EDRI-gram latest

The latest EDRI-gram has been published. As usual I recommend reading it in full. A couple of highlights:

IPRED2 adopted by the EP Legal Affairs committee

"The European Parliament's Legal Affairs committee has adopted on 20 March 2007 the draft IPRED directive following the opinions presented by MEP Nicola Zingaretti, with some important amendments though.

The good news is that the very controversial definition of "commercial scale infringement", that previously included the IPRs (Intellectual Property Rights) infringements by private users for personal use, was detailed and now the text refers to a criminal infringement as "a deliberate and conscious infringement of the intellectual property right for the purpose of obtaining commercial advantage."

The patents and utility models have been excluded from the scope of the directive. From the unexamined IPRs, design rights, database rights, and possibly rights related to semiconductor topographies are still in.

The bad news is that definitions are kept vague, the Committee considering that the European Court of Justice should interpret them. "

And

General ideas behind a computer game are not copyrighted

"The UK Court of Appeal has ruled that general ideas in a computer game can be copied, in the appeal Nova Productions, producer of Pocket Money computer game, made against two rival companies, Mazooma Games and Bell Fruit Games."

Judge Jacobs who gave the ruling said: "If protection for such general ideas as are relied on here were conferred by the law, copyright would become an instrument of oppression rather than the incentive for creation which it is intended to be. Protection would have moved to cover works merely inspired by others, to ideas themselves."

Turnitin sued by school kids

Some high school children in Arizona have sued Turnitin, a company that charges schools and colleges to check their students papers against a database of "more than 22 million student papers as well as online sources and electronic archives of journals." As papers are checked they are also added to the database, so the company is charging the folks who facilitate the growth of its database.

The students involved are specifying work they produced which included instructions to Turnitin not to add it to their database. The instructions were ignored and the papers added to the database anyway, not surprisingly since the process is basically automated. Sounds to me as though they might have quite a strong case and it will certainly be worth watching.

Thanks to Michael Geist for the link to this one.

Kaleidescape v DVD CCA: court says ripping DVDs ok

Very few people have heard of the DVD Content Control Association, which the US movie industry basically set up to control the manufacture of DVD players. The DVDCCA licences the DRM (digital locks) that get built into the players, supposedly to inhibit piracy. Now a judge in California says that there is nothing in the DVDCCA contract that prevents a licensee from making equipment to make copies of DVDs. Technically there is nothing in the licence that requires the DVD to be there during playback and the ruling is contractual rather than IP related i.e. the ruling doesn't really mean that ripping the copyrighted contents of DVDs is legal, just that there is nothing in the DVDCCA contract that prohibits it. So I guess Hollywood will kick the lawyers all the way home and hire a new lot to 'enhance' the smallprint in the DVDCCA licence.

Bloggership

D. Gordon Smith of the University of Wisconsin Law School prepared an interesting essay on 'bloggership' for the Harvard conference on blogging last April, exploring the potential of blogging as a scholarly medium.

"Blogging encourages individual research and reflection, and its public nature provides an opportunity for scholarly activity that is similar in many ways to presenting at an academic conference or publishing an editorial article. Bloggership is a useful neologism that distinguishes this sort of scholarship from traditional, long-form scholarship and it distinguishes blogging that has scholarly aspirations from other forms of blogging. If scholarship is about making a contribution to knowledge, and the receptacle for that contribution is a scholarly community, then blogs seem well positioned to serve as delivery mechanisms."

Joyce Estate settles with Carol Shloss

Stanford Professor of English, Carol Shloss, has finally won the right to publish her book on James Joyce's daughter, Lucia. Shloss had been denied the right to quote from Joyce's work by the Joyce estate controlled by his litigious grandson, Stephen. In 2004, for example, Stephen threatened to put a spanner in the works of the centenary celebrations of Joyce's Ulysses by claiming a display of Joyce's works (acquired by the Irish government for £12.6 million) at the National Library's James Joyce and Ulysses exhibition would infringe the estate's copyright. The government had to bring in emergency legislation to avoid a copyright suit from Stephen but even so his threats did scupper plans for public readings of Ulysses and even a plan to stage Joyce's play, Exiles, at the Abbey theatre.

In the Shloss case, though, it looks as though fair use has won through:

"Shloss suffered more than ten years of threats and intimidation by Stephen James Joyce, who purported to prohibit her from quoting from anything that James or Lucia Joyce ever wrote for any purpose. As a result of these threats, significant portions of source material were deleted from Shloss's book, Lucia Joyce: To Dance In The Wake.

In the lawsuits we filed against the Estate and against Stephen Joyce individually, we asked the Court to remove the threat of liability by declaring Shloss's right to publish those deleted materials on a website designed to supplement the book. After the trying to have the case dismissed for lack of subject matter jurisdiction, the Estate gave up the fight. Joyce and the Estate have now entered into a settlement agreement enforceable by the Court that prohibits them from enforcing any of their copyrights against Shloss in connection with the publication of the supplement, whether in electronic or printed form. (The Settlement Agreement is posted here.)

This is a remarkable victory given the Estate's past aggression. But more are needed in order to make clear and concrete the protections that Fair Use is intended to protect in theory. We hope this is the first in a string of many cases that vindicate the rights of not only scholars and academics, but creators of all manner."

The CIS press release is available here. The importance of this case is hard to overstate. It is only by reigning in overzealous, over-reaching, litigious, well-resourced copyright 'enforcers' that the boundaries of fair dealing and fair use can be protected. Congratulations to Professor Shloss and the CIS team.

IT glitch 'could hit elections'

Listening to the radio on the way back from Milton Keynes on Wednesday I heard this story about problems with the software that reads signatures on postal ballots. Given the periodic obsession of this blogger with evoting it won't be news to regular readers to hear I wasn't particularly surprised by the story. Leaving aside the general security problems with postal voting, the thing that jumped out at me from the story was the standard line from the central government spokesman - 'we have spent a lot of money on this, the vendors have assured us that the technology will work, now get on with it and stop moaning.' The local government spokesman intereviewed on the radio had two complaints. Firstly the technology doesn't work and secondly that because the technology doesn't work they'd have to get more people in to check the signatures manually. Well, as Roger Needham used to say, automation is about replacing something which works with something faster which doesn't quite work.

Biometrics: enabling guilty men to go free

I had reason to re-visit a wonderful post on Jerry Fishenden's blog this week which I thought I had noted here at the time he originally wrote it in August last year. Looking back through the logs though I can't seem to find it, so let me recommend: Biometrics: enabling guilty men to go free? Further adventures from the law of unintended consequences

It's a hypothetical about how ubiquitous sloppy use of biometric technologies will fatally undermine the credibility of even the most useful biometric techniques in the criminal justice system.

"Is it possible that the vital cornerstone of our criminal justice system - the forensics of DNA, of biometrics, from fingerprints, to voiceprints - could become too contaminated by the ubiquity of their acquisition and storage in computer systems to be regarded as any kind of evidence at all...

More and more organisations, more and more regimes, are demanding and storing our biometrics in more and more computer systems. We know no computer system is 100% infallible.

In a world where our biometrics are acquired and stored by all types of regimes and organisations, we must be rigorously analytical of the risks involved and where they may lead us. If we do not do so, I believe we run the risk of losing our best evidence, our best defence against organised and serious crime: the very opposite of what was intended. These are not outcomes we should countenance lightly...

We need to think very carefully indeed about where this simplistic belief that biometrics will be a universal panacea to issues of identity could lead. We know that the law of unintended consequences will always undermine our best intentions. And, if that were to happen, there would be no way this particular genie could ever be put back into the bottle. We only have the one set of biometrics, one set of DNA.

If these important issues are not thought through clearly, if we do not have a proper discussion - including of the international dimension - about the way in which biometrics and our DNA are acquired, stored and used, our ability to investigate and prosecute criminals based on forensic evidence could be lost forever."

Russian school principle to be retried on Microsoft piracy

The saga of the Russian headteacher accused of pirating Microsoft software has taken a new turn.

"A Russian court on Tuesday ordered a retrial of a school principal accused of installing pirated Microsoft software in school computers, court officials said. The case has been widely seen as a misguided attempt to crack down on software bootlegging.

The Perm regional court overturned a February ruling of a lower court to end the prosecution of Alexander Ponosov, said court spokesman Anatoly Sobolev. The lower court had said the case was insignificant."

The prosecution have insisted on pursuing the case despite it being thrown out as trivial the headteacher himself also wants a formal acquittal.

Damning report on EUCD

The European Commission released a damning report last month (ETD/2005/IM/D1/91) on the implementation and effect of Directive 2001/29/EC, the 2001 copyright directive and the EU's answer to the US Digital Millenium Copyright Act of 1998. It concludes:

"The Directive offers right holders in the European Union a higher level of protection than is required under the international treaties that bind the Member States...

The Directive’s rules on TPMs, probably the pièce de résistance of the entire Directive, deviate from the WIPO Treaties in two important respects. The nexus with copyright infringement that is essential to the WIPO regime has been mostly lost in the course of the adoption of article 6. This gradual drifting away from the copyright paradigm is reflected in the broad scope of the Directive’s definition of ‘effective technological measure’, which includes access control mechanisms. Not only does the European TPM regime go much further than is required by the WIPO Treaties, it is also out of step with corresponding laws of its main trading partners...

The standards set by the Directive regarding the rights of reproduction and communication to the public – both essential in the digital environment – have led to a satisfactory level of actual harmonisation of the laws in the Member States...

By contrast, the provisions on limitations and exceptions have not led to a similar result. Here, actual harmonisation has hardly been achieved...

The Directive’s rules on TPMs have had a modest harmonizing effect at best. Article 6(1) instructs Member States to offer ‘adequate legal protection’, without indicating the nature of such protection, thereby leaving States a broad spectrum of legislative solutions, varying from civil law to criminal law...

The broad definitions of restricted acts given by articles 2 and 3 of the Directive appear to have increased legal certainty for players in the online content industry. The Directive has left little doubt that, in principle, authorization must be sought for any type of digital use of copyright works or other subject matter, including the ‘file sharing’ over peer-to peer networks. The right of communication to the public that now includes an exclusive right of ‘making available’, serves as a powerful enforcement tool in the hands of right holders, both against infringing ‘file sharers’ and, more importantly, against ISP’s.

On the other hand, the combination of a broadly defined reproduction right and an equally broad right of communication to the public causes uncertainty about their interplay, especially when article 5(1) regarding incidental and transient copying is factored in. The overlap of both economic rights gives rise to confusion in the market place, and may result in unjust or inefficient licensing practices. Consultations with stakeholders have revealed that this overlap is not merely an academic problem, but that it has actually led to undue and unjustifiable ‘double payment’ to different right holders for unitary acts of exploitation, resulting in market distortions.

Article 5(1) is another source of uncertainty. In particular, the article’s requirement that a transient copy be without “independent economic significance” makes the line between infringing and non-infringing activities unpredictable...

Regarding TPMs, the vague wording of articles 6(1) and 6(2) of the Directive again leave much to be desired in terms of legal certainty. The wording of Article 6(4) is particularly convoluted and obscure. The provision fails to instruct Member States what ‘appropriate measures’ should be taken to protect disenfranchised users, or how long they should wait before taking action...

The sustainability of the Directive’s TPM regime is also highly questionable. In particular, it raises concerns regarding its compatibility with the two other existing legal regimes that prohibit the business of trafficking in illicit devices: those of the Computer Programs Directive and the Conditional Access Directive. Apart from its opaque wording, the ‘facilitation’ rule of article 6(4) lacks sustainability in that it is not formulated in technology-neutral terms. The rule immediately collapses as soon as content is delivered online and on-demand on agreed contractual terms...

The broad scope of the right of reproduction, which according to article 2 encompasses direct or indirect, temporary or permanent reproduction, by any means or in any form, in whole or in part, gives right holders near-absolute control over acts which in the off-line world were never the right holder’s prerogative...

While the substance and often broad wording of the limitations contained in the Directive may initially suggest a certain balance between the interests of rights holders and those of users, this superficial balance may be seriously undermined not only by the optional character of all but one limitations, leaving Member States discretion to arrive at ‘imbalanced’ legislative solutions, but also by the fact that they are not imperative and thus may be overridden by contract. This is exacerbated by the Directive’s failure to directly correlate the legal protection of TPMs with acts of copyright infringement. Thus the Directive fails to recognise that certain acts of circumvention may be done for entirely legitimate purposes. Moreover, it may serve as an incentive for the deployment of DRM for reasons well beyond the rationales underlying copyright protection"

The report comes in two parts, STUDY ON THE IMPLEMENTATION AND EFFECT IN MEMBER STATES’ LAWS OF DIRECTIVE 2001/29/EC ON THE HARMONISATION OF CERTAIN ASPECTS OF COPYRIGHT AND RELATED RIGHTS IN THE INFORMATION SOCIETY and The Implementation of Directive 2001/29/EC in the
Member States Part II. There is also an executive summary available.

Ireland pounces on school fingerprinting

From the Register: Ireland pounces on school fingerprinters. Glad to see my homeland is still capable of getting at least some of the basics right.