Censorship or privacy protection?

Another small skirmish in the battles over genetically modified crops has been playing out in France. A French court has ordered Greenpeace to take down webpages identifying the location of fields growing genetically modified crops. Greenpeace says it is censorship. The court said the environment advocacy group were invading the farmers' privacy. They've also protested the decision by going into one of the fields concerned and cutting an X in a circle into the crop.


Greenpeace France spokesman, Arnaud Apoteker, says "As we are now forbidden to publish these maps of GE maize on our webpage, we have gone into the fields and marked the field for real." Greenpeace reckon that EU regulations make it an obligation for member states to maintain publicly accessible registers of the location of GM crop growth. The words 'irritated judge', 'contempt', 'court' and 'of' come to mind, though not necessarily in that order.

French drm law turns poisonous

The various shenanigans in France surrounding the implementation of the 2001 EU copyright directive have latterly turned poisonous. Jean-Baptiste Soufron has the details:

"Disappearance of Fair Use provisions, new liability of software developers, increased liability of users, compulsory licensing for DRM producers, etc.

To sum it up, the Court decided to censor 4 provisions supposed to protect software developers and internet users...

The Court erases the exception that protected software developers who were specifically working on collaborative software, research or file sharing. Given the decision, any French developers working on such softwares could be sued by DRM producers or copyright holders. Even when it software is intended for non-copyrighted contents. So, no matter whether people use P2P software for some distributed business model or just to share Creative Commons-music, it’s already illegal...

The Court deletes the interoperability exception that was supposed to protect competition and free software developers. Without prior authorization, it will not be possible anymore to develop a software that could interact with DRM-encumbered content. This is true for Free Software developers, but it is also true for start-ups like Archos or Dailymotion...

The Court deletes the system that was punishing internet users with a 38 or 75 euros fine. Consequently, they will be sued under the default procedures and risk up to 5 years and 500 000 euros.

- On top of that, the Constitutional Court decided that it was normal to annihilate the French version of Fair Use. Without regards for the importance of cultural exchange amongst individuals, it even precised that it was normal for DRM producers obstacle à toute copie, which means "to forbid any copy". Nothing less.

All the balance will now depend on the newly created DRM Regulation Authority. This will decide the minimum amount of copies that can be done, etc.

But most importantly, the Law creates a compulsory licensing scheme for DRM producers. When asked, the DRM Regulation Authority can mandate companies like Apple to communicate essential information on their DRM to competitors: le demandeur peut obtenir l’accès aux informations essentielles à l’interopérabilité, meaning that competitors will have the opportunity to ask for essential informations necessary for interoperability.

The Court only precised that they would need to be indemnified for this. To quote them: cette communication devra entraîner leur indemnisation, this communication will have to be indemnified. But the principle is still the same: DRM producers can be mandated to license their technology to competitors.

Given these various points, the DADVSI is by far the hardest internet Law ever passed in the world. It seriously impedes the development of French startups in this sector."

War crimes immunity for US?

Jack Balkan has been analysing the Bush administration's proposals in response to the Supreme Court's Hamdan decision, gauranteeing Guantanamo detainees the protections of the Geneva convention. In particular he is concerned with the moves to amend or abolish the 1996 War Crimes Act, which basically says US citizens found guilty of committing war crimes will be fined, jailed or executed.

"So the Administration position, post-Hamdan, is that Congress should excuse Americans (and Administration officials) from liability for possible war crimes, either because the act is unnecessary-- since we have always acted humanely except for a few bad apples who didn't take orders from the Administration-- or because it is necessary-- since the Administration has in fact ordered people to violate Common Article 3...

And what about those bad apples who were acting completely on their own? Well, there's the rub, you see. If any of them is ever prosecuted under the War Crimes Act, their most likely defense will be that they weren't really bad apples after all, but were actually following orders of the Administration-- the same Administration that insists that it has always treated its detainees humanely. And if a jury were to find that they believed this defense, it would be a bit-- shall we say-- embarrassing for the Administration. So to minimize the risk of any such embarrassments, the Administration would prefer that even the bad apples don't get prosecuted under the War Crimes statute.

So there you have it. A law making it a illegal to commit war crimes is simply a luxury that we Americans can't afford."

Bush tries to skate round Supreme court on tribunals

According to the NYT, the White House is trying to bypass the Supreme Court's ruling in the Hamdan case that Guantanamo detainees are entitled to the protection of the Geneva Convention.

Jack Balkan says:

" It allows detainees to be excluded from their own trials and it states that the Geneva Conventions "are not a source of judicially enforceable individual rights." Although it bans the introduction of statements obtained through "torture", it allows introduction of statements made under "coercion" (i.e., anything the Administration regards as less than torture-- which turns out to be a wide array of forms of prisoner mistreatment) unless a military judge finds that the evidence would be "unreliable." It is no accident, then, that the draft demands that Common Article 3 of the Geneva Conventions not be judicially enforceable...

Much of the American public probably cares more about their privacy being violated by domestic surveillance than about the rights of detainees at Guantanamo, which suggests that Congress would be more likely to give in here. However, in the case of military tribunals, unlike the NSA case, the Supreme Court has declared the President's plan illegal."

Free copying for education in Thailand

According to Michelle Childs and Vera Fraz Thailand's supreme court has recently ruled that whole works can be copied for free for educational purposes. (Via A2K list).

Fair elections

I'm working on chapter 7 of my book which deals with the importance of understanding the limitations of technology as a tool, using two main stories, the development of radar technology before World War II and electronic voting.

I'm mostly interested in the situation in Ireland and the UK but I just came across a lovely evoting story, told by Bev Harris at BlackBoxVoting, eminating from the 2002 Governship election in Nebraska. The law in Nebraska states that the candidates are entitled to watch the count when the votes have been cast. One of the candidates, eager to watch democracy in action, was shown an optical scanning machine and then a computer in a private room with a blank screen.

Most of the high impact e-voting stories I'm familiar with come from the US so it would be good to hear from folks on the more colourful stories on this side of the pond.

Mandated interoperability for DRM

Susan Crawford is concerned at developments in France to mandate interoperability of DRM systems, mainly because of the bureaucratic nightmare which she envisages will inevitably be created to administer the regulations.

ALPSP response to British Library Content Strategy

The Association of Learned and Professional Society Publishers (ALPSP) (trade association for no profit publishers) has responded to the British Library's Content Strategy.

"We believe that a shift towards the provision of online rather than physical access is appropriate. However, customer expectations of what is possible with online content are limited only by the capabilities of the technology, and not by realistic business considerations; at the extreme, every UK citizen might expect free online access, and unhindered re-use, at home or at work to everything in the Library’s collection, which would obviously destroy the market for publishers....

We welcome the Library’s intention to play a more active role with regard to the collection of primary research data...

We absolutely reject, however, the Library’s view (see footnote 3, Page 3) that digitised full-text resources should be considered in the same light as research data. They are not the same – both authors and publishers may still have rights in these resources, which must be respected...

We remain to be convinced that institutional repositories will ever be significantly populated...To date, publishers’ policies with regard to author self-archiving have been remarkably relaxed. However, some journals have now reached the situation where all or most of their content is available in a single subject-based repository, and this is giving rise to some concern...

Thus we would urge the Library to exercise caution in its involvement with those repositories which replicate the content of journals; we are particularly concerned to hear of its involvement with the UK PubMed repository, since the Wellcome Trust has publicly stated that it expects and indeed welcomes damage to existing subscription journals. We would be deeply concerned if the Library were seen to be promoting the use of free but potentially inferior versions of published content."

I have two initial reactions:

1. It is not 'obvious' to me that online versions of content destroy the market for printed versions. The equation is far more complex and in relation to the music industry, for example, the claim that -

Number of downloads = number of lost sales

- is demonstrably false.

Lessig, in Free Culture, suggested there were four generic categories of those who use P2P -

A/ those who download instead of buying
B/ those who use P2P to sample before buying,
C/ those who get content that is otherwise difficult to buy
D/ and those who get content that is released under a less restrictive licence like creative commons.

This is not an exlusive list and these can be extended and further refined e.g. category A without the disposable income to buy the music, so downloading does not equate to a lost sale, as that person would not otherwise have had access to it.

2. I'm disappointed with the attack on PubMed and the Wellcome Trust support for open access. I wasn't aware that the latter had 'publicly stated that it expects and indeed welcomes damage to existing subscription journals.' Could someone point me at the source for that claim? (There is no citation in the ALPSP report backing this)

Thanks to Peter Suber for the heads up.

Credit to Bill Gates

David Bollier is not exactly Bill Gates' biggest fan but believes Gates deserves credit for recognising the value of the application of an open knowledge paradigm to AIDS research.

"One is tempted to snort at the hypocrisy that Gates has not applied the commons analysis to the development of Windows and other Microsoft products, whose proprietary code continues to thwart innovation and competition around the world. But let us be gracious. There will be time enough to learn how Gates squares the IP positions of his foundation and those of Microsoft. Indeed, given the company's recent agreement to include a new feature in Word that makes it easy to use Creative Commonslicenses in text documents, change may be afoot.

In the meantime, in the interest of finding an AIDS vaccine, Bill Gates has shown real leadership. His foundation is willing to acknowledge a truth that most other IP ideologues staunchly refuse to admit – that an open knowledge commons can be profoundly generative and innovative, and should therefore be actively promoted. Promising research results are now likely to arrive much sooner than otherwise."

Pebble Beach v B&B

In yet another case of lawyers wasting their clients' money, the famous Pebble Beach Golf club has been told (yet again) that they cannot sue the owner of a Bed&Breakfast establishment in Barton-on-Sea in the south of England for trademark infringement.

It's an indication of how silly the case got that one of the claims was that since the owner of the B&B once worked in a restaurant in California he must be targeting his business at people in California.

For readers outside the UK and the generally lawyerly challenged, take a look at these pictures for a clue as to why a B&B in Barton might be called Pebble Beach.

TIA alive and well

Jack Balkin has been musing about the US Total Information Awareness programme, widely reported to have been disbanded in 2003, but secretly ticking along since then.

"USA Today reported last week that elements of the Total Information Awareness program that Congress purportedly dismantled in 2003 were actually maintained. (National Journal also covered a different part of this story last February). It seems that John Poindexter's Total Information Awareness-- which attempted to compile massive databases on American citizens' daily lives, and then use the information to predict future crimes and terrorist incidents-- wasn't totally disbanded, despite all the media coverage stating that it was. It was just divided up into little pieces and called by a different name. And here's the best part: Congress has made it quite difficult to tell whether what the Administration has done is illegal, although, as I shall point out at the end of this post, we do have some interesting clues...

Has the White House once again violated federal law? Well, it's difficult to say. That's because when Congress defunded TIA, it created an escape hatch...

The statute allows the President to continue elements of TIA (and create new ones) in secret, ...Thus, we don't know how many parts of TIA continued after 2003 or are still in operation to this day, funded with Congress's blessing. But ...these secret programs must be for intelligence or surveillance wholly outside the United States or, if within the United States, they must be wholly directed at persons who are not United States citizens. That means in particular that something like the current NSA domestic surveillance program would not be permitted...

In fact, if the statutory language is to be believed, we can conclude that most if not all of the original TIA program was meant to be defunded, because, as originally conceived, it was directed at commercial transactions and personal communications within the United States and overwhelmingly involving American citizens.

That means, that even though we do not know the precise details of the elements of the TIA program that are still in operation, there is a very good chance that they are illegal, even under the secret escape hatch created by Congress in 2003.

What to do? The problem, as you may have expected, is oversight. The Administration has stated that these programs are legal because they fall under the escape hatch. But there is no way of knowing whether that is true, and the USA Today story suggests that it is not true: many of these programs involve domestic surveillance and include U.S. citizens. Members of Congress who are permitted to see classified information could provide the public with oversight, but Congress has thus far been particularly feckless in this regard. The NSA program is a perfect example: Congress paid little attention to the program until the New York Times revealed its existence, and then, as the recent Specter bill suggests, instead of trying to hold the Administration to account, it has mostly tried to facilitate what the Administration had already been doing illegally."

Update: Meanwhile the Boston Globe reports that the US government's no fly watch list has more members of Congress on it than terrorists.

Civil liberties cartoons

How a picture paints a thousand words. Clay Bennett has done some wonderful cartoons with a civil liberties theme for the Christian Science Monitor.

Thanks to the Idealgovernment folks for the link.

Tabloid government on the wane

Also in the Sunday Times, Simon Jenkins wonders Could this be the beginning of the end of tabloid government?

"Welcome to a week in the life of the Home Office. On Monday it was “super Asbos” (yet again) to crack down on crime without bothering judges. On Tuesday two Islamic groups were banned under new speech censorship powers. On Wednesday came a “top level purge” of disloyal Home Office officials. On Thursday we had 8,000 more prison places, a 10% increase, to accommodate “violent and dangerous prisoners”, and longer sentences for rapists and paedophiles. On Friday we had army boot camps back again to toughen up young prisoners and more summary justice by police on the street. This is the new Britain.

The arrival of John Reid at the Home Office has elevated the HGI (headline-grabbing initiative) into a medieval book of hours...
For all this the worm is beginning to turn. If only out of exhaustion the system seems to be rejecting the present government’s overriding HGI culture. Recent months have seen a lengthening list of initiatives shrinking as if removed from political life support...

The huge mainframe computers sold to gullible ministers and laundered through the “Office of Government Commerce” have never worked as promised. In most cases billions of pounds have gone up in unaudited smoke. At the Home Office alone, the prison service cannot keep tabs on released prisoners or talk to departments dealing with probation or immigration or asylum or even the police. The whole sales pitch of computers — joined-up government — was nonsense.

E-government was the application of technology to an insoluble problem, the straightening by government of Kant’s crooked timber of mankind. This was well demonstrated last month when an official was asked how many illegal immigrants there were in Britain. He pointed out that the question was impossible to answer, like the number of “failed asylum seekers” at large. He was excoriated for stating the obvious. "

ID risks leaked

From the Sunday Times: "Leak reveals ID card 'risks'"

"FRESH evidence that Tony Blair’s flagship identity cards scheme is in crisis is disclosed in a confidential Home Office report which has been leaked to The Sunday Times.

The 32-page “restricted” document says that the security system protecting the card and the national database could be infiltrated by criminal gangs involved in identity theft and highlights shrinking public support for the scheme. It also says British firms have no current manufacturing capacity to produce the card.

The report, entitled Market Soundings, flatly contradicts recent public reassurances to MPs by Joan Ryan, the minister responsible for ID cards, that the scheme is not facing any problems...

One of the most damning remarks in the new report is the disclosure by some manufacturers that they are in no position to make ID cards. They also said it might not be possible to produce enough iris cameras that will match the user’s “eyeprint” to their digital record on the national database."