Thursday, February 24, 2005

What's up with WIPO?

Donna's asking what's up with WIPO and urges folks to read David Tannebaum's post at Lawmeme on the subject.

World social forum

Larry Lessig's been at the World Social Forum in Brazil and has returned home profoundly impressed by what he's seen.

Open source biotechnology

Kim Weatherall wonders if open source biotechnology is really happening as claimed in this Wired article a couple of weeks ago.

Ms Weatherall also has some interesting comments on the Stevens v Sony case, "ie, the case which will decide whether mod-chipping a Sony console is a breach of the anti-circumvention laws", which I hadn't realised was before the Australian High Court at the begining of February.

Hunter S. Thompson on Security

Hunter S. Thompson on Security:

"As an afterthought, it seems hardly proper to write of life without once mentioning happiness; so we shall let the reader answer this question for himself: who is the happier man, he who has braved the storm of life and lived or he who has stayed securely on shore and merely existed?"

Academic research on patented items

Whilst in environmental thinking mode it is also worth noting that a rather oblique patent case, Merck v. Integra, came before the US Supreme Court this week which could have serious implications for the future of certain academic research. The EFF are pursuing it:

"Patent Threats Hurt Scientific Research

EFF Asks Court to Protect Academic and Competitive Studies

Washington, DC - Three consumer advocacy groups including the Electronic Frontier Foundation (EFF) asked the Supreme Court today to protect scientific researchers from patent-based legal threats. The case, Merck v. Integra, deals specifically with information researchers submitted to the Food and Drug Administration regarding a potential cure for cancer. But it raises broader questions about whether patent owners can stop academic researchers and inventors from studying patented inventions in order to research or improve upon them.

In their friend-of-the-court brief, EFF, Public Knowledge, and the Consumer Project on Technology argued that patent law allows researchers the freedom to make and use patented products for the purpose of furthering academic study. They also argued that experimentation on patented items for the purpose of creating new inventions is also allowed -- as long the patented products aren't sold by the researchers.

"Patent law was created to help spread knowledge and spur innovation," said Jason Schultz, staff attorney at EFF. "Allowing patent owners to shut down important scientific research flies in the face of that purpose."

"The Court has the opportunity here to do tremendous good for society, by making clear that scientists have always been and remain free to perform research -- and competitors to innovate -- without being subject to the threat of patent infringement litigation or the tax of patent licenses," noted Joshua Sarnoff of American University's Glushko–Samuelson Intellectual Property Law Clinic, counsel of record on the brief.

The Supreme Court will hear arguments on the case this spring, likely in April, and issue a decision by mid-summer.


Jason Schultz
Staff Attorney
Electronic Frontier Foundation"

The "Summary of Argument" on pages 2 and 3 of the amicus brief (15 and 16 of the pdf) is well worth reading.

"Congress never intended for the exclusive patent rights of "making" and "using" to apply to scientific research with or competitive evaluation of patented inventions. Such activities do notdeprive patentees of any commercial rewards to which they are entitled. Commercial competitors thus have been free to make and use patented inventions to develop improvements, but not to sell or use patented inventions commercially during the patents'terms...

Long standing legislative policy supports protecting such scientific research and competitive evaluation...

The ability to experiment free from the threat of patent infringement or from the tax of patent licences is critical to scientists and to competitors seeking to develop non-infringing or blocking improvements. A broad experimental use exception is therefore essential to furthering scientific knowledge and technological development to the benefit of humanity."

I haven't given much thought to how this kind of case would play out on this side of the Atlantic but it would certainly be an interesting thought experiment to explore.

PC lanfill tax in the US

I have some work to do today on a new Open University course in environmental decision making, so was in a receptive frame of mind when reminded by Declan McCullagh of his grumblings about the proposed "National Computer Recycling Act".

Interestingly enough Declan's like-minded free market libertarian friend, James Maule, seems to think it might be a good idea to impose a sales tax on electronic gadgets like PCs, in order to be able to pay for the processing of the consequent waste. He has a slightly more sophisticated proposal for the tax than the blanket $10 per gadget being proposed, believing that the tax should be proportionate to the amount of harmful waste likely to be generated by the item. He also says that such a tax is only justifiable, if there really is a problem with toxic waste from these devices and, like Declan, is skeptical...

"The big issue, of course, is whether there is an environmental problem. That discussion is underway. If there is to be some sort of fee, however, it ought to be designed more sensibly than the one in the proposed National Computer Recycling Act. Done properly, it could be a good thing."

Wednesday, February 23, 2005

Appeal court examine broadcast flag

A US federal Appeal Court duly held a hearing yesterday on the FCC's broadcast flag mandate. Happily for Susan Crawford some of the judges were openly hostile to the idea. In response to the challengers accusation that the FCC were acting outside their authority in mandating the flag, the FCC's lawyer said that Congress did not explicitly forbid them from doing so and they were therefore entitled. At least two of the judges didn't like that:

"You're out there in the whole world, regulating. Are washing machines next?"Judge Edwards.

"You can't regulate washing machines. You can't rule the world." Judge Sentelle

A third judge doubted whether the complainants, American Library Association, the Association of Research Libraries, the Medical Library Association, Public Knowledge and the Electronic Frontier Foundation had the legal standing to progress the case.

So perhaps the FCC do get to rule the world after all, at least until the US Congress exlicitly says they can't or someone who can negotiate the legal technicalities to making a formally recognised complaint steps up to the pulpit.

Tuesday, February 22, 2005

Ben Franklin would have blogged

Susan Crawford reckons Ben Franklin would have been a blogger and that he would have taken a decentralised networking and community building approach to Internet regulation.

My systems thinking colleagues at the Open University would be pleased to hear it. Prof. Crawford's "Shortness of Vision: Regulatory Ambition in the Digital Age" [word doc] does a nice job of applying some systems concepts to the notion of information regulation, whilst also pointing out that the broadcast flag is as important as the Grokster case. From her blog on same:

"The broadcast flag argument is coming up on February 22." [That's today folks!] "It's a crucial case. Did the FCC have jurisdiction to enter the broadcast flag order in November 2003? If it didn't, we'll need to go to Congress to discuss all this.

Like the Grokster case, the flag situation raises this question: can one industry force another to constrain new general purpose technologies in the name of copyright protection? Like the CALEA dispute (prompted by the demands of another great industry -- law enforcement), the flag represents an attempt to have high-tech innovators ask permission before innovating.

The broadcast flag isn't really about broadcast or the waving of a patriotic flag. It's about money and fear. I have high hopes that the DC Circuit will see through the FCC's incredibly broad assertions about its jurisdiction."

Abusive EULAs

Donna on abusive end user licence agreements.
In the Grokster case, IP Central report that "The Solicitor General of the U.S. has petitioned the Supreme Court for 10 minutes in which to argue on behalf of the content industries, who would cede the time from their allotment."

The odds on the movie industry winning the case have significantly shortened.

ID card database won't meet DPA standard

No2ID pointed me at a nice opinion piece in the Lawyer

"The Data Protection Act 1998 imposes a requirement on a data controller to adequately manage information security, and yet the bill does not adequately recognise these obligations.

It appears from the bill that, despite it being the Government that requires the implementation of an identity card system, it has no liability for failures in the system. It is intended to be a criminal offence for an individual not to notify the authorities of any changes of information, such as address, yet where an individual does notify the authorities of errors in information, there is no requirement that the Government 'must' correct such information, but only that it "may" correct it. What is more, the creation of a centralised identity database is akin to an electronic Doomsday and, given the Government's record on failed or flawed IT projects, the fact that the bill does not give an individual any rights to compensation where that individual's identity is misappropriated through no fault of their own is a big concern."

Monday, February 21, 2005

Singing in the Rain and Volkswagen

Have you seen the new Volkswagen ad? I saw it on one of my now sadly infrequent visits to the cinema at the weekend and didn't like it but only because I think the original is one of the greatest film sequences of all time and have been a lifetime admirer of the amazing Gene Kelly. Kelly himself would probably have enjoyed it.

I'd be really interested in the copyright clearance process the producers had to go through.

Jenkins v Clarke

Simon Jenkins was railing against the UK government's stance on civil liberties again last week.

"Whatever the instant appeal of torture to some enforcers, once systematised it is lethal to sound intelligence and due process of law. Nobody knows what to believe, nor what to do with the victims afterwards.

So Mr Clarke is about to deny British citizens their freedom on the possible say-so of an Uzbek sadist, a Syrian thug or an electrode-wielding Egyptian. A British court says he can do this provided only that a chap from MI6 is not involved — which I would have considered a safeguard. I cannot see what conceivable weight can be put on such “intelligence”. At least in Tosca’s day Scarpia was in the next room. Even assuming that Mr Clarke’s conscience has gone to sleep, what has happened to his brain?

Control orders are a deep offence to British justice. Despite being based on unreliable intelligence and “outsourced” torture, they will become entrenched, like all past “prevention of terror” laws. They will alienate the Muslim population and make martyrs of hoodlums. No court can treat their evidence as usable. As America and Germany show, this will severely compromise the bringing of real terrorists to justice."

RFID school stops

The Californian school that tagged pupils with RFID badges has given up doing so because the supplier has pulled out. That's one failed programme we can deem a complete success.

Security and the weakest link

Bruce also points to a great photograph demonstrating that security is only as effective as the weakest link and why relying on photo IDs at airports is poor security.

TSA Secure Flight

Bruce Schneier on secure Flight and his participation in its evaluation.

"Imagine for a minute that Secure
Flight is perfect. That is, we can ensure that no one can fly under a
false identity, that the watch lists have perfect identity information,
and that Secure Flight can perfectly determine if a passenger is on the
watch list: no false positives and no false negatives. Even if we could
do all that, Secure Flight wouldn't be worth it.

Secure Flight is a passive system. It waits for the bad guys to buy an
airplane ticket and try to board. If the bad guys don't fly, it's a
waste of money. If the bad guys try to blow up shopping malls instead
of airplanes, it's a waste of money.

If I had some millions of dollars to spend on terrorism security, and I
had a watch list of potential terrorists, I would spend that money
investigating those people. I would try to determine whether or not
they were a terrorism threat before they got to the airport, or even if
they had no intention of visiting an airport. I would try to prevent
their plot regardless of whether it involved airplanes. I would clear
the innocent people, and I would go after the guilty. I wouldn't build
a complex computerized infrastructure and wait until one of them
happened to wander into an airport. It just doesn't make security sense.

That's my usual metric when I think about a terrorism security measure:
Would it be more effective than taking that money and funding
intelligence, investigation, or emergency response -- things that
protect us regardless of what the terrorists are planning next. Money
spent on security measures that only work against a particular
terrorist tactic, forgetting that terrorists are adaptable, is largely

As ever, thinking sensibly about security in an uncertain world.

Napster hack leads to free downloads

Napster hack leads to free downloads - John Borland at CNet news.

Student jailed for uploading

Things have got very serious for an 18 year old university of Arizona student who has admitted uploading films onto the Internet. He's been jailed for three months, with an additional 3 years probation, 200 hours community service and around $5000 fine. The movie industry will be pleased but isn't it worth asking whether this punishment is disproportionate?

Student jailed for uploading

Things have got very serious for an 18 year old university of Arizona student who has admitted uploading films onto the Internet. He's been jailed for three months, with an additional 3 years probation, 200 hours community service and aroung $5000 fine. The movie industry will be pleased but isn't it worth asking whether this punishment is diproportionate?

David Brin on effective counterterrorism

Declan has pointed me at a terrific essay by David Brin, which in turn links to his wide ranging thoughts in the immediate aftermath of 9/11.

"Where it comes to fighting terrorism directly, my point is that aversion to casualties has always has been pushed by politicians and mass media, not commonfolk. Increased formal security is not the answer.

The answer (admittedly oversimplifying) is better doctrine.

Again, those planes were filled with adult males who could overcome fanatics armed with knives. They had been indoctrinated to be passive, but those men aboard UA93 proved that citizens can be heroes. In fact, the call would stir our hearts and make us feel brave. If done carefully and responsibly, it would make us feel like men and women... adults with a role to play in defending our tribe."

French sue Apple and Sony over drm

A French consumer group have decided to sue Apple and Sony over their drm, which it is claimed is limiting consumer choice. More power to their elbows. They might even win in France.

ID cards - Declan

Declan McCullagh did a feature last week on the coming of national ID cards in the UK (imminent) and the US (creeping).

You know my views.

Open University

It's nice to see my employer get a positive mention in the mainstream press. In OU is the solution to student IOU, the Times rightly says "The unsung Open University offers an alternative way of learning without running up debts"

"Tony Blair may barely have noticed that on Wednesday he dropped in on the campus of the Open University. He heard a little about the Huygens space project, which last month made the most distant landing ever of a spacecraft, on Saturn’s moon, Titan. He confided that he was “learning so much” from reading a book on the planets to his son, which says either a great deal about the intelligence of four-year-old Leo or the lack of knowledge of his father. Then it was blast-off time again and Mr Blair took off for the television studio.

So the opportunity for the Prime Minister to laud the achievements of a remarkable institution was wasted. And since the Open University is either too modest, or unskilled in the black arts of public relations, to ensure that its success is loudly hailed, it just saw him off the premises and got back to its business of providing education for anyone who wants it.

Had the OU been more politically and media savvy, it might have taken the opportunity of Mr Blair’s visit to point out that it had just that day finally netted its biggest charitable donation so far and would be putting all £2.75 million of it to work in the cause of furthering education in Africa. That ought to have ensured the OU some plaudits, as Mr Blair battles against Gordon Brown to see who can be the greater friend of that poverty-ridden continent. But the Prime Minister had left before the successful fundraisers even knew he would be arriving...

On the Government’s assessments, the standard of teaching is predominantly classed as excellent and in The Sunday Times’s last set of university league tables the OU ranked fifth, ahead of Oxford. Yet while other university vice-chancellors bemoan their finances and Oxbridge deficits deepen, the OU balances its books. It finished the year to last July with a £4 million surplus, having bolstered its grant income of £174 million with student fees and some outside earnings.

As the convoluted debate on top-up fees raged, the OU continued charging its modest fees to students, providing loans to help them to pay where necessary. The average fees are just £440 a year and a first degree, consisting of six modules, might cost around £3,000. Since most students are earning while they are learning, the money rarely poses a problem.

So why is the Government, with its proclaimed purpose of driving half of all young people to university, not pushing more of them in the direction of the OU instead of the Student Loan Company?"