Friday, December 10, 2004


Marxist-Lessigism By Dan Hunter at Legal Affairs.

Ellison on speech

Some libertarians and civil liberties advocates won't be too impressed at Oracle CEO Larry Ellison's perspective on China's filtering of Western news services:

"The Chinese government has the right to do it. It's a sovereign country."

What you need to recognize, however, is that Mr Ellison is not in the business of protecting civil rights. He's in the business of making money. It's what businesses do. Their directors have a fiduciary duty to maximise the return to shareholders. Their bottom line, therefore, is a focus on the bottom line, so to speak.

Besides, he's right, the Chinese government do have a sovereign, political, legal and (some would argue) moral right to filter Internet content in their own jurisdiction. Whether you agree with that filtering and the extent of it are other, more difficult questions.

Trustworthy Internet

Former CIA chief, George J. Tenet, has said that the "Wild West" that is the Internet "must give way to governance and control" because it "represents a potential Achilles' heel for our financial stability and physical security if the networks we are creating are not protected," and terrorists are "undoubtedly mapping vulnerabilities and weaknesses in our telecommunications networks." He is concerned that key industries and physical infrastructure are open to attack through their networks. This article parphrases him as saying that access to the World Wide Web should be restricted to those who prove they can be trusted and take security seriously. I've no idea whether he did say that, as the reporter admits that the press were excluded from Mr Tenet's talk, at his request. So presumably the direct quotes in the article came from a source who was allowed to attend.

Mr Tenet is right in saying that networks would be more secure if only a limited number of trusted people were allowed to use them. They'd also be more secure if no one could use them; just like aeroplanes would be safer if we grounded them for good, as was done in the immediate aftermath of the 9/11 tragedies; and roads would be safer if we banned cars and other motorised vehicles.

Security is a trade off and the question is how much (lifestyle, money, time, convenience, services, freedom, access to gadgets etc) are we prepared to trade off to secure our society against the dangerous , agressive, destructive behaviour of the kind of people Mr Tenet was paid for so long to tackle; and how effective are those trade offs in actually securing us against that behaviour?

I guess it is also potentially instructive that one of the trusted attendees at the talk still leaked comments to the press, so even locked down, trusted person only access networks will have their vunerabilities...

The Future of Net Crime

Thanks to Peter Sommer at FIPR for his pointers to a new Home Office report on the future of Internet crime.

Euractv says EU members have been slow to implement the framework for electronic commumications. Belgium, France, Greece, Luxembourg and Spain are highlighted.

The EU Telecommunications Council have decided to fund a "Safer Internet Plus programme" to "empower" (I hate that word!) parents and teachers to protect children. It seems the funding is to go to hotlines (like the Internet Watch Foundation presumably), filter software (called censorware by critics), self regulation and awareness raising.

Bruce Schneier has some sound advice, as you would expect, on safe computing.

"I'm stuck using Microsoft Windows and Office, but I use Opera for Web browsing and Eudora for e-mail. I use Windows Update to automatically get patches and install other patches when I hear about them. My antivirus software updates itself regularly. I keep my computer relatively clean and delete applications that I don't need. I'm diligent about backing up my data and about storing data files that are no longer needed offline.

I'm suspicious to the point of near-paranoia about e-mail attachments and Web sites. I delete cookies and spyware. I watch URLs to make sure I know where I am, and I don't trust unsolicited e-mails. I don't care about low-security passwords, but try to have good passwords for accounts that involve money. I still don't do Internet banking. I have my firewall set to deny all incoming connections. And I turn my computer off when I'm not using it.

That's basically it. Really, it's not that hard. The hardest part is developing an intuition about e-mail and Web sites. But that just takes experience."

And if you'd like a little more detail try the Open University's 10 week protect yourself from cyber-vandalism course, T187, written by my colleagues Dave Phillips and John Naughton.


Spyblog is a spin-off blog from the civil liberties website Watching Them Watching Us, a "UK Public CCTV Surveillance Regulation Campaign." They are bluntly critical of government, corporations and the general public and our collective lack of attention to and carelessness in the face of what they perceive to be a general erosion of civil rights. If you log onto their site, the first message you get is one indicating how much information they have gathered about you, just by virtue of the fact that you've called up their website. In my case it was "You seem to be from a UK academic institution..." etc.

There is some hard hitting stuff here and those on the receiving end of the criticism, (if they're aware of it), could be made to feel more than a little uncomfortable about it.

Their critique of the security measures deployed at Hammersmith Bus station will almost certainly not go down too well with the people responsible.

Wednesday, December 08, 2004

Aussies, copyright and US Free Trade Agreement

IF you'd like some insight into some of the dark room politics behind the changes to Australian copyright laws associated with the Australian government's free trade agreement with the US, IP academic Kim Weatherall has some details and she also has some serious concerns about the outcomes:

"when you play a pirate DVD, you are infringing copyright. This was new, of course. Usually, the purchasers of infringing copies are not infringers themselves. Suddenly, all kinds of consumers caught by the Copyright Act, when they weren't before. The Senate Select Committee was worried, saying (at para 3.200):

"[The Committee is] particularly concerned about the 'exception to the exception' anomaly which could lead to end users of infringing materials becoming infringers in their own right. This is a significant, perhaps unintentional, extension to the scope of copyright law in Australia. The Committee understands that removal of proposed subsections 43B(2) and 111B(2) would not be prevented by the AUSFTA."

They were rightly worried. The inclusion of "temporary copies" means that all the copies made in a Sony Playstation Console, or DVD player, are now within the exclusive rights of the copyright owner. The "exception to the exception" means that copyright owners can argue that playing an unauthorised game, or unauthorised copy of a movie, is an infringement. And that is important because that is exactly what has been argued in the Sony v Stevens litigation. If playing unauthorised games leads to infringements, then technological protection measures (TPMs) which prevent the playing of unauthorised games are preventing infringement. And suddenly the anti-circumvention laws - the laws that make it illegal to 'break' TPMs - have a much broader reach.

With the new Copyright Amendment Bill, this concern has been ignored. In fact, the 'exception to the exception' has been broadened. In other words, even more things will now be infringements than were before - despite what the Senate Select Committee said...

...OK. Now, I could be wrong here, but doesn't the text go further than that? Doesn't the text mean that the Government is proposing to strengthen the hand of copyright owners in preventing parallel importation, contrary to the whole policy of the government for the last few years? As I read it (please, correct me if I'm wrong), this means that if A makes an authorised copy of copyright work X in Indonesia, but B owns the copyright in X in Australia, and I buy the copy of X in Indonesia from A, and bring it to Australia, and play it in my machine, and a temporary copy is made, I'm infringing. Because if A had made the copy in Australia, they would have been infringing. Looks like strengthening the ability of copyright owners to engage in market segmentation to me. And, if I import copies from A into Australia (even if that is allowed under parallel importation law), I might be authorising infringement because all the temporary copies made by my customers are infringements."

Software patents delayed

The EU Council are delaying the decision on the software patents directive until 2005.

Communications and Copyright Policies - Tim Wu

Tim Wu has some simple conventional things to say about communications and copyright policy making. Firstly copyright law should act as an incentive scheme for authors and creators not as an innovation barrier to new technology.

Secondly, communications infrastructure regulators like the Federal Communications Commission, should forget about trying to regulate content and get back to their real job of making sure the government facilitates (or at least stays out of the way) innovations and development of communications infrastructure!

"Copyright law should limit itself to promoting authorship, and communications law should forget about content regulation. That may, again, not sound very radical, but the fact is that today the two areas of law moonlight for each other in fairly shameful ways. Copyright is used to do things that would be embarrassing to propose in communications policy circles. Meanwhile, the FCC is effectively implementing copyright laws that couldn’t get through Congress.

Government accountability is more than Congressional testimony. When laws hide their dirty laundry in other legal regimes, it becomes hard, even for legal experts, to keep track of what the government is doing. The crossover of Copyright and Communications policy is a sterling example."

He also has some sensible advice on the ever widening problem of vested interests and their supporters taking simplistic, polarised and diametrically stances in important public debates:

"I think things are even worse than Cass Sunstein predicted. What Cass wrote about in the 1990s was the basic problem of debate polarization. But I don’t think he expected that even facts themselves would come up for grabs, leaving each side living in fully constructed parallel universes of disinformation.

I don’t blame the blogs. Here is the problem: we are living with the unexpected consequences of low-cost information dissemination, or “cheap speech.” Cheapness is generally good, but it also creates strange consequences. Cheap corn, for example, makes us fat. Cheap drugs, like crack cocaine, can destroy neighborhoods. And cheap information is making us stupid.

As a society, the only answer is likely to be painful: an information diet. Consider the food analogy: in another age, food was scarce, and so everyone ate anything they could get their hands on. Today that approach will make you look like Andre the Giant. We have learned, albeit imperfectly, to eat more carefully. We similarly need to learn to regulate our information intake, or we’ll end up with brains that look like CNN Crossfire."

A balanced diet in information. We could all do with that.

DVDCCA sue Kaleidescape

The DVD Content Control Association have decided to sue a company that makes DVD jukeboxes capable of storing the contents of hundreds of DVDs. Instead of spending money on lawyers trying to outlaw this kind of home entertainment kit why aren't they spending money on filling an obvious gap in the market? At $27000 a shot these boxes are not exactly available to the average consumer but you can see that many folk would be pleased to get hold of one for a reasonable price. Think of the value of being able to store all your DVDs to avoid having to search for and slot in the relevant disc each time, not to mention avoiding having to repeatedly replace (particularly kids') DVDs that scratch easily and don't take much wear and tear.

Tuesday, December 07, 2004

Web services patent auction tell us that a bankrupt company has sold off 39 web services patents for $15.5 million as part of the process of liquidating its remaining assets.

"The patents cover a set of key technical protocols known as Web services, a popular method for exchanging business documents over the Internet. The protocols are in wide use today; Microsoft, IBM and other software companies both large and small have incorporated them into their programs.

The winning bidder was a company called JGR Acquisitions. An attorney representing JGR was mum about his client, dodging reporters' questions as he rushed out of the court room at the close of the auction."

Monday, December 06, 2004

EU Parliament Agree to Biometric Passports

The EU parliament's official response to the Council of Ministers pressure to introduce biometrics to passports:

Enhanced safeguards for "biometric" passports

Report on the Commission proposal for a Council regulation on standards for security features and biometrics in EU citizens' passports
(COM(2004)0116 – C5-0101/2004 – 2004/0039(CNS))
Doc.: A6-0028/2004
Procedure: Consultation
Debate: 01.12.2004
Vote: 02.12.2004


The European Parliament agrees with the introduction of passports containing a facial image, since this biometric element will make it very difficult to falsify passports. The biometric data will ensure that a person presenting a passport is in fact the person to whom the passport was originally issued. However, the EP believes that the implementation of biometric elements must not infringe upon privacy and data protection rights. This is why the EP opposes the setting up of a central database of European Union passports and travel documents containing all EU passport holders' biometric and other data. Such a database would increase the risk of abuse and function creep. The non binding resolution was adopted with 471 votes in favour to 118 against and 6 abstentions.

Only the authorities of the Member States that are competent for reading, storing, modifying and erasing the biometric data may have access to it. Parliament also explicitly states the purpose of the regulation: the biometric feature in passports shall be used only for verifying the authenticity of the document and the identity of the passport holder.

Parliament wants the regulation to come into effect only if and when the national data protection authorities have adequate investigative powers and resources to see to the correct implementation of the regulation's data protection requirements. In relation to this, MEPs want the deadline for implementing the regulation to be extended to 18 months (instead of one year) after the approval of the technical requirements for the passports at the latest. This means that the EU would expect the USA to extend the deadline beyond 26 October 2005 for holding a biometric passport for visa free travel.

Under the Commission proposal, the introduction of a facial image in passports will be obligatory, while the Member States might opt for the introduction of finger prints. After the adoption of the Carlos COELHO (EPP-ED, PT) report in committee on 25 October, the Council decided to make the introduction of finger prints in passports obligatory as well. The European Parliament however, voted today on the original Commission proposal and, by doing so, agreed with the Commission position that only the facial image should be obligatory.

This Regulation will apply to all Member States except the UK and Ireland. Denmark will decide within a period of six months after the Council has adopted this Regulation whether it will transpose it into its national law.


An important driving force in the development of the biometric passport was provided by various US decisions, notably concerning the visa waiver programme (VWP). Under this programme, the nationals of certain states - among which the old EU Member States (except Greece) and Slovenia - do not need a visa upon entering the USA. But, not later than October 26, 2005, they will have to have a biometric passport. Each country that is designated to participate in the VWP, must certify to the USA that it has a program to issue to its nationals machine-readable passports that are tamper-resistant and incorporate biometric and document authentication identifiers.

Press enquiries:
Danny de Paepe
(Strasbourg) tel.(33-3) 881 73605
(Brussels) tel.(32-2) 28 42531
e-mail :

Marvel sue online game operators

Fred Von Lohmann is a bit put out that Marvel Enterprises Inc. have decided to sue NCSoft Corp. and Cryptic Studios, the operators of an online game called "City of Heroes."

"Marvel's complaint is premised on the notion that NCSoft and Cryptic should be held responsible for the infringing activities of the players in the game. According to the complaint, the players are infringing Marvel's copyrights and trademarks by creating characters that are recognizable copies of Marvel characters, including Wolverine and the Incredible Hulk.

Yes, you read that right -- Marvel's claim is based on the idea that private individuals who pretend to be Wolverine for fun in a video game are breaking the law. Since when is it illegal to pretend to be your favorite superhero? Should parents be policing their kids, lest they be caught "pretending without a license"? Were all those drawings of the X-Men on grammar school notebooks evidence of infringement? And what about all those homemade superhero Halloween costumes...

Why are everyday expressive activities in the real world -- such as joining some neighborhood kids in the backyard for a bit of superhero role playing -- suddenly exposed to the depredations of copyright and trademark lawyers when they move online?

Marvel's assertion of copyright and trademark rights over the noncommercial expressive activities of its fans is both unprecedented and unnecessary. The fundamental justification for copyright is that we must tolerate a limited statutory monopoly on expression in order to secure an adequate incentive for the creative industries. That's an adequate incentive, not the maximum conceivable incentive. Trademark law, meanwhile, is meant to protect the public from confusion in the marketplace for products and services. Measured by these yardsticks, Marvel's claims fall short. Does anyone believe that Marvel will fire its authors and close up shop if it can't prevent little Johnny from pretending to be Wolverine online? And no one is going to be confused into buying something by mistake when they run into another player in-game who has adopted the green skin and purple shorts of the Hulk.

On the other hand, if the court accepts Marvel's notion that playing Wolverine or the Incredible Hulk online is unlawful, you can expect a chill to spread through all the MMO universes. Rights holders will begin insisting that MMO operators police their games for unauthorized elements -- robots that look too much like C3PO, uniforms that look too much like Captain Kirk's, haircuts that mimic Bart Simpson's, in-game face paint that evokes KISS, or blonde vampire slayers named Buffy."

Fred does work for the EFF and as such will have some pretty strongly held views on the notion of over expansion of intellectual property but he makes a strong argument here. Why are everyday activities, such as reading a book, exposed to apparently daft complications e.g. restrictive licences saying they "cannot be read aloud", just because that book is published in an ebook form?

Harry Potter, Armoured Car DRM and the Lawyers

The IEEE Consumer Electronics have made a transcript of my keynote address to their international conference available on their website. The talk was entitled "Harry Potter, Armoured Car DRM and the Lawyers" (or linked as "IEEE talk.doc (92.0 kBytes" on the website). It covered some of the possible implications for the consumer electronics industry of developments in intellectual property law and digital technologies. The introduction gives a flavour:

"About 5 years ago I read about the music industry suing to get Diamond Multimedia’s Rio MP3 player outlawed. I was sufficiently irritated that somebody should want to kill off a neat bit of technology that I decided to look into the situation a bit more. In the end the Rio survived the assault but only on a legal technicality in the appeal court.

So the Rio case triggered my descent into a surreal nether land of lawyers and strange ideas. And in this strange lawyer-land one of the strangest outposts is an area with the eye-glazing title of intellectual property. Intellectual property covers things like copyrights and patents.

Lawyers just don’t see the world like the rest of us. A copyright lawyer thinks nothing of suing somebody for infringing the copyright in silence. Seriously. In 2002 Mike Batt, a music producer, found himself threatened with legal action by the estate of the late John Cage, for infringing the copyright in Cage’s composition 4 minutes and 33 seconds of silence. If you haven’t heard of John Cage or his silence, the Musical Score reads on an otherwise blank page:

“4 minutes 33 seconds silence for any instrument or combination of instruments”

Batt had included one minutes silence in a CD by a music group called the Planets.

Leaving aside the artistic merit or otherwise of the Cage piece and the sense of someone who would fork out the £4.50 or so that the score retails at, as Batt’s mother asked him - what part of the silence did they claim you were infringing?

Sounds funny except that the case involved substantial lawyers’ fees and eventually got settled out of court for a 5 figure sum. Possibly £10s of thousands.

Following the settlement Batt decided to register the copyrights in every period of silence between 1 second and 10 minutes, except for 4m 33s. Batt now figures he’s got Cage’s estate caged in - he’s threatened to sue anyone performing Cage’s work who overruns or underruns the 4m 33s..."

and so it continues with stories of dangerous monks, people trying to cash in on J.K Rowling's success and strange anomalies created by the state of the law and the current stage of evolution of the technologies.

The Yes Men, The BBC and Bhopal

The Yes Men managed to kid the BBC on Friday into believing they were representatives of Dow Chemicals and announced, from a Paris studio, that the company would be ploughing $12 billion into cleaning up the toxic waste and compensating victims of the Bhopal disaster in India 20 years ago. The Yes Men fake

"spokesperson appears live on the BBC World Service in front of the Eiffel Tower. He is ecstatic to make the announcement: Dow will accept full responsibility for the Bhopal disaster, and has a $12 billion dollar plan to compensate the victims and remediate the site. They will also push for the extradition to India of Warren Anderson, former Union Carbide CEO, who fled India following his arrest 20 years ago on multiple homicide charges.

When it's over, the studio technician is happy about what she has heard. "What a nice thing to announce," she says.

"I wouldn't work for Dow if I didn't believe in it," replies Andy matter-of-factly.

We expect the story to be retracted immediately, but Dow takes two hours to notice that alas and alack, it's done the right thing. The full interview therefore runs twice, and for two hours the story is the top item on After Dow notes emphatically that it is not in fact doing the right thing, the retraction remains the top Google story for the rest of the day.

Back at Andy's apartment, we help Dow express itself better by mailing out a more formal retraction: "Dow will NOT commit ANY funds to compensate and treat 120,000 Bhopal residents who require lifelong care.... Dow will NOT remediate (clean up) the Bhopal plant site.... Dow's sole and unique responsibility is to its shareholders, and Dow CANNOT do anything that goes against its bottom line unless forced to by law." For a while, this—as reprinted in something called "Men's News Daily"—becomes the top story on

"Whatever be the circumstances under which the news was aired, we will get $12 billion from Dow sooner than later," one Bhopali activist is quoted as saying. But the "false hope" question does come up in some articles. Much as we try to convince ourselves it was worth it, we cannot get rid of the nagging doubt. Did we deeply upset many Bhopalis? If so, we want to apologize. We were trying to show that another world is possible....

Throughout the day, we are deluged with email, almost all of it positive. Later, the BBC calls again: they want us back at the studio. Yeah, right! No, really—they want us on for another show, to talk about what has happened. Against our better judgment we go—and arrive to find four smiling staffers. "Where are the cops?" Andy asks, and the staffers actually laugh.

Another interview on Channel 4, and the day is finally over. Now all we can do is wait to see how it all pans out. Will our fondest hopes be met—will Dow be forced to concede? Or will the people of Bhopal have to wait twenty more years?

Visit and help them keep the pressure on Dow."

Clever but hopefully, as they note, they did not create any false hope.

Sunday, December 05, 2004

Software patents, the WMD of IP?

Donna Wentworth, at Copyfight, points to some interesting perspectives on software patents.

Professor Karl-Friedrich Lenz also has some advice for advocates opposed to intellectual property expansion, regarding being on the losing side in respect of the usual public rhethoric:

"Those working for the inflation of intellectual monopoly rights are using colorful rhetoric means. For example words as "pirate", "stealing", "Boston strangler", "dagger in the heart of the DMCA" etc.

So how can the other side fight back? I have a few suggestions.

1. "Enemy of Freedom"

Intellectual monopoly (IM) rights like patents, copyrights, trademarks all give the owner an exclusive right to use. This means everyone else's freedom is reduced. This in turn means that those working for stronger IM are opposed to everyone else's freedom, so they are enemies of freedom.

2. "Great Mastermind of Greed"

The point of this rhetoric figure is the alliteration. This might be used as a honorary title for those individuals who are working most efficiently for the enemies of freedom. Maybe someone could sponsor a yearly "mastermind award".

Why greed? Well, of course, people who create great ideas should be rewarded. Authors, musicians, inventors should get paid. But in unlimited quantity? And with most of the profit directed to publishers? The word "greed" may be defined as "excessive or reprehensible acquisitiveness". While the opinions about "reprehensible" might differ, there sure is much excessive acquisition based on IM rights.

3. "Slave Trader"

This is the counterpunch to "pirate". "Piracy" in the original meaning of the word is "an act of robbery on the high seas". This is a serious and violent crime. Copyright or patent violations are illegal, but they are obviously much less serious than real piracy. There is a difference between a kid trading illegal files and a bank robber. So this rhetorical figure serves the purpose to fool the listener..."

and so on. Worth a read.