Friday, June 13, 2003

The Canadian parliamentary committee investigating the Privacy Commissioner, George Radwanski, are anonymously leaking it to the press that they have "lost confidence" in him and apparently preparing the ground for a recommendation that he be sacked.
Ernie the Attorney and Jenny Levine (aka the shifted librarian) are concerned about cuts in library funding and the affect it is going to have on our collective ability to be able to search for information. They've got a point. How many folk, for example, when using Google, use any of the tricks Simson Garfinkel points out to allow us to make our searching more effective?
The Foundation for a Free Information Infrastructure are getting agitated about developments in Europe on software patents. The Eurolinux Alliance have an online petition "to warn European Authorities against the dangers of software patents." Meanwhile, the proponents of software patents like Labour MEP, Arlene McCarthy, are merrily winning the PR battle by painting the opposition as extremists. As Doc Searls said, Hollywood won the Eldred case
"because they have successfully repositioned copyright as a property issue.
In other words, they successfully urged the world to understand copyright in terms of property. Copyright = property may
not be accurate in a strict legal sense, but it still makes common sense, even to the Supreme Court. Here's how Richard
Bennett puts it:

The issue here isn't enumeration, or the ability of Congress to pass laws of national scope regarding
copyright; the copyright power is clearly enumerated in the Constitution. The issue, at least for the
conservative justices who sided with the majority is more likely the protection of property rights. In order
to argue against that, Lessig would have had to argue for a communal property right that was put at odds
with the individual property right of the copyright holder, and even that would be thin skating at best. So
the Supremes did the only possible thing with respect to property rights and the clearly enumerated power
the Constitution gives Congress to protect copyright.

Watch the language. While the one side talks about licenses with verbs like copy, distribute, play, share and perform, the
other side talks about rights with verbs like own, protect, safeguard, protect, secure, authorize, buy, sell, infringe, pirate,
infringe, and steal.

This isn't just a battle of words. It's a battle of understandings. And understandings are framed by conceptual metaphors. We
use them all the time without being the least bit aware of it. We talk about time in terms of money (save, waste, spend, gain,
lose) and life in terms of travel (arrive, depart, speed up, slow down, get stuck), without realizing that we're speaking about
one thing in terms of something quite different. As the cognitive linguists will tell you, this is not a bad thing. In fact, it's very
much the way our minds work.

But if we want to change minds, we need to pay attention to exactly these kinds of details."

Doc also points to George Lakoff's wonderful essay Metaphor, Morality, and Politics Or, Why Conservatives Have Left Liberals In the Dust, on a similar theme.

Since the DVDCCA v Bunner DeCSS trade secrets case from California recently reached the Supreme Court, I was reminded of a sharp sartire on osOpinion some time ago.

Thursday, June 12, 2003

Larry Lessig and Matt Oppenheim (of the Recording Industry Association of America) debated the Copyright Conundrum at PBS. Wide ranging interesting debate in reponse to a series of provocative questions. Donna Wenthworth points to one of her favorite Lessig quotes from the debate, "The RIAA is the Recording Industry Association of America. It is not the Recording Industry and Artists Association of America. It says its concern is artists. That's true, in just the sense that a cattle rancher is concerned about its cattle." Ouch.
AOL's changes to spam filters are affecting more than the Well, apparently.
In the UK, the Independent reports that Employers who snoop on e-mails risk penalty, as the Information Commissioner finally publishes his code of practice on monitoring employees at work.
The very active Canadian Privacy Commissioner, George Radwanski, is possibly facing disciplinary charges, according to some press reports. Radwanski has upset a few politicians in his time as Commissioner, so it's not surprising, in a way, that he will be subject to such scrutiny and political maneouvering. The timing is interesting, as he has just had his suit over police camera surveillance in British Columbia dismissed by the province's supreme court. He has also just upheld a customer complaint against an airline that denied that customer
"access to its Web site because his browser was
configured to disable “cookies”; and (2) that the company collects the
personal information of its Web site visitors without their knowledge
and consent by placing a cookie on their computers’ hard drives."
Alan Gathright at The San Francisco Chronicle seems to think that the No-fly list ensnares innocent travelers because the government and the airlines are using old software to do the sifting. What if they used newer software?

Nice commentary on the systemic hypocracy visited upon society by the image merchants of our times and the pressure we implicitly as a society place on these characters to pretend to be better than they are.
Is AOL blocking email from The Well? This is the kind of thing that Larry Lessig worries about.
Joi Ito has published A Report of Research on Privacy for Electronic Government He got funded by the Japanese government "to produce a global report on privacy technology and legislation."
From the Creative Commons weblog, Amazon CEO, Jeff Bezos, is recommending Cory Doctorow's Down and Out in the Magic Kingdom, which is available under a creative commons license.
The European Union is on the official US Trade Representative 2003 Intellectual Property Special Report Priority Watch List. The complaint in full on the website states:
At the conclusion of the 1999 Special 301 review, the United States initiated a
"WTO dispute settlement case against the EU, based on the apparent TRIPS
deficiencies in EU Regulation 2081/92, which governs the protection of geographical
indications (GIs) for agricultural products and foodstuffs in the EU. The regulation
appears to deny national treatment to foreign GIs. According to the plain language
of the regulation, only EU GIs may be registered. With respect to trademarks, the
regulation permits dilution and even cancellation of trademarks when a GI is created
later in time. Our initial WTO consultation request alleged that this regulation
denies national treatment to foreign geographical indications, and does not provide
sufficient protection to trademarks that are similar or identical to a GI and is,
therefore, in violation of the TRIPS Agreement. The United States requested
consultations regarding this matter on June 1, 1999, and numerous consultations
have been held since then. However, to date, we have not reached a mutually
agreeable solution. While the EU has recently issued some amendments to its
regulation, these amendments do not address our principal concerns with respect
to full national treatment and appropriate protection for trademarks. Finally, lack of
full implementation of the EU Biotech Directive by EU member states is also of
The brittle EU - US relationship over agriculture even spills over into trademarks.
Larry Lessig, James Boyle and co. have produced a model letter for US citizens to send to their Congressional representatives, encouraging them to support the Eric Eldred Act.
Mary Hodder at the Berkeley IP weblog points us at Wilful Infringement an ad for a DVD movie "that Disney does NOT want you to watch!" It appears to be a poke at the overbroad nature of copyright laws and the influence large copyright holding companies have in the arena. Lawrence Lessig & Mickey Mouse, amongst others are in it.

Edward Felten doesn't think the SCO claims over Linux are really about problems with open source at all. So maybe my suggestions that Bill and Steve would be please about the spat are overreaching? Ed has a point but I doublt it will stop the case being wielded in the PR battles to come.
Eugene Volokh's original concerns, about Larry Lessig's petition to levy a $1 fee to retain copyright beyond 50 years, have been somewhat tempered by some research he has done. He is still not convinced about the idea but considers it worth discussing. His original concern: "I think that the forfeiture for nonpayment of the registration fee may constitute a taking of property, and may thus put the federal government on the hook for compensation, at least in some cases." Now he's found a 1982 Supreme Court case Texaco, Inc. v. Pond, which said that the government may require property owners to periodically register theri claims without having to compensate them. He is "still not completely sure that such a registration requirement would be entirely fair to the copyright owner" but accepts there are indeed good policy arguments for clearing away those property interests that aren't really being exploited by the owner, and are just interfering with the potentially valuable behavior of others." I don't always agree with Prof. Volokh but he certainly brings an interesting perspective to bear on complex issues.
Apparently the latest version of ReplayTV's digital video recorder has cut out previous version features such as the ability to share shows and skip ads. Digital Networks North America who acquired the brand from the sued-into-oblivion SonicBlue don't want to get into similar hot water with the entertainment industry. The movie industry are pleased suggesting it is "a step in the right direction." The EFF are less so, ``There's a pretty clear message being sent that Hollywood can dictate what technologies consumers can and cannot use. What we are concerned about is there's little room for technological innovation.''
There have apparently been further developments in the SCO v linux battle. eWeek says "SCO Group may have violated the
terms of the GNU GPL (General Public License) by incorporating source code from the Linux kernel into the Linux Kernel Personality feature found in SCO Unix without giving the changes back to the community or displaying copyright notices attributing the code to Linux." More ammunition for Bill Gates and Steve Ballmer.
Inventor Thomas Woolston's courtroom win in his business process patent lawsuit against eBay has not gone down too well with some. The patent concerns buying something at a fixed price over the internet. The victor is not happy with his critics claims that he should never have got a patent on such an obvious application of an idea: ``It's the combination of elements that defines the invention. There are 42 patents on the Post-It note. It's the combination of a not-so-good glue and a pad of paper,'' Woolston said. Whadaya know - 42 patents on the Post-It. I knew there were a lot but didn't realise it might be that high.

Monday, June 09, 2003

A bit of fun at Michael Powell's expense over the FCC decision to relax media concentration rules can be had at SFGate. Mark Fiore has also done some satirical animations on other aspects of the information age such as the TIA.
CNet News have an interview with Larry Lessig about the petition to reclaim the public domain. I referred to this effort recently to convince Congress to introduce a law to get copyright holders to pay $1 fifty years after a work is published in order to get the copyright extended. If the $1 is not paid the work passes into the public domain.
FIPR point to Cryptome on Friday last -

"One problem that most naive paranoid types completely fail to grasp is the titanic volume of modern communications. The flow
is so overwhelming that only a powerful God could possibly process it all to find interesting material. The entire federal budget
could not pay enough humans to screen and analyze ALL the electonic communications of even a medium size city in 2003.
So communications intercepts are necessarily targeted very narrowly, even drag net fishing is likely done only in places where
there is a real likelihood that something important will turn up with finite effort.

The notion that an all powerful big brother is listening to everything and capturing everything just is not realistic, and a very very
high percentage of what does get captured is never looked at or listened to or even stored for very long."

Only the practioners really ever understand the limitations of the technology - drinking from the firehose being one of the most obvious....
A Republican Senator is introducing a bill to regulate DRM technologies - the idea is to force content owners "to prominently disclose to consumers the presence of anticopying technology in their products" and protect the right of consumers to resell copy protected CDs or DVDs.

Are the P2P file sharing networks about to start suing each other? Stefanie Olsen, John Borland and Evan Hansen seem to think so as they report that Alnet is claiming rival networks may have infringed a patent it holds on digital tags. Altnet has licensed the 'TrueNames' patent to Sharman Networks, owners of Kazaa. The Altnet ceo says "We're very focused on preserving the integrity of the patent and realizing the potential it offers peer-to-peer applications and content owners." Sounds to me like an invitation to the IP lawyers to make hay while the sun shines.
Having been buried in other things I missed the fact that Verizon had agreed to reveal the until now anonymous p2p file sharers to the RIAA. The EFF are not happy.

Meanwhile the Register is questioning the veracity of the WSJ story I posted a link to earlier in the day, regarding the alledged crackdown on P2P users in Italy.
Anita Ramasastry writes an article called : Third Party Data Monitoring and Collection on the Internet: Is it Illegal Wiretapping? on the excellent Findlaw website. Interesting look at the Pharmatrack case where the US Court of Appeals for the 1st circuit suggested such data collection might breach the Electronic Communications Privacy Act of 1986 (ECPA). It would be quite funny if a law that old jumped up to bite the personal data trawlers and direct marketers of this world. I wonder if it was considered in the Toysmart (2000-2001) or DoubleClick (1999-2001) cases.
Italy and Germany now appear to have implemented their versions of the EU copyright directive. The Italian version became effective on 28th April 2003.
The Royal Society in the UK have produced an interesting new report "Keeping science open: the effects of intellectual property policy on the conduct of science". It emphasises the fundamental requirement that for science to thrive, there needs to be "a free flow of ideas and information" and that IPRs can interfere with this through encouraging a climate of secrecy. "The merits of universities actively obtaining IPRs, as opposed to disseminating knowledge and allowing industry to protect its developments, are not well documented and would be worthy of further study in the UK." It highlights the damgers of the overreaching effects of unbalanced intellectual property laws and given the distinguished panel of people who put the report together, including the late Roger Needham, merits considerable thought.

The Introduction gives a taste of the direction of the report in its opening paragraphs:

"Productive scientific research requires free and rapid flow and exchange of information. The presence or process of securing formal intellectual property rights (IPRs) may restrist this flow, and thus can impede or conflict with the effective development of science.

Yet IPRs can simultaneously encourage innovation by leading to reward, and permit publication by scientists in industry of information that would otherwise be withheld. IPRs can therefore increase actual information availability, flow and use, and thus the rate of progress of science. Achieving the right balance between the encouragement of innovation and information flow, and the extent to which restrictions need to be inherent in IPRs, is an important issue of public policy. Many believe that the current balance is not optimal and additionally is eroding the area of common knowledge that is the very foundation of science. We have therefore considered whether there could be improvements in the way intellectual property law, its interpretation and it use impact on science."

The summary concludes (

"There are some overarching aspects of IP law that are as relevant today
as they have ever been. One is that the law does, by its nature, confer
exclusive rights on the rightholder in exchange for well-defined rights
for society. A good balance provides just sufficient incentive to
encourage research and development by potential rightholders but retains
a high level of benefit for society.

Advances of technology and commercial forces have led to new IP
legislation and case law that unreasonably and unnecessarily restrict
freedom to access and to use information. This restriction of the
commons in the main IP areas of patents, copyright and database right
has changed the balance of rights and hampers scientific endeavour. In
the interests of society, that balance must be rectified."