Declan McCullagh's piece on the FCC's introduction of the broadcast flag, "Are PCs next in Hollywood piracy battle?", has been published by the New York Times.

"What FCC officials did not stress, but their regulations do, is that the product definitions are broad enough to cover not just TV
tuners but also PCs. "This necessarily includes PC and (information technology) products that are used for off-air DTV (digital
television) reception," the FCC's order says...

Will Rodger, director of public policy at the Computer and Communications Industry Association (CCIA), said the rule is
troubling because it means the FCC is encroaching on a technological sector that has flourished in the absence of regulation."

As Ernest Miller said earlier in the week,

"Prof. Ed Felten makes a good point on Freedom to Tinker about the FCC's justifications for the Broadcast Flag - they are incoherent (The Broadcast Flag, and Threat Model Confusion). The justifications for the broadcast flag and the effect of the broadcast flag are tangentially related at best. In the words of the FCC, "the broadcast flag seeks only to prevent mass distribution over the Internet." Additionally, according to the FCC, "consumers’ ability to make digital copies will not be affected."

Whether or not you agree with the justifications is not the question. The issue is whether the means the FCC has chosen are suited to the justifications. As Felten points out, they are not. The action the FCC has taken will not significantly, if at all, "prevent mass distribution over the Internet." It will, however, impede the average consumer's ability to make copies for friends and family.

A New Zealand anti war activist has apparently been charged with mis-using the phone under the Telecommunications Act for sending an email to the US embassy protesting the war in Iraq.

"Mr Hubbard last night said he had been charged under the Telecommunications Act and had been told by police they would seize information from his computer under the Counter-Terrorism Act."

I doubt this story is as simple as this report makes it appear.

For T182 students familiar with the Diebold electronic voting machine controversy, Ernest Miller engages in a timely discussion of bias in online sources, just as we've started looking at the issue in the course.

Someone is criticising Mary Hodder at bIPlog at the University of Berkeley, California, for her short note about the EFF and Stanford suing Diebold.

Miller, JD Lasica of the Online Journalism Review and Mary Hodder herself mount a robust defense of the posting.

Which of the following tactics do you think the complainant engages in -

appealing to emotion and prejudice;

extrapolating opposition argument to the absurd and then refuting the absurd;

using sarcasm, innuendo, denigration and other forms of humour to belittle opponents;

grouping all opponents under one label, a category easy to dismiss;

using jargon to confuse;

non sequitur - drawing an illogical conclusion from sound data.

(There are, of course many more but let's stick with these for the moment).

He does make a couple of interesting points:

1. Although the case was fast-tracked the judge refused to issue an injunction preventing Diebold from continuing to send out their cease and desist letters until the hearing.

2. A question - do rules of "fairness and accuracy" apply in the "blogosphere" - are blogs more or less reliable sources than traditional media?

Hodder, Lasica and Miller all have comments on the latter.

It seems that some Penn State University students are about as impressed as Derek Slater when it comes to the deal with Napster.

The World Intellectual Property Organization have agreed to develop a draft treaty on webcasting by April 2004, based on a proposal put forward by the US.

"Jamie Love, who works for the Ralph Nader-affiliated Consumer Project on Technology, says the treaty is worrisome because it creates an additional legal protection for works in the public domain that are Webcast...

Seth Greenstein, a partner at law firm McDermott Will & Emery who represents the Digital Media Association, said the treaty is necessary to protect the rights of Webcasters in WIPO nations that do not have copyright laws as extensive as those in the United States...

He acknowledged Love's concern about the sweep of the treaty, but said such restrictions were necessary to protect the economic investment of Webcasters."

According to the Legal Media Group, Microsoft are looking to do an IBM with their intellectual property assests and have hired the former IBM IP guru, Marshall Phelps to do it for them. IBM derive a large income from licensing their vast portfolio of patents. Microsoft have about 3000 patents in total but IBM file more patent applications than that in an average year. With Phelps at the helm, Microsoft now have over 5000 patent applications sitting to be reviewed in the US Patent Office. Phelps has this to say about software patents,

"I think there's a fundamental lack of understanding [in Europe] that there isn't a real difference between software and hardware. I also think there are large political forces driving this issue... Some on either side approach these issues with an almost religious fervour... Also, I can give you all kinds of software implementations that used to be in hardware. Apart from the plug in the wall, anything you used to do in hardware you can do in software. Just think about the media player that exits when you boot up your software on your machine. It looks just like any other media player - it's got fast forward and stop and pause and all that stuff. That's software. Is there a hardware version of that? Sure, any DVD player you want to go and buy. Or if you look at some laptops, there's a little button in the middle which is basically the mouse. You think that moves, but it doesn't. It's really a strain gauge that calculates where you want the cursor to go by how hard you push it and in what direction. How does it do that? Well, there's an algorithm for an x-axis and an algorithm for the y-axis - that's software. Is there a hardware implementation for that? Sure, every mouse that's practically ever been built is a hardware implementation of that.

I think people react to software as if it's an animal from another planet, and I don't think that, at the end of the day, the distinction [between software and hardware] is a very useful one."

It's an attractive argument. Why shouldn't a new invention, which involves and inventive step and has practical technical effect and is useful be patentable, even if it is purely software? A reasonable suggestion cutting through the usual religious fervour. As long as the law can be precisely couched in such a way as to avoid patenting something which involves no invention, no inventive step and is a pure software implementation of an obvious idea?

Derek Slater is getting irritated at what he calls "crummy reporting" on the P2P front. The latest piece he is annoyed about claims that Penn State University have done a deal with the new Napster service,owned by Roxio, to provide "free" music to students.

"Yes, Roxio and the RIAA are providing this service all out of the goodness of their hearts. And Penn State will not be charging their students directly or indirectly for the service. As I've said before, this is one heck of a spin machine."

Here's a criminal waste of space and a funny judge, Mr Justice William W. Bedsworth.

Apparently Cryptome's John Young has had a visit from the FBI. Somebody had reported Cryptome as a source of information that might be harmful to the US.

I sympathise with the FBI special agents, who in the post September 11th world probably had little choice but to follow up the complaint. But they're really on a hiding to nothing visiting civil liberties campaigners, who will, understandibly publicise the visit. So the agents are getting distracted by wild goose chases when they would undoubtedly themselves prefer to be getting on with effective appropriately targetted law enforcement. Limited law enforcement capacity gets stretched thinner and thinner and the real bad guys laugh all the way home from their undetected crimes, comfortable in the belief that the chances of getting caught are on an ever diminishing curve.

The Washington Post is reporting that there have been problems with new electronic voting machines at the election at Fairfax County in Virginia this week. 9 machines were removed from the voting station during the day for repair. Apparently this is against the law so the Republicans are suing. Never mind. They only spent $3.5 million on the machines.

It seems that the intellectual property enforcement directive rapporteur, Janelly Fourtou, is prepared to compromise slightly, now that even Arlene McCarthy (rapporteur of the software patents directive) thinks that article 20 covering criminal sanctions is way over the top. You can see the text of the amendments she's prepared to accept at the europarl website. Fourtou, however, remains keener than ever to ensure the directive gets implemented before the next euro elections in the summer of 2004. She seems to see the sacrifice of article 20 as a quid pro quo to get the implementation procedures on the fasttrack route.

The EFF and The Stanford Center for Internet and Society are suing Diebold for abuse of copyright over their recent cease and desist letters to people linking to online copies of their internal memos.

For T182 students looking in for the first time, Diebold are one of the three largest suppliers of electronic voting machines in the US. There has been some controversy recently about whether these machines do the job as well as they should. I have written about it periodically here but if you're interested in looking at the issue in more detail (when you have finished T182) some people who know a lot about the issues are David Dill at Stanford, Rebecca Mecuri at Bryn Mawr, Aviel D. Rubin at Johns Hopkins University and Bev Harris, author of the soon to be published book Black Box Voting: Ballot Tampering In The 21st Century.

Wal-Mart and the US Department of Defense are driving forward the wide spread implementation of RFID tags. That won't be news to regular readers.

Here's a report on a patent ruling that could throw a spanner in the works of trying to get legitimate music downloading operations in place.

"If a jury decides that SightSound has a right to enforce the patents, it could affect almost any business that sells downloadable music or video online, including the major record labels and music studios. This is increasingly important, as a number of download services emerge to offer people a legal way obtain video and music content online. "

The FCC have mandated the broadcast flag. The FCC Chairman Michael Powell's statement on the issue is here. All 5 commissioners supported the decision though two disagreed with parts of the decision.

Jack Valenti and Rupert Murdoch will be pleased. Lots of other people are not.

It seems the IPC cease and desist letter to the Guardian's director of digital publishing, Simon Waldman, over photos of Hitler in a 1938 Homes and Garden magazine was invalid. They did not own the copyright on the photos that Waldman posted on his weblog.

IPC "conceded that "after
extensive research ... there is no way of ascertaining where
copyright ownership lies after 65 years. Therefore, it is not in our
gift to either agree or withdraw use of these images and words."

For me, this prompted a mix of victory and fury. Yes, I could put
the scans back up on my site, but it was clear that they simply
hadn't made any detailed checks on copyright when I first
contacted them, and had hoped it would all go away with a
single stern email. Fortunately for me, in this internet age, such
clumsy tactics don't work. Their attempt to squash the problem
had simply amplified it."

Wired is reporting that the Aussies are doing it right with e-voting. "They chose to make the software running their system completely open to public scrutiny."

In the wake of their courtroom success in claiming infringement of their streaming patent by the porn industry, Acacia have now decided to go after higher education institutions.

"Acacia has sent Virginia and other colleges a letter making an audacious claim: that the company owns long-forgotten patents covering the use of sound and video on the Web and is entitled to 2 percent of the revenue from courses that use such technology. The patents, which expire in
2011, cover the concept behind storing and transmitting sound and video, not the technical details."

This doesn't surprise me but I'm none the less angry.

Here's a fun test of your political leanings. Apparently I lie somewhere between Nelson Mandela, the Dali Lama, Mahatma Gandhi and Jean Chretien as a slightly left leaning liberal. My friends will be amused and it could have been worse, I suppose. As long as nobody takes it too seriously...

Michael Froomkin is really concerned about the state of civil liberties in the US.

"A secret trial. A SECRET TRIAL. In the US. IN THE USA. Ok. Ok. I refuse to panic until the Supreme Court approves this. That means I have a few weeks at least.

If you had asked me two years ago, I would have said that secret trials were impossible in the USA...

The idea that the government would attempt to hold entire secret star chamber-like trials, closed to the public, trials whose very existence was a secret, is repugnant to this nations’s traditions and fundamental values. And if history teaches us anything about abuses of power, it is that secret trials are dangerous...

The government’s — successful! — attempt to inaugurate a regime of secret trials and secret detentions is a really lousy signal about the state of panic among our ruling class — and about the brittle state of our liberties. What really boggles the mind is that two courts have allowed this to happen — now only the Supreme Court stands between us and a country with secret trials into which suspects (recall - they’re innocent until proven guilty!) just vanish into the system.

Before you say ‘terrorism is different’ or ‘we’re at war now’, note that the government says they want to use this tactic in drug cases too. Worry. Really worry about this one. We’re one step closer to the day when this might not be a joke.

And in fact, the subject of this secret trial isn’t some super-ninja terrorist from beyond the deep. He’s an Algerian waiter. And he is obviously not that dangerous, since he’s been out on a $10,000 bond since March 2002."

What's got Prof Froomkin so worked up is this report in the Christian Science Monitor on the "Secret 9/11 case."

(Thanks to Eugene Volokh at the Volokh Conspiracy for the pointer to this).

Mark Cooper, Director of Research of the Consumer Federation of America and affiliated to the Center for Internet and Society at Stanford, has published a new book, Media Ownership and Democracy in the Digital Information Age. The book can be purchased in the conventional way or it can be downloaded for free under a Creative Commons Attribution-NonCommercial-ShareAlike license. A weighty tome and at 313 pages there won't be too many people reading it off the screen.

The LA Times says the new MIT music file swapping service has run into a few licensing problems. Loudeye Corp. the company supplying the service with songs didn't have the right to do so for the kind of service MIT were setting up. MIT blame the company. The company blame MIT. MIT have removed Vivendi Universal's songs and are negoitating separately with the music giant.

Siva Vaidhyanathan reports that Fox News threatened to sue Fox Entertainment because of a Simpsons parody. You can just see Rupert Murdoch gently pointing out to his underlings that he is not too keen on the idea of suing himself.

Here's an amusing barbed commentary from Ed Foster on the Diebold memos. He starts with his amended version of the first amendment:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of the speech, or of the press ... except as needed to allow trademark and copyright holders complete power to control discussions about their brands."

In response to the UK Office for National Statistics consultation exercise on "Modernising Civil Registration" FIPR has called on the government to ensure that a new electronic database of life events -- births, marriages, deaths etc. -- supports rather than reduces privacy and liberty. All very sensible as you would expect from FIPR.

Declan McCullagh tells us that the US Copyright Office have offered qualified support to Static Control in their ongoing DMCA dispute with Lexmark. Lexmark have successfully sued and got an injunction against Static Control to prevent them supplying cheaper refill cartridges for Lexmark printers. The cheaper refills apparently bypassed copy control technology built into the Lexmark versions. A good example of an OEM cornering the market in spares by building in digital fences and throwing their weight around on the anti-circumvention provisions of the DMCA - and not what the law was intended to be used for. The law already says you can bypass copy control/access measures "for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability." That is a less well known provision of the DMCA.

It remains to be seen how this opinion from the copyright office will affect the case. There are other substantive issues such as Static Control's alleged direct copyright infringement of Lexmark programs that may still swing the case Lexmark's way at the appeal.