It seems that the vote in the French parliament to legalise the private copying of music via P2P file sharing networks happened close to midnight when there were not many members of the House in attendance.
"The French vote needs to go through more steps to become law. It can be overturned if it is debated again and voted down in the lower house. It also needs a vote from the upper house, or the Senate.
The amendment, which is attached to a bill on intellectual property rights, states that ``authors cannot forbid the reproduction of works that are made on any format from an online communications service when they are intended to be used privately'' and not for commercial use."
So it's unlikely to become law.
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Friday, December 23, 2005
Have France just legalised P2P music downloading?
An AP report is suggesting that France has legalised music downloading during their efforts to implement the EU copuyright directive. I expect we'll be hearing more about this.
Diebold withdraws from NC bidding process
Following their loss in court, evote machine vendor, Diebold, threatened to withdraw from the bidding process for electronic voting machines in North Carolina. Then the North Carolina Board of Elections agreed to certify Diebold as an approved supplier anyway, despite the companies insistence that it would not hand over the details of how their machines worked. Now Diebold have withdrawn from the bidding process.
"At various stages of this fight, both Diebold and the Board of Elections forcefully and repeatedly argued that voters have no direct interest in election integrity. Instead, the voting equipment certification process – one that merely selects the equipment on which voters will be forced to cast their vote – should be left to the “real” interested parties.
Such myopic sensibilities are not only absurd but dangerous. Too many (though certainly not all) election officials across the country treat the certification process as if the vendors were their clients, deserving of favors and rule bending. Voters – the only constituency that matters in this process – are too often treated like ill-mannered party-crashers when they try to ensure that their interests are being protected."
"At various stages of this fight, both Diebold and the Board of Elections forcefully and repeatedly argued that voters have no direct interest in election integrity. Instead, the voting equipment certification process – one that merely selects the equipment on which voters will be forced to cast their vote – should be left to the “real” interested parties.
Such myopic sensibilities are not only absurd but dangerous. Too many (though certainly not all) election officials across the country treat the certification process as if the vendors were their clients, deserving of favors and rule bending. Voters – the only constituency that matters in this process – are too often treated like ill-mannered party-crashers when they try to ensure that their interests are being protected."
Mobile phone tacking
Mark Rasch has been astounded by the arguments of government lawyers in their recent unsuccessful attempts to get a court to allow law enforcement tracking of suspects through their cell phones:
"the government claimed (with a straight face, no less) that as soon as the cell towers in question determined your location and recorded this fact, these were now "historical" records subject to the lower standard. Thus, according to the government, there is no such thing as "real time" data or even data "in transmission."
As a technical matter, this is likely true. Indeed, I have argued that there is no such thing as interception of packets "in transmission." The packets have to be stopped, copied, and reassembled to be read. Nevertheless, the law makes a distinction between historical data and real time data. That the government would seek to extinguish this distinction in this case does not bode well for the government's position in other cases. The government could then argue that it could listen in on your VOIP calls with nothing more than a subpoena (for which no probable cause is required) because all it is doing is looking at "historical" packets - albeit merely hundredths of a second in the past. This is clearly the opposite of the delicate balance Congress sought to strike. Thus, it appears that the government is seeking to convert all interceptions into seizures of "historical" data, and adopt the lower standards for such data."
"the government claimed (with a straight face, no less) that as soon as the cell towers in question determined your location and recorded this fact, these were now "historical" records subject to the lower standard. Thus, according to the government, there is no such thing as "real time" data or even data "in transmission."
As a technical matter, this is likely true. Indeed, I have argued that there is no such thing as interception of packets "in transmission." The packets have to be stopped, copied, and reassembled to be read. Nevertheless, the law makes a distinction between historical data and real time data. That the government would seek to extinguish this distinction in this case does not bode well for the government's position in other cases. The government could then argue that it could listen in on your VOIP calls with nothing more than a subpoena (for which no probable cause is required) because all it is doing is looking at "historical" packets - albeit merely hundredths of a second in the past. This is clearly the opposite of the delicate balance Congress sought to strike. Thus, it appears that the government is seeking to convert all interceptions into seizures of "historical" data, and adopt the lower standards for such data."
Thursday, December 22, 2005
Ukraine make open access a national priority
The Ukrainian parliament have made open access a national priority, according to Peter Suber. Good for them.
Reagan lawyer critical of Bush
From Ian Brown, Ronald Reagan's associate deputy attorney general Bruce Fein has been critical of George Bush on the domestic spying front.
"President Bush presents a clear and present danger to the rule of law. He cannot be trusted to conduct the war against global terrorism with a decent respect for civil liberties and checks against executive abuses. Congress should swiftly enact a code that would require Mr. Bush to obtain legislative consent for every counterterrorism measure that would materially impair individual freedoms."
That's strong language from someone who should be a natural Bush supporter.
"President Bush presents a clear and present danger to the rule of law. He cannot be trusted to conduct the war against global terrorism with a decent respect for civil liberties and checks against executive abuses. Congress should swiftly enact a code that would require Mr. Bush to obtain legislative consent for every counterterrorism measure that would materially impair individual freedoms."
That's strong language from someone who should be a natural Bush supporter.
Posner on surveillance of US citizens
Judge Richard Posner has weighed into the debate about the surveillance of US citizens with an opinion piece in the Washington Post.
"The collection, mainly through electronic means, of vast amounts of personal data is said to invade privacy. But machine collection and processing of data cannot, as such, invade privacy. Because of their volume, the data are first sifted by computers, which search for names, addresses, phone numbers, etc., that may have intelligence value. This initial sifting, far from invading privacy (a computer is not a sentient being), keeps most private data from being read by any intelligence officer.
The data that make the cut are those that contain clues to possible threats to national security. The only valid ground for forbidding human inspection of such data is fear that they might be used to blackmail or otherwise intimidate the administration's political enemies."
Judge Posner is a man of outstanding intellect and someone I have the highest regard for but he is making a very big assumption here i.e. that the system is so good that the data that get filtered through for human inspection are those that contain clues to possible threats to national security. We know that software filters are terrible.
To the degree that he goes on to argue that the US might need a domestic spy agency like MI5, he may well have a point but it is disappointing to see the judge subscribing to the myth of the magic computer system.
That's the thing about what I'm calling "digital decision making" in my book - when making decisions about regulation and deployment of technology, even smart people make huge, unsustainable jumps in faith in the ability of that technology [which they don't understand] to deliver the solution to complex and often vaguely specified problems (which are more appropriately described as messes), like terrorism. Of course it's more common to say that it can "form part of the solution" but neither stance is defensible. Computers only do what they are programmed to do. If you program garbage in, you'll get garbage out. Justifying the collection of vasts amounts of personal data on everyone, on the basis that a computer system will magically sift that data and spit out clues that will lead to the bad guys, doesn't wash, at least with the technology at its current stage of development.
I'm not sure the kind of clue generating system that Judge Posner seems to assume is currently in operation will ever come about but if it does, that's when you can start getting into a substantive debate regarding the specific point in the data processing that personal privacy might be breached. As always with complex technology, though, the devil will be in the details.
"The collection, mainly through electronic means, of vast amounts of personal data is said to invade privacy. But machine collection and processing of data cannot, as such, invade privacy. Because of their volume, the data are first sifted by computers, which search for names, addresses, phone numbers, etc., that may have intelligence value. This initial sifting, far from invading privacy (a computer is not a sentient being), keeps most private data from being read by any intelligence officer.
The data that make the cut are those that contain clues to possible threats to national security. The only valid ground for forbidding human inspection of such data is fear that they might be used to blackmail or otherwise intimidate the administration's political enemies."
Judge Posner is a man of outstanding intellect and someone I have the highest regard for but he is making a very big assumption here i.e. that the system is so good that the data that get filtered through for human inspection are those that contain clues to possible threats to national security. We know that software filters are terrible.
To the degree that he goes on to argue that the US might need a domestic spy agency like MI5, he may well have a point but it is disappointing to see the judge subscribing to the myth of the magic computer system.
That's the thing about what I'm calling "digital decision making" in my book - when making decisions about regulation and deployment of technology, even smart people make huge, unsustainable jumps in faith in the ability of that technology [which they don't understand] to deliver the solution to complex and often vaguely specified problems (which are more appropriately described as messes), like terrorism. Of course it's more common to say that it can "form part of the solution" but neither stance is defensible. Computers only do what they are programmed to do. If you program garbage in, you'll get garbage out. Justifying the collection of vasts amounts of personal data on everyone, on the basis that a computer system will magically sift that data and spit out clues that will lead to the bad guys, doesn't wash, at least with the technology at its current stage of development.
I'm not sure the kind of clue generating system that Judge Posner seems to assume is currently in operation will ever come about but if it does, that's when you can start getting into a substantive debate regarding the specific point in the data processing that personal privacy might be breached. As always with complex technology, though, the devil will be in the details.
ANPR network to cover UK
Two stories of interest in the Independent this morning. The headline on the front page, accompanied by a large picture of a fuzzy iris is:
You Are Being Watched
And on page two,
Surveillance UK: why this revolution is only the start
They cover the government's plans to turn the national network of CCTV cameras into a national automated number plate recognition network, which will record the whereabouts of every single car on the roads 24/7. No doubt the data will be stored for a number of years (the precise number as yet undetermined) and can be fished for patterns at will. I'm not going to even start on the consequences of false positives and false negatives.
Surprisingly only one sentence in the latter story really irritated me:
"Although the problems of facial recognition by computer are far more formidable than for car number plates, experts believe it is only a matter of time before machines can reliably pull a face out of a crowd of moving people."
Face recognition systems are nowhere near reliably pulling "a face out of a crowd of moving people" and don't be surprised if those so-called "experts" just happen to be the people selling face recognition systems.
As to the £24 million the government are going to spend on ANPR equipment next year, could it be used more effectively on other police resources? Probably. Will it be enough to get the system working nationwide. Almost certainly not.
You Are Being Watched
And on page two,
Surveillance UK: why this revolution is only the start
They cover the government's plans to turn the national network of CCTV cameras into a national automated number plate recognition network, which will record the whereabouts of every single car on the roads 24/7. No doubt the data will be stored for a number of years (the precise number as yet undetermined) and can be fished for patterns at will. I'm not going to even start on the consequences of false positives and false negatives.
Surprisingly only one sentence in the latter story really irritated me:
"Although the problems of facial recognition by computer are far more formidable than for car number plates, experts believe it is only a matter of time before machines can reliably pull a face out of a crowd of moving people."
Face recognition systems are nowhere near reliably pulling "a face out of a crowd of moving people" and don't be surprised if those so-called "experts" just happen to be the people selling face recognition systems.
As to the £24 million the government are going to spend on ANPR equipment next year, could it be used more effectively on other police resources? Probably. Will it be enough to get the system working nationwide. Almost certainly not.
Wednesday, December 21, 2005
Schneier on unchecked presidential power
Bruce Schneier is seriously critical of president Bush in an opinion piece at the Star Tribune.
"This is, fundamentally, why this issue crossed political lines in Congress. If the president can ignore laws regulating surveillance and wiretapping, why is Congress bothering to debate reauthorizing certain provisions of the Patriot Act? Any debate over laws is predicated on the belief that the executive branch will follow the law.
This is not a partisan issue between Democrats and Republicans; it's a president unilaterally overriding the Fourth Amendment, Congress and the Supreme Court. Unchecked presidential power has nothing to do with how much you either love or hate George W. Bush. You have to imagine this power in the hands of the person you most don't want to see as president, whether it be Dick Cheney or Hillary Rodham Clinton, Michael Moore or Ann Coulter."
"This is, fundamentally, why this issue crossed political lines in Congress. If the president can ignore laws regulating surveillance and wiretapping, why is Congress bothering to debate reauthorizing certain provisions of the Patriot Act? Any debate over laws is predicated on the belief that the executive branch will follow the law.
This is not a partisan issue between Democrats and Republicans; it's a president unilaterally overriding the Fourth Amendment, Congress and the Supreme Court. Unchecked presidential power has nothing to do with how much you either love or hate George W. Bush. You have to imagine this power in the hands of the person you most don't want to see as president, whether it be Dick Cheney or Hillary Rodham Clinton, Michael Moore or Ann Coulter."
Sony and Us computer fraud regulations
Ed Felten continues his insights on the Sony drm story with a consideration of whether the company may have breached US criminal law, in particular, the "Computer Fraud and Abuse Act (CFAA), which is the primary Federal law banning computer intrusions and malware."
Recommended.
Recommended.
The view from inside New Labour Whitehall
William Heath is concerned at the New Labour meme, "We're from the government and we're going to help you" or, put more bluntly:
"The proponents are very articulate...
This is one half of the discussion that isn't taking place anywhere I can see...
I find class-based arguments strikingly unattractive...
I think the notion that human dignity & rights are the exclusive fixation of some middle-class wafflers is one to which history wil be unkind.
Unintrusive state services matter to everyone...
Should we be surprised if the people far-sighted enough to be concerned about the long-term implications of the complicated cross-fertilisation of technology and the work of bureaucracy turn out to be educated people professionally active in IT and trying to apply values to what they do? No. The minicab driver is too busy just now. But he'll care about it when it hits him...
We should examine longer-term the idea that bureaucratic intrusion is offensive only to an introspective group of wafflers and IT suppliers and is of no concern to "real people"."
New Labour was elected on a manifesto that promised personalised services. We're damn well going to deliver personalised services. We're not going to listen to a bunch of unrepresentative whiners. Sorry, but the human dignity implications of e-government were a complete non-issue last election. We can see a bunch of middle-class wafflers who share an irrelevant obsesion with privacy with a few IT suppliers. It's self-referential and introverted, so we're quite entitled to be robustly dismissive. They only ever talk to themselves so they're just not used to trenchant arguments based on reality. Why the hell should we pay any attention to the likes of Kim Cameron, Stefan Brands or closer to home EPG or these cranky NGOs who are only going to say things we dont want to hear? They should stop reading the Guardian, get out more and see what life is like on the local housing estate. Because our progress is not to be impeded; the rules have changed and we have to move forward into a diffrent world.His response is
"The proponents are very articulate...
This is one half of the discussion that isn't taking place anywhere I can see...
I find class-based arguments strikingly unattractive...
I think the notion that human dignity & rights are the exclusive fixation of some middle-class wafflers is one to which history wil be unkind.
Unintrusive state services matter to everyone...
Should we be surprised if the people far-sighted enough to be concerned about the long-term implications of the complicated cross-fertilisation of technology and the work of bureaucracy turn out to be educated people professionally active in IT and trying to apply values to what they do? No. The minicab driver is too busy just now. But he'll care about it when it hits him...
We should examine longer-term the idea that bureaucratic intrusion is offensive only to an introspective group of wafflers and IT suppliers and is of no concern to "real people"."
It's just a piece of paper
I missed this. A couple of weeks ago, President Bush allegedly lost his temper in the Oval Office and said, in response to the suggestion that there was a valid case to be made that some of the provisions in the Patriot act undermine the US Constitution,
"Stop throwing the Constitution in my face. It’s just a goddamned piece of paper."
I can certainly imagine presidents getting frustrated with constitutional constraints but I can't imagine many of his predecessors expressing a similar sentiment. The president does, after all, at his/her inauguration, swear faithfully to uphold the constitution.
"Stop throwing the Constitution in my face. It’s just a goddamned piece of paper."
I can certainly imagine presidents getting frustrated with constitutional constraints but I can't imagine many of his predecessors expressing a similar sentiment. The president does, after all, at his/her inauguration, swear faithfully to uphold the constitution.
The ends justify the lies?
Ian Brown has selected a telling quote from Federal judge John Jones' ruling against the teaching of "intelligent design" as part of the science curriculum in a Pennsylvania school district:
"It is ironic that several of these individuals, who so staunchly and proudly touted their religious convictions in public, would time and again lie to cover their tracks and disguise the real purpose behind the ID Policy.
"We find that the secular purposes claimed by the board amount to a pretext for the board's real purpose, which was to promote religion in the public school classroom."
"It is ironic that several of these individuals, who so staunchly and proudly touted their religious convictions in public, would time and again lie to cover their tracks and disguise the real purpose behind the ID Policy.
"We find that the secular purposes claimed by the board amount to a pretext for the board's real purpose, which was to promote religion in the public school classroom."
Good night and good luck
Wendy Seltzer says "If you care about politics or media, you owe yourself a viewing of Good Night, And Good Luck, the new film on Edward R. Murrow and his fight to expose Joseph McCarthy. The film, shot in black and white with McCarthy playing himself via old news footage, powerfully captures the horror of McCarthy's witch hunt. Equally important, it reminds us of journalism's power -- and its obligation -- to educate and lead."
Several of Murrow's speeches and broadcasts are apparently included in the film and retain a powerful resonance today.
Several of Murrow's speeches and broadcasts are apparently included in the film and retain a powerful resonance today.
Banned by Google
A small search engine company has accused Google of banning them from using Google. Thanks to John Battelle for the link.
Bush under fire
The Democrats are keeping the pressure on president Bush over the justification for the war in Iraq with Rep. John Conyers (D-MI) Investigative Status Report of the House Judiciay Committee Democratic Staff.
The executive summary is damning, as you might expect.
"In brief, we have found that there is substantial evidence the President, the Vice-President and other high ranking members of the Bush Administration misled Congress and the American people regarding the decision to go to war in Iraq; misstated and manipulated intelligence information regarding the justification for such war; countenanced torture and cruel, inhuman and degrading treatment in Iraq; and permitted inappropriate retaliation against critics of their Administration.
There is a prima facie case that these actions by the President, Vice-president and other members of the Bush Administration violated a number of federal laws including, (1) Committing a Fraud against the United States; (2) Making False Statements to Congress; (3) The War Powers Resolution; (4) Misuse of Government Funds; (5) federal laws and international treaties prohibiting torture and cruel, inhuman and degrading treatment; (6) federal laws concerning retaliating against witnesses and other individuals; and (7) federal laws and regulations concerning leaking and other misuse of intelligence.
While these charges clearly rise to the level of impeachable misconduct... more investigatory authority is needed before recommendations can be made regarding specific Articles of Impeachment."
It goes on to say that Bush and Cheney should be censured and that the Justice Department should investigate the legality of their behaviour. So a big part of the Democrats' efforts to regain the White House in 2008 looks likely to be a racking up of the pressure to get Mr Bush impeached. After all, President Clinton was impeached for lying about having extra-marital sex in the Oval Office and the charges they are laying against the president are a fair bit more serious than that. Mr Bush and his allies will be even more focussed, therefore, on retaining control of Congress after the mid term elections because if the Democrats do get a majority, there will almost certainly be an impeachment.
The whole report runs to over 200 pages but the executive summary is well worth a read.
The executive summary is damning, as you might expect.
"In brief, we have found that there is substantial evidence the President, the Vice-President and other high ranking members of the Bush Administration misled Congress and the American people regarding the decision to go to war in Iraq; misstated and manipulated intelligence information regarding the justification for such war; countenanced torture and cruel, inhuman and degrading treatment in Iraq; and permitted inappropriate retaliation against critics of their Administration.
There is a prima facie case that these actions by the President, Vice-president and other members of the Bush Administration violated a number of federal laws including, (1) Committing a Fraud against the United States; (2) Making False Statements to Congress; (3) The War Powers Resolution; (4) Misuse of Government Funds; (5) federal laws and international treaties prohibiting torture and cruel, inhuman and degrading treatment; (6) federal laws concerning retaliating against witnesses and other individuals; and (7) federal laws and regulations concerning leaking and other misuse of intelligence.
While these charges clearly rise to the level of impeachable misconduct... more investigatory authority is needed before recommendations can be made regarding specific Articles of Impeachment."
It goes on to say that Bush and Cheney should be censured and that the Justice Department should investigate the legality of their behaviour. So a big part of the Democrats' efforts to regain the White House in 2008 looks likely to be a racking up of the pressure to get Mr Bush impeached. After all, President Clinton was impeached for lying about having extra-marital sex in the Oval Office and the charges they are laying against the president are a fair bit more serious than that. Mr Bush and his allies will be even more focussed, therefore, on retaining control of Congress after the mid term elections because if the Democrats do get a majority, there will almost certainly be an impeachment.
The whole report runs to over 200 pages but the executive summary is well worth a read.
Football Fanzine fight to print fixtures
An online football fanzine has received cease and desist letters from Data Co "a company owned by the Premier and Football Leagues, whose job is to charge for publication of the fixture lists, as well as the increasing volume of other data, including match statistics, to which the clubs claim copyright."
French to introduce copyright directive
After lots of posturing and legal action by the EU commission against member states who had not yet implemented the 2001 copyright directive, the French parliament are using an emergency procedure to fast-track their version of the law through.
Apparently it will still allow private copying and be targeted at those who benefit financially from piracy. Assertions along those lines from responsible ministers don't necessarily hold any weight unless we can see the actual details of the bill of course.
Apparently it will still allow private copying and be targeted at those who benefit financially from piracy. Assertions along those lines from responsible ministers don't necessarily hold any weight unless we can see the actual details of the bill of course.
Pokemon scientist threatened with IP suit
From The Trademark Blog,
Nintendo, owner of the Pokemon property, has protested the use of the name POKEMON by scientist Pier Paolo Pandolfi... to refer to the POK erythroid myeloid ontogenic gene in his Nature article "Role of the proto-oncogene Pokemon in cellular transformation and ARF repression."
Pandolfi has now changed the name of the cancer-causing gene from "Pokemon" to Zbtb7.
Nintendo, owner of the Pokemon property, has protested the use of the name POKEMON by scientist Pier Paolo Pandolfi... to refer to the POK erythroid myeloid ontogenic gene in his Nature article "Role of the proto-oncogene Pokemon in cellular transformation and ARF repression."
Pandolfi has now changed the name of the cancer-causing gene from "Pokemon" to Zbtb7.
Data retention, off-shoring and inducment
Jonathan Zittrain has asked some typically insightful questions about the EU data retention directive:
"I'm curious whether a US or other foreign market might arise for
turnkey startup-to-shutdown VPN services on European PCs, allowing
those inside Europe to render data retention moot in exchange for a
slight slowdown in network performance (as everything routes through
an overseas server) and the possibility of surveillance or retention
in that third location. One wonders if any of the member state
implementations of the directive will seek to penalize the provision
or use of such services under an "induce" or other standard."
"I'm curious whether a US or other foreign market might arise for
turnkey startup-to-shutdown VPN services on European PCs, allowing
those inside Europe to render data retention moot in exchange for a
slight slowdown in network performance (as everything routes through
an overseas server) and the possibility of surveillance or retention
in that third location. One wonders if any of the member state
implementations of the directive will seek to penalize the provision
or use of such services under an "induce" or other standard."
Tuesday, December 20, 2005
Federal judge rules against intelligent design
A Federal judge has ruled against the teaching of "intelligent design" as part of the science curriculum of public schools in a Pennsylvania school district.
The judge said:
"we have addressed the seminal question of whether ID is science. We have concluded that it is not, and moreover that ID cannot uncouple itself from its creationist, and thus religious, antecedents."
He went on in fairly scathing fashion:
"Those who disagree with our holding will likely mark it as the product of an activist judge. If so, they will have erred as this is manifestly not an activist Court. Rather, this case came to us as the result of the activism of an ill-informed faction on a school board, aided by a national public interest law firm eager to find a constitutional test case on ID, who in combination drove the Board to adopt an imprudent and ultimately unconstitutional policy. The breathtaking inanity of the Board's decision is evident when considered against the factual backdrop which has now been fully revealed through this trial. The students, parents, and teachers of the Dover Area School District deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources.
To preserve the separation of church and state mandated by the Establishment Clause of the First Amendment to the United States Constitution, and Art. I, § 3 of the Pennsylvania Constitution, we will enter an order permanently enjoining Defendants from maintaining the ID Policy in any school within the Dover Area School District, from requiring teachers to denigrate or disparage the scientific theory of evolution, and from requiring teachers to refer to a religious, alternative theory known as ID. We will also issue a declaratory judgment that Plaintiffs' rights under the Constitutions of the United States and the Commonwealth of Pennsylvania have been violated by Defendants' actions. Defendants' actions in violation of Plaintiffs' civil rights as guaranteed to them by the Constitution of the United States and 42 U.S.C. § 1983 subject Defendants to liability with respect to injunctive and declaratory relief, but also for nominal damages and the reasonable value of Plaintiffs' attorneys' services and costs incurred in vindicating Plaintiffs' constitutional rights."
That's a slam dunk then?
The judge said:
"we have addressed the seminal question of whether ID is science. We have concluded that it is not, and moreover that ID cannot uncouple itself from its creationist, and thus religious, antecedents."
He went on in fairly scathing fashion:
"Those who disagree with our holding will likely mark it as the product of an activist judge. If so, they will have erred as this is manifestly not an activist Court. Rather, this case came to us as the result of the activism of an ill-informed faction on a school board, aided by a national public interest law firm eager to find a constitutional test case on ID, who in combination drove the Board to adopt an imprudent and ultimately unconstitutional policy. The breathtaking inanity of the Board's decision is evident when considered against the factual backdrop which has now been fully revealed through this trial. The students, parents, and teachers of the Dover Area School District deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources.
To preserve the separation of church and state mandated by the Establishment Clause of the First Amendment to the United States Constitution, and Art. I, § 3 of the Pennsylvania Constitution, we will enter an order permanently enjoining Defendants from maintaining the ID Policy in any school within the Dover Area School District, from requiring teachers to denigrate or disparage the scientific theory of evolution, and from requiring teachers to refer to a religious, alternative theory known as ID. We will also issue a declaratory judgment that Plaintiffs' rights under the Constitutions of the United States and the Commonwealth of Pennsylvania have been violated by Defendants' actions. Defendants' actions in violation of Plaintiffs' civil rights as guaranteed to them by the Constitution of the United States and 42 U.S.C. § 1983 subject Defendants to liability with respect to injunctive and declaratory relief, but also for nominal damages and the reasonable value of Plaintiffs' attorneys' services and costs incurred in vindicating Plaintiffs' constitutional rights."
That's a slam dunk then?
Words aren't property Mrs Google Print critic
Bill Herman is irritated at a journalist's misunderstanding of copyright and Google's fair use rights.
"Blogging a dead horse
I know I already complained about her article, but Susan Cheever's misunderstanding of copyright law is just driving me batty.
She literally maps the entirety of property law onto copyright law and uses this half-suited metaphor to guide her highly moralistic judgements. In a December 12 Newsday piece entitled "Just Google 'thou shalt not steal,'" she makes copyright claims that would make even Jack Valenti blush. (Okay, so that's a metaphor, too. BUSTED.)
To wit:
One more:
In 1997, the exclusive right of publication wasn't enough for the copyright industries; they wanted to take away my freedom to tinker as well. It is now illegal to make a backup copy of my 5-year-old niece's favorite DVD. That's even though copying a software install CD for the exact same reason is 110% legal. Backup DVD? Illegal. Backup software? Legal. Making a new software key for legally purchased software? Illegal. Make sense to you? Me neither."
[Btw Ignore the comment at the bottom of the post - it's just spam]
"Blogging a dead horse
I know I already complained about her article, but Susan Cheever's misunderstanding of copyright law is just driving me batty.
She literally maps the entirety of property law onto copyright law and uses this half-suited metaphor to guide her highly moralistic judgements. In a December 12 Newsday piece entitled "Just Google 'thou shalt not steal,'" she makes copyright claims that would make even Jack Valenti blush. (Okay, so that's a metaphor, too. BUSTED.)
To wit:
Words are property. This principle has been upheld by the law since 1710, when the first copyright law was passed.Actually, Ms. Cheever, you're talking about the Statute of Anne, which (according to the text of the Act and every generation of British Parliament since its passage) says no such thing. Quite the contrary. British publishers even arranged a collusive lawsuit to try to apply common law principles of property to copyright in books, which failed. When a real lawsuit came out as the publishers wanted (Millar v. Taylor, 1769), that principle actually did make it onto the law books--for five whole years. It was overturned by Donaldson v. Becket in 1774, and the Donaldson precedent--that the copyright monopoly is not subject to the common law rules of tangible property--has stood ever since (Vaidhyanathan, 2001, pp. 42-43)...
One more:
Google doesn't like the copyright laws as they have existed for centuries.This is a profound inversion of who's really changing the rules around here. At the behest of the copyright industries, we've gone from something resembling a coherent (if still not public-interest-minded) copyright law to what most commentators describe as a system of insane, overreaching, incomprehensible, First-Amendment-squashing copyright law...
In 1997, the exclusive right of publication wasn't enough for the copyright industries; they wanted to take away my freedom to tinker as well. It is now illegal to make a backup copy of my 5-year-old niece's favorite DVD. That's even though copying a software install CD for the exact same reason is 110% legal. Backup DVD? Illegal. Backup software? Legal. Making a new software key for legally purchased software? Illegal. Make sense to you? Me neither."
[Btw Ignore the comment at the bottom of the post - it's just spam]
It's a wonderful Internet
Here's a neat combined self-promotion and Christmas greeting creation: a virtual pop-up book take-off of Frank Capra's It's a Wonderful Life and Clement Clarke Moore's Twas the night before Christmas.
Sworn to uphold the law
From President Bush's press conference yesterday morning, there were some questions on his authorisation of spying on US citizens without judicial oversight:
"Q -- why, in the four years since 9/11, has your administration not sought to get changes in the law instead of bypassing it, as some of your critics have said?
THE PRESIDENT:
I think I've got the authority to move forward...
Secondly, an open debate about law would say to the enemy, here is what we're going to do. And this is an enemy which adjusts. We monitor this program carefully. We have consulted with members of the Congress over a dozen times. We are constantly reviewing the program. Those of us who review the program have a duty to uphold the laws of the United States, and we take that duty very seriously...
Q Thank you, Mr. President. I wonder if you can tell us today, sir, what, if any, limits you believe there are or should be on the powers of a President during a war, at wartime? And if the global war on terror is going to last for decades, as has been forecast, does that mean that we're going to see, therefore, a more or less permanent expansion of the unchecked power of the executive in American society?
THE PRESIDENT: First of all, I disagree with your assertion of "unchecked power."
Q Well --
THE PRESIDENT: Hold on a second, please. There is the check of people being sworn to uphold the law, for starters. There is oversight. We're talking to Congress all the time, and on this program, to suggest there's unchecked power is not listening to what I'm telling you. I'm telling you, we have briefed the United States Congress on this program a dozen times...
Q What limits do you --
THE PRESIDENT: I just described limits on this particular program, Peter. And that's what's important for the American people to understand. I am doing what you expect me to do, and at the same time, safeguarding the civil liberties of the country..."
A slanted characterisation of this might read:
Q - Why not work to change the law rather than bypass it?
Ans. - I think it's ok to bypass the law.
Q - With a long war on terror, will there be unlimited expansion of executive powers?
Ans. - I don't like your question. I swore to uphold the law and I talk to Congress and I'll do what I like to protect your civil liberties.
That would be a bit unfair though, wouldn't it?
"Q -- why, in the four years since 9/11, has your administration not sought to get changes in the law instead of bypassing it, as some of your critics have said?
THE PRESIDENT:
I think I've got the authority to move forward...
Secondly, an open debate about law would say to the enemy, here is what we're going to do. And this is an enemy which adjusts. We monitor this program carefully. We have consulted with members of the Congress over a dozen times. We are constantly reviewing the program. Those of us who review the program have a duty to uphold the laws of the United States, and we take that duty very seriously...
Q Thank you, Mr. President. I wonder if you can tell us today, sir, what, if any, limits you believe there are or should be on the powers of a President during a war, at wartime? And if the global war on terror is going to last for decades, as has been forecast, does that mean that we're going to see, therefore, a more or less permanent expansion of the unchecked power of the executive in American society?
THE PRESIDENT: First of all, I disagree with your assertion of "unchecked power."
Q Well --
THE PRESIDENT: Hold on a second, please. There is the check of people being sworn to uphold the law, for starters. There is oversight. We're talking to Congress all the time, and on this program, to suggest there's unchecked power is not listening to what I'm telling you. I'm telling you, we have briefed the United States Congress on this program a dozen times...
Q What limits do you --
THE PRESIDENT: I just described limits on this particular program, Peter. And that's what's important for the American people to understand. I am doing what you expect me to do, and at the same time, safeguarding the civil liberties of the country..."
A slanted characterisation of this might read:
Q - Why not work to change the law rather than bypass it?
Ans. - I think it's ok to bypass the law.
Q - With a long war on terror, will there be unlimited expansion of executive powers?
Ans. - I don't like your question. I swore to uphold the law and I talk to Congress and I'll do what I like to protect your civil liberties.
That would be a bit unfair though, wouldn't it?
Oilogpoly report
The ETC Group have published a new report on the concentration of corporate power in various sectors. Apparently concentration in the sectors examined, pharmaceuticals, animal pharmaceuticals, biotechnology, pesticides, food and beverage processing, global grocery retailers, nanotechnology and synthetic biology has increased since their last report on this two years ago.
Wikipedia on steroids
When Wikipedia was launched I was one of the skeptics who thought that an encyclopedia that anyone could change would never work. It's proved to be a remarkable success, however and was recently judged to be nearly as accurate as the Encyclopedia Britannica. One of Wikipedia's founders, Larry Sanger, will launch an online encyclopedia to be policed by experts in the new year.
"Digital Universe aims to garner the best of both worlds: harness wide public input, but with acknowledged experts acting as stewards.
The project has a long list of institutions signed up, including the National Council for Science and the Environment, the American Museum of Natural History, the World Resources Institute, the UN and UCB."
"Digital Universe aims to garner the best of both worlds: harness wide public input, but with acknowledged experts acting as stewards.
The project has a long list of institutions signed up, including the National Council for Science and the Environment, the American Museum of Natural History, the World Resources Institute, the UN and UCB."
Analysis of Bush surveillance of US citizens
For the legal eagles, Orin Kerr has an analysis of the legality of the Bush administration's controversial approval the surveillance of US citizens.
Adelphi Charter
John Howkins has been explaining the importance of intellectual property in the latest ediion of Script-Ed.
"An observer of current debates on intellectual property would surely draw two conclusions. One is that IP touches fundamental elements of public policy: on where to draw the line between the public and the private and on where the market should be allowed free rein...
We believe there is an urgent need for a public debate, addressing the real issues of IP, in which politicians and academics and the public and industry can all take part with some common ground. The Adelphi Charter was written to start this debate going, and from the public’s not the industry’s point of view...
IP is important to society as well as to a few rights-holders, and that the current regime is far from perfect...
Whenever I am asked why we did it, I have two answers, The firstly, only half flippant, is, ‘Someone had to’. The second is to refer to something topical, such as the EU opt-out of the TRIPS clause on compulsory licensing for the import of generic drugs in the case of a public healthy emergency. It’s a safe guess that no politician would be happy defending that opt-out against a constituent who was short of tamiflu. It’s also a safe bet that no constituent would ever think of asking the question. I hope the Adelphi Charter has done something to make g both policy-makers and public more aware of what is going on. There are plenty more examples like that one."
Politicians and constituents alike are barely aware of the existence of IP let alone its importance. If a public health emergency did hit the UK and IP got in the way of dealing with it, I'm not sure even then that people would realise its importance because of the relative complexity of the IP landscape.
"An observer of current debates on intellectual property would surely draw two conclusions. One is that IP touches fundamental elements of public policy: on where to draw the line between the public and the private and on where the market should be allowed free rein...
We believe there is an urgent need for a public debate, addressing the real issues of IP, in which politicians and academics and the public and industry can all take part with some common ground. The Adelphi Charter was written to start this debate going, and from the public’s not the industry’s point of view...
IP is important to society as well as to a few rights-holders, and that the current regime is far from perfect...
Whenever I am asked why we did it, I have two answers, The firstly, only half flippant, is, ‘Someone had to’. The second is to refer to something topical, such as the EU opt-out of the TRIPS clause on compulsory licensing for the import of generic drugs in the case of a public healthy emergency. It’s a safe guess that no politician would be happy defending that opt-out against a constituent who was short of tamiflu. It’s also a safe bet that no constituent would ever think of asking the question. I hope the Adelphi Charter has done something to make g both policy-makers and public more aware of what is going on. There are plenty more examples like that one."
Politicians and constituents alike are barely aware of the existence of IP let alone its importance. If a public health emergency did hit the UK and IP got in the way of dealing with it, I'm not sure even then that people would realise its importance because of the relative complexity of the IP landscape.
Monday, December 19, 2005
Warber/Chappell apologise to lyrics site
When Warner Chappell CEO, Richard Blackstone, found out his lawyers had been sending cease and desist letters to lyrics sites he withdrew the threats and apologised.
UK MEPs for and against data retention
Spy Blog has the lowdown on which UK MEPs voted for and against the data retention directive in the EU parliament last Wednesday.
I had written to Emma Nicholson (Lib Dem) and Caroline Lucas (Green), two of my MEPs in the South East, in advance of the vote, expressing concerns about the proposal. Neither Baroness Nicholson nor Dr Lucas were present for the vote, though I did receive a response from two of Dr Lucas's office colleagues (one in Brussels, one in the UK) thanking me for my note and agreeing with my concerns. Dr Lucas was unable to attend for the vote due to attending the WTO talks in Hong Kong as part of the official delegation from the European Parliament. I have not yet heard from the Baroness or any of her colleagues.
I had written to Emma Nicholson (Lib Dem) and Caroline Lucas (Green), two of my MEPs in the South East, in advance of the vote, expressing concerns about the proposal. Neither Baroness Nicholson nor Dr Lucas were present for the vote, though I did receive a response from two of Dr Lucas's office colleagues (one in Brussels, one in the UK) thanking me for my note and agreeing with my concerns. Dr Lucas was unable to attend for the vote due to attending the WTO talks in Hong Kong as part of the official delegation from the European Parliament. I have not yet heard from the Baroness or any of her colleagues.
EC withdraws proposals to harmonise criminal sanctions for counterfeiting
The European Commission have withdrawn proposals to harmonise criminal sanctions for for intellectual property infringement, according to Rouse & Co. International. New proposals will be put forward in 2006.
"Following a recent decision of the ECJ clarifying the basis on which Community legislature may provide criminal sanctions, the European Commission (EC) has decided to withdraw its previously published proposals for the harmonisation of criminal sanctions relating to counterfeiting and piracy. A new proposal will be introduced in 2006."
"Following a recent decision of the ECJ clarifying the basis on which Community legislature may provide criminal sanctions, the European Commission (EC) has decided to withdraw its previously published proposals for the harmonisation of criminal sanctions relating to counterfeiting and piracy. A new proposal will be introduced in 2006."
Is drm good for you
Conveniently in the wake of the introduction of the Analog Hole bill, Ed Felten has a nice clear comparison with copyright.
"Copyright can be understood as an agreement among all of us that we will not infringe. Even though each of us individually would prefer to use works without paying, we understand that if we all refrain from infringing this increases incentives for authors, leading to the creation of more works we can enjoy. By making and keeping this copyright deal with each other, we come out ahead. (That’s the theory anyway. We all know what happens when the lobbyists show up, but work with me here, okay?)
One of the practical problems with this kind of deal is that each individual can gain by defecting from the deal — in the case of copyright, by infringing at will. If enough people defect, the deal could collapse. This danger is especially acute when it’s technologically easy to defect. Some people argue that this is happening to the copyright deal...
here might be a similar deal in which we all agree to accept some kind of DRM in order to boost incentives for authors and thereby cause the creation of more works than would otherwise exist...
First, it turns out to be easy technologically to defect from the CD-DRM deal. Experience with the copyright deal teaches us that when it’s easy to defect, many people will, whether we like it or not.
Second, the costs of the CD-DRM deal seem much clearer than the benefits...
The best argument against the CD-DRM deal, though, is that it is inferior to the copyright deal. If we’re going to make and keep a deal of this general type, the copyright deal is the one to pick. Compared to the copyright deal, the CD-DRM deal is a loser: costs are higher, benefits are the same at best, and the deal is just as easy to defect from. If we can’t keep the copyright deal, then we won’t be able to keep the CD-DRM deal either. But more to the point, we shouldn’t make the CD-DRM deal in the first place...
Now I’m not arguing here that the current copyright deal is perfect or even close to perfect. The copyright deal is under stress and we need to keep thinking about how we might improve it or how we might renegotiate it to work better in the digital world. I’m not certain what the best deal would look like, but I’m pretty sure that it won’t try to lock in any kind of DRM."
"Copyright can be understood as an agreement among all of us that we will not infringe. Even though each of us individually would prefer to use works without paying, we understand that if we all refrain from infringing this increases incentives for authors, leading to the creation of more works we can enjoy. By making and keeping this copyright deal with each other, we come out ahead. (That’s the theory anyway. We all know what happens when the lobbyists show up, but work with me here, okay?)
One of the practical problems with this kind of deal is that each individual can gain by defecting from the deal — in the case of copyright, by infringing at will. If enough people defect, the deal could collapse. This danger is especially acute when it’s technologically easy to defect. Some people argue that this is happening to the copyright deal...
here might be a similar deal in which we all agree to accept some kind of DRM in order to boost incentives for authors and thereby cause the creation of more works than would otherwise exist...
First, it turns out to be easy technologically to defect from the CD-DRM deal. Experience with the copyright deal teaches us that when it’s easy to defect, many people will, whether we like it or not.
Second, the costs of the CD-DRM deal seem much clearer than the benefits...
The best argument against the CD-DRM deal, though, is that it is inferior to the copyright deal. If we’re going to make and keep a deal of this general type, the copyright deal is the one to pick. Compared to the copyright deal, the CD-DRM deal is a loser: costs are higher, benefits are the same at best, and the deal is just as easy to defect from. If we can’t keep the copyright deal, then we won’t be able to keep the CD-DRM deal either. But more to the point, we shouldn’t make the CD-DRM deal in the first place...
Now I’m not arguing here that the current copyright deal is perfect or even close to perfect. The copyright deal is under stress and we need to keep thinking about how we might improve it or how we might renegotiate it to work better in the digital world. I’m not certain what the best deal would look like, but I’m pretty sure that it won’t try to lock in any kind of DRM."
Understanding law
Susan Crawford thinks that it would be a good idea for the politicos who pass new laws to understand the substance of the law they are proposing. She's specifically thinking of the Analog Hole bill, the latest effort drafted by lawyers of the entertainment industry and introduced by their friendly congressmen, Mr. Sensenbrenner and Mr. Conyers, to mandate drm in the US.
"So I want someone to call both Mr. Sensenbrenner and Mr. Conyers and ask them to explain how the Analog Hole bill (introduced late yesterday - 35 page PDF) works.
I bet they won't be able to do it. Oh, maybe they'll say something about "protecting digital content in a terrifying time," but they probably won't be able to go farther down the rhetorical ladder.
It's not an easy bill to parse. It looks as if two marking schemes, CGMS-A and VEIL, are going to be required to be acknowledged and adhered to through all analog-digital conversions of video. That's just my guess. The bill will probably affect an enormous variety of devices that have analog inputs."
"So I want someone to call both Mr. Sensenbrenner and Mr. Conyers and ask them to explain how the Analog Hole bill (introduced late yesterday - 35 page PDF) works.
I bet they won't be able to do it. Oh, maybe they'll say something about "protecting digital content in a terrifying time," but they probably won't be able to go farther down the rhetorical ladder.
It's not an easy bill to parse. It looks as if two marking schemes, CGMS-A and VEIL, are going to be required to be acknowledged and adhered to through all analog-digital conversions of video. That's just my guess. The bill will probably affect an enormous variety of devices that have analog inputs."
DHS monitor inter library loans
A student at the University of Massachusetts Dartmouth has recently had a visit from a couple of federal agents after requesting a copy of Mao Tse-Tung's "The Little Red Book." The agents told him the book was on a watch list, so presumably branches of some agencies are monitoring interlibrary loans quite extensively? The PATRIOT Act gives federal authorities the right to access people's library records. The student had been doing research for a class paper on communism.
Update: Xeni Jardin wonders if this story is a hoax.
Update: Xeni Jardin wonders if this story is a hoax.
The myth of the magic computer
EPIC reports that
"At least 30,000 air passengers have been improperly matched to names on federal watch lists since last November, according to Jim Kennedy, head of the Transportation Security Administration redress office. Each of the 30,000 individuals submitted personal information and identification documents to the agency in hopes of resolving their misidentification problems, and were issued letters to help them clear security more quickly. A few dozen more people were unable to benefit from this redress process. Kennedy provided the information at a meeting of the Department of Homeland Security's Data Privacy and Integrity Advisory Committee in Washington last week. In related news, a Swedish newspaper cited European airline sources as saying that 80,000 names were on the watch list provided by the U.S. government to airlines for passenger screening."
This myth that if we collect enough information on enough people then a computer system will magically point a genie-like finger at the bad guys really does lead to a dangerous misappropriation of scarce resources. Money that could be used to recruit and train more intelligence officers etc and provide the resource base for them to gather intelligence, investigate, engage in preventative measures and emergency response in the face of serious crime, is being thrown at vaguely specified computer systems like that for the UK's ID card scheme and Secure Flight.
Think about it. 30000 people are obliged to apply for a letter to declare they are not really terrorist suspects and most of them probably shouldn't really be on a no fly list. How much effort is going into processing those claims alone? How does it help with airline security? What if someone getting an all clear letter really is a serious security risk?
EPIC also point to this neat idea - someone is selling the first ten parts of the US Bill of Rights on pocket sized pieces of metal and encouraging folks to carry them wherever they have to pass through metal detectors such as those at airports. They suggest:
"The next time you travel by air, take the Bill of Rights - Security Edition along with you. When asked to empty your pockets, proudly toss the Bill of Rights in the plastic bin.
You need to get used to offering up the bill of rights for inspection and government workers enforcing the USAPATRIOT ACT need to get used to deciding if you'll be allowed to keep the Bill of Rights with you when you travel."
Perhaps someone could do likewise on this side of the pond with the Human Rights Act, or the European Convention on Human Rights, or even the UN's Universal Declaration on Human Rights?
"At least 30,000 air passengers have been improperly matched to names on federal watch lists since last November, according to Jim Kennedy, head of the Transportation Security Administration redress office. Each of the 30,000 individuals submitted personal information and identification documents to the agency in hopes of resolving their misidentification problems, and were issued letters to help them clear security more quickly. A few dozen more people were unable to benefit from this redress process. Kennedy provided the information at a meeting of the Department of Homeland Security's Data Privacy and Integrity Advisory Committee in Washington last week. In related news, a Swedish newspaper cited European airline sources as saying that 80,000 names were on the watch list provided by the U.S. government to airlines for passenger screening."
This myth that if we collect enough information on enough people then a computer system will magically point a genie-like finger at the bad guys really does lead to a dangerous misappropriation of scarce resources. Money that could be used to recruit and train more intelligence officers etc and provide the resource base for them to gather intelligence, investigate, engage in preventative measures and emergency response in the face of serious crime, is being thrown at vaguely specified computer systems like that for the UK's ID card scheme and Secure Flight.
Think about it. 30000 people are obliged to apply for a letter to declare they are not really terrorist suspects and most of them probably shouldn't really be on a no fly list. How much effort is going into processing those claims alone? How does it help with airline security? What if someone getting an all clear letter really is a serious security risk?
EPIC also point to this neat idea - someone is selling the first ten parts of the US Bill of Rights on pocket sized pieces of metal and encouraging folks to carry them wherever they have to pass through metal detectors such as those at airports. They suggest:
"The next time you travel by air, take the Bill of Rights - Security Edition along with you. When asked to empty your pockets, proudly toss the Bill of Rights in the plastic bin.
You need to get used to offering up the bill of rights for inspection and government workers enforcing the USAPATRIOT ACT need to get used to deciding if you'll be allowed to keep the Bill of Rights with you when you travel."
Perhaps someone could do likewise on this side of the pond with the Human Rights Act, or the European Convention on Human Rights, or even the UN's Universal Declaration on Human Rights?