79 each year. That’s because most of the gains (89.5%) will go to the top 20% of recording artists. Meanwhile the major labels will be dividing up millions in extra handouts every year.

What’s more, performing artists will make no extra revenue from radio airplay and other income streams arising from so-called “secondary remuneration rights”, and may even make less. The Commission assumes that fees paid by users of recordings, e.g. broadcasters, will remain constant. That means the amount of earnings available to performers will not be any bigger - it will just be sliced more thinly and distributed longer to more rightsholders. Performers will not earn any more over their life time, and are likely to earn less, as money will be transferred from the living to the estates of the dead.

The proposal is set to cost hundreds of millions to consumers, with repercussions to the public interest, follow-on innovators and cultural diversity. It serves as a windfall for an industry the Commission would have us believe is immune from simple economic logic. No wonder Europe’s leading copyright thinker - and adviser to the European Commission - has accused the Commission of wilfully misleading the European Parliament, and the citizens of the European Union."
October rolled on and saw a continuance of Lionel Bently, Martin Kretschmer, Bernt Hugenholtz and cos' efforts to expose members of the EU parliament to some common sense thinking on copyright term extension. They said:

"Instead of doing their economic homework, the Commission offers a misleading story about performers facing "an income gap at the end of their lifetimes" [Explanatory Memorandum to Proposed Directive, p. 4; Press releases 14 February 2008 and 16 July 2008]. The language of "artists who lose their pension when they need it most" is copied directly from lobby documents supplied to the Commission by the record industry. Extension is then dressed up as a "social measure".

The most cursory analysis will show that nothing could be further from the truth. Under the current 50 year term, a track recorded when a performer was 25 will be protected until age 75. If the artist continued recording throughout her performing life, the current term will most likely outlast the performer's lifespan. Not a single artist has a life expectancy of 45 years at age 75 – yet this is the extension the Commission proposes. If the Commission really wanted to help performers, it would (i) limit the term to the artist's life, (ii) make such a term not available to record producers (labels), and (iii) look at recording contracts during the existing term. Any independent assessment will show the "ageing performers" argument as a smoke screen.

The chief beneficiaries from extension are:

1. Major rightholder who control a back catalogue of records that reaches back further than 50 years. The four major multinational record companies Universal, Sony BMG, Warner Music and EMI own almost all the key records that would benefit from retrospective extension.

2. Best-selling artists such as Cliff Richard, Johnny Hallyday, and their future estates. Is channelling money to estates a productive measure?

3. Collecting societies who will process increased income either from airplay or a social fund (and take a commission for it).

4. Minor beneficiaries are ordinary working performers. The bottom 80% of performers would each receive between € 4 and € 58 a year (calculation based on Commission's own figures). Some of these benefits however come at the costs of younger performers just entering the profession, as the same pot of money will have to be shared by more artists, many of whom are or will be dead.

The contrast between marginal benefits to ordinary performers, and huge benefits to multinational producers is stark. The costs of copyright extension will be borne by European society as a whole through higher prices and licence fees, stymied innovation, and hindered diversity."

In addition they provided:

- specific independent responses to the Commission's Frequently Asked Questions template

- 4 page analysis of key economic data

- a list of academic submissions opposing term extension

- a long list of prestigious academics who have actively opposed the copyright term extension plan.
In November Lionel Bentley testified before the EU Parliament's JURI (legislative affairs) committee and asked them to oppose the directive on term extension in its entirety. He pointed out that
- the main beneficiaries would be the 4 big record labels and best selling artists

- the social costs would be huge

- the average benefits to session musicians supposedly targeted by the proposal would be miniscule

- the justification for legislating in relation to a single group of performers was unclear especially when the primary benefits would in practice flow elsewhere and impose costs on the public amounting to €1 billion.
Who are the politicians listening to, however? That seems all too clear and it's not the academic experts or the public interest groups

Royal Society of Chemistry lament state of education system

The Royal Society of Chemisty has delivered a petition to the Prime Minister lamenting the "catastrophic decline in school science exam standards"
"Armed with the first hard evidence of a catastrophic slippage in school science examinations standards, the Royal Society of Chemistry (RSC) has launched a Downing Street e-petition calling for urgent intervention to halt the slide.

And tomorrow morning a devastating RSC report demolishing the myth of record-breaking science education performance will land on the desks of all Members of Parliament.

The RSC report, also being supplied to industrialists and educationalists, raises major concerns over the disappearance from schools science examinations of vital problem-solving, critical thinking and mathematical manipulation.

Dr Richard Pike, chief executive of the RSC said: "The target of our campaign is a failed education system, not the youngsters it's supposed to serve."

The petition reads:

"We, the undersigned, petition the Prime Minister to reverse the demonstrable decline in school science examination standards that is destroying our competitiveness. Science examination standards at UK schools have eroded so severely that the testing of problem-solving, critical thinking and the application of mathematics has almost disappeared.

Even bright students with enthusiastic teachers are being compelled to "learn to the test", answering undemanding questions to satisfy the needs of league tables and national targets. The RSC has powerful evidence of the decline in standards, adding to the revelation that students are able to receive a "good pass" with a mark of 20%.

This system is failing an entire generation which will be unequipped to address key issues facing society, whether as specialist scientists or members of a wider scientific community. The record-breaking results in school examination passes are illusory, with these deficiencies having to be remedied at enormous expense by universities and employers. This is compounded by key sections of the education community being in denial.

Unless addressed, we will see a continuing decline in our international competitiveness, reduced prosperity for ourselves, and limited career prospects for our children.

Urgent action is required before it is too late."...

"We are witnessing an illusory Great Leap Forward in education, where achieving contrived targets has become the end in itself. The proof lies in the enormous expense to provide remedial mathematics and even remedial science classes at university, and the lack of skills of graduates highlighted by employers.""

The petition has attracted 2442 signatures already including a collection of high profile scientists like Susan Blackmore, Steve Jones, Jon Crowcroft and numerous others. The rot sets in in primary schools, continues through secondary 'education' and the university sector is, very sadly, not immune to the "maths is too hard so best avoided" meme. The kids that performed so badly in the RSC trials are perfectly capable of doing well in such tests if they have been appropriately prepared. Edison said success is 1% inspiration and 99% perspiration. Maybe we could interpret that axiom as success is 1% intellectual capacity/potential and 99% perspiration? Today's children have every ounce and more of the intellectual capacity of earlier generations but the education system is failing completely to facilitate the development of the potential of the 1% in everyone.

Wednesday, November 26, 2008

EU culture ministers reject 3 strikes

Glyn Moody is pleasantly surprised that the meeting of EU culture ministers last week rejected the notion of a 3 strikes approach to dealing with peer to peer copyright infringement on the web. I hope he won't mind me incorporating his comments here in full, since he so neatly sums up my own perspective on this unexpected development.

"Wow. I was convinced that the meeting of EU culture ministers yesterday was going to end badly; I was wrong - and I take my virtual hat off to them:

EU culture ministers yesterday (20 November) rejected French proposals to curb online piracy through compulsory measures against free downloading, instead agreeing to promote legal offers of music or films on the Internet.

The EU Culture Council pushed yesterday (20 November) for "a fair balance between the various fundamental rights" while fighting online piracy, first listing "the right to personal data protection," then "the freedom of information" and only lastly "the protection of intellectual property".

The Council conclusions also stressed the importance of "consumers' expectations in terms of access […] and diversity of the content offered online". No mention was made of a gradual response to serial downloaders of illegal cultural material, as foreseen by the French authorities.

I think this is very significant, because it indicates that the culture ministers and their advisers are beginning to understand the dynamics of the Net, that throttling its use through crude instruments like the "three strikes and you're out" is exactly the wrong thing to do, and that there are serious issues to do with freedom of information at stake here that cannot simply be brushed aside as Sarkozy and his media chums wish to do.

Judging by the generally sensible tone of the meeting's conclusions, the optimist in me starts to hope that the tide is finally turning. However, I do wonder whether this saga is finished yet, or whether the Telecoms Package still has some teeth that it can bare....

Update: Following up that thought, here's a letter I've sent to the relevant UK ministers who will be involved in a crucial meeting on the Telecoms Package this week (24/11/08)."

Please do also read his succinct 'save our amendment' letter to UK ministers summing up the importance of retaining amendment 138 in the telecoms package. Absolutely spot on.

FIPR on further legal problems for Phorm

FIPR has issued a press release detailing furher legal problems for Phorm.

"RELEASE: 25 November 2008

The November 2008 issue of "Computers and Law", the highly respected publication of the Society for Computers and Law, carries an article by Nicholas Bohm, General Counsel for the Foundation for Information Policy Research (FIPR), and Joel Harrison, an associate at Milbank, Tweed, Hadley & McCloy LLP.

The article considers a new set of legal issues that arise from the deployment of "behavioural advertising" systems that provide targeted advertising by snooping on Internet users' web browsing. In particular, it considers whether the system from Phorm Inc that is currently being tested in the UK by BT under the "Webwise" brand name will infringe the legal rights of intellectual property holders.

Earlier legal analysis by Nicholas Bohm has shown that deployment of the Phorm system amounts to illegal interception of web traffic, contrary to s1 of the Regulation of Investigatory Powers Act 2000.

The new article explains how the Phorm system will also infringe the database right for some website owners. It further shows that the Phorm system will infringe almost all website owners' copyright. The way that the Phorm system works means that it will make an infringing copy of the website content; and none of the statutory exceptions in the Copyright Designs and Patents Act 1988 are applicable.

Website owners can take action through the courts to defend their rights. The article explains that this is not mere legal quibbling, since some website owners will suffer actual harm from the Phorm business model. The authors point out that although damages could be awarded for the infringements, an alternative remedy would be for the claimant to go after the profits made from the infringing acts, preventing the ISPs who deploy Phorm from making any money from their illegal systems.


"Profiling Web Users -- Some Intellectual Property Problems", Nicholas Bohm and Joel Harrison, Computers and Law 19(4), November 2008

Nicholas Bohm's earlier legal analysis, concentrating on criminal law infringements such as illegal interception:

Richard Clayton's technical analysis of the Phorm system:


Said Nicholas Bohm, General Counsel, FIPR:

"My earlier legal analysis shows that the operation of Phorm's system involves illegal interception, fraud and breach of the data protection principles. Now, with the help of my co-author Joel Harrison, I've explained how the system infringes the copyright and database rights of many Internet content providers. These companies have the option to take court action to ensure that Phorm, and the ISPs that use their system, are unable to profit from their illegal actions -- Phorm and the ISPs have only one sensible option: to abandon their plans altogether.""
It's pretty damning.

40,000 ebooks a day downloaded through Stanza

According to Hugh McGuire at the Huffington Post,

"40,000-a-day. That's how many e-books are getting downloaded through Stanza, the simple e-book platform for the iPhone/iPod. I've got 35 of them sitting on my iPod. All of them free, public domain or creative commons, and DRM-free.

40,000-a-day. If you are a publisher, think long and hard about that number.

The reason I have 35 books downloaded onto my Stanza is: a) it is easy, b) it is free.

What does this mean for your business model? I don't know, but I assure you that when I finish War & Peace, I'll be buying a hard copy. And I also assure you: I love reading on that little thing."

With services like the Daily Lit, masses of public domain works available on the Net, and publishers waking up to the increasing utility of ebook readers with fantastically improved screen resolution and readability, reading habits are changing but there is one remaining fly in the ointment for me - the need to cart around the charger for whatever device we happen to be currently using to enjoy our electronic literature without interruption. Until I can get through the collective works of Tolstoy or Anthony Horowitz for that matter, without having to repeatedly plug my dedicated ebook reader (e.g. Kindle) or my Stanza-enhanced iPod Touch into the wall, I won't be entirely happy with ebooks. Convenience beats free and the paperback still retains its edge. However, in the kind of bite-sized chunks that the Daily Lit serves up is it possible that I might one day complete Joyce's Ulysses, something I never managed to do with the paperback?

Horowitz on how to deal with lawyers: avoid them

My kids love Anthony Horowitz's work, from the Diamond Brothers mysteries through Alex Rider and on to the Power of Five series. But one of the things I really like about Horowitz himself, beyond the fact that he writes entertaining books, plays and TV scripts, is the progressive perspective he takes to life's difficulties and his line on the best way to deal with lawyers: avoid them!

"I don’t know how many of you have been reading his DEMONATA series. I must say I’ve been enjoying it. But Volume 8, WOLF ISLAND, has just come out and I notice that there is a character in it called Antoine Horwitzer. Any ideas who that could be? In the story, he’s a sort of mad scientist type...

Anyway, my lawyers have studied the book and the bad news for Darren Shan is that they agree it’s definitely defamatory…which is to say that I could win millions from him in court. The good news is that I’ve decided not to sue. If there’s one piece of advice that everyone should stick to in their life it’s AVOID LAWYERS. This is good advice even for lawyers. However, I will be having my revenge. Next year, I have a third collection of horror stories coming out. The title (at the moment) is: AAAGH: TEN UNUSUAL WAYS TO DIE and one of the stories is called THE MAN WHO KILLED DARREN SHAN. I have started re-writing it. Out go all the compliments about CIRQUE DU FREAK and THE DEMONATA. And instead…

Next Halloween, Darren. Wait and see."

Very good.

He's also on record lamenting the state of copyright laws and pointing out, patiently and affably, the degree to which writers like himself depend on earlier creators for inspiration. Anyone reading the Diamond Brothers stories, who is familiar with the work of Raymond Chandler and Alfred Hitchcock, for example, can't fail to see the plot origins of Horowitz's stories in that series. As far as I know it never became an issue but it would have been criminal if some over excitable copyright lawyers or movie companies' legal representatives got in the way of the publication of such an entertaining series of books for kids.