Friday, July 11, 2008

Sulston and Stiglitz on the dangers of unbalanced IP

John Sulston and Joseph Stiglitz recently shared a platform at the launch of Manchester University’s new Institute for Science, Ethics and Innovation and both warned of the dangers of unbalanced intellectual property laws and practices. From IP Watch:

"The basic framework of the intellectual property (IP) regime aims to “close down access to knowledge” rather than allowing its dissemination, Professor Joseph Stiglitz said at a 5 July lecture on “Who Owns Science?” Stiglitz, a 2001 Nobel Laureate in Economics, and Professor John Sulston, a 2002 Nobel Laureate in Physiology/Medicine, launched Manchester University’s new Institute for Science, Ethics and Innovation.

Both were highly critical of today’s patent system, saying it stifles science and innovation.

IP is often compared to physical property rights but knowledge is fundamentally different, Stiglitz said. It is a public good with two attributes - “non-rivalrous competition” and non-excludability - meaning it is difficult to prevent others from enjoying its benefits. That runs counter to IP regimes, which are worse than exclusion because they create monopoly power over knowledge that is often abused, he said...

Sulston said science can be driven by need and curiosity, which requires a substantial degree of openness and trust among players. Increasingly, however, the picture is one of private ownership of science and innovation, a situation welcomed by governments and investors who control the direction of research, he said. But the consequence is to funnel science into profitable areas and steer clear of those that will not make money, he said.

That trend has several consequences, including the neglect of research on diseases of the poor and the production of unnecessary drugs sold through high-pressure marketing, Sulston said...

Reversing the trend toward privatisation of science is critical, Sulston said. The world should concentrate on the survival and thriving of humanity, and exploration of the universe, he said. The outcome, he added, depends to a great extent on “who owns science.”"

ICO Data Sharing Review Report

The Data Sharing Review report by the Information Commissioner, Richard Thomas and Mark Walport, the Director of the Wellcome Trust is now available from the Justice Department.


Final report

The review's final report concludes that:

  • there is a lack of transparency and accountability in the way organisations deal with personal information
  • there is confusion surrounding the Data Protection Act, particularly the way it interacts with other strands of law
  • greater use could be made of the ability to share personal data safely, particularly in the field of research and statistical analysis
  • the Information Commissioner needs more effective powers, and the resources to allow him to use them properly.


The report makes a series of recommendations, aimed at transforming the personal and organisational culture of those who collect, manage and share information:

  • to improve leadership, accountability and training within organisations
  • to ensure all organisations are as transparent and open as possible about how and with whom data are shared, with what authority, for what purposes and with what protections and safeguards
  • to clarify and simplify the legal framework governing data sharing, including provisions to guarantee better and more authoritative guidance for practitioners
  • to introduce a new statutory procedure to remove unnecessary legal barriers, whilst maintaining robust privacy protections
  • to enhance the role of the Information Commissioner's Officer, providing more robust and properly-resourced powers
  • to develop mechanisms that will enable population-based research and statistical analysis for public benefit, whilst safeguarding the privacy of individuals
  • to help safeguard and protect personal information held in publicly available sources.

You can obtain a hard copy of the report by contacting the review team.

Patent law US style

Amusing short video about how patent law works in the US:

Vendor misinformation in the e-voting world

Dan Wallach has been testifying before the Texas House Committee on Elections. He explains his disappointment with the process at Freedom to Tinker.

Thursday, July 10, 2008

Patry on Fair Use

William Patry has a must read post on fair use for IP geeks, in connection with the criticism by the head of the Copyright Alliance of the release of a code of best practices for online video from a very prestigious group of scholars.

Data Breach Caused by File Sharing

Thanks to Michael Geist for the pointer to this story from the Washington Post: Justice Breyer Is Among Victims in Data Breach Caused by File Sharing

"Sometime late last year, an employee of a McLean investment firm decided to trade some music, or maybe a movie, with like-minded users of the online file-sharing network LimeWire while using a company computer. In doing so, he inadvertently opened the private files of his firm, Wagner Resource Group, to the public.

That exposed the names, dates of birth and Social Security numbers of about 2,000 of the firm's clients, including a number of high-powered lawyers and Supreme Court Justice Stephen G. Breyer."

And this: Dutch chipmaker sues to silence security researchers

"Dutch chipmaker NXP Semiconductors has sued a university in The Netherlands to block publication of research that details security flaws in NXP's Mifare Classic wireless smart cards, which are used in transit and building entry systems around the world."

Senate give telcos immunity for mass wiretapping

Well the US Senate has followed the House's lead in passing a law to give retrospective immunity to all the telecommunications companies which actively took part in the Bush administration's mass unconstitutional wiretapping.

"The Senate approved and sent to the White House a bill overhauling controversial rules on secret government eavesdropping today, bowing to President Bush's demand to protect telecommunications companies from lawsuits complaining they helped the U.S. spy on Americans...

The long fight on Capitol Hill centered on one main question: whether to shield from civil lawsuits any telecommunications companies that helped the government eavesdrop on American phone and computer lines without the permission or knowledge of a secret court created by the Foreign Intelligence Surveillance Act.

The White House had threatened to veto the bill unless it immunized companies such as AT&T Inc. and Verizon Communications Inc. from wiretapping lawsuits. About 40 such lawsuits have been filed, and all are pending before a single U.S. District court...

Just under a third of the Senate, including Democratic presidential candidate Barack Obama, supported an amendment that would have stripped immunity from the bill. They were defeated on a 66-32 vote. Republican rival John McCain did not attend the vote.

Obama ended up voting for the final bill"

Update: Larry Lessig has now shared his views on Obama's change of tack on the telcos immunity. Actually he shared his view that it was "swiftboating" a few days ago not too long after I was wondering what his thoughts on the matter were.

EU study on counterfeiting and piracy

The EU Parliament recently published an interesting study, The Fight Against Counterfeiting and Piracy in the Bilateral Trade Agreements of the EU.

Yes I realise it is unlikely to appeal to anyone outside IP geekdom and not likely to endanger J.K Rowling's place in the bestseller lists but it does make some really sensible recommendations. Here's the Executive Summary:

"Concerns about counterfeiting and piracy are becoming increasingly
widespread and have now taken on an international dimension. Higher
standards of intellectual property protection are being set multilaterally and
through the inclusion of intellectual property provisions in bilateral trade
agreements. The EU Strategy for the Enforcement of Intellectual Property
Rights in Third Countries has undertaken to revisit the approach to the
intellectual property rights chapter of bilateral agreements, including the
clarification and strengthening of the enforcement clauses. This approach
should be reconsidered in the light of on-going negotiations on bilateral trade
agreements with a number of trading partners such as Korea, India, and
ASEAN, while negotiations on bilateral trade with Ukraine and Russia are also
being considered. If the Lisbon Treaty on the Functioning of the European
Union (TFEU) comes into force, the European Parliament will have a
significantly enhanced role to play in the negotiation of such agreements,
including the power of veto. In scrutinising and giving consent to agreements,
it is recommended that the European Parliament takes account of the
following: (1) if intellectual property enforcement provisions are to be included
in agreements, this must be done on the basis of adequate evidence on the
level of counterfeiting and piracy and its effects; (2) intellectual property rights
are private rights and the main responsibility for taking measures to protect
and enforce intellectual property rights should lie with individual right holders;
(3) the European Parliament should consider carefully the need to balance
flexibilities in the TRIPS Agreement with the need for additional provisions in
bilateral agreements to fight counterfeiting and piracy; (4) agreements that
contain provisions on recourse to bilateral dispute settlement mechanisms risk
weakening the multilateral dispute settlement system; (5) provisions in
agreements that expand the scope of border measures to cover exports as
well as goods in transit or transhipment should not be unnecessarily
burdensome and should be subject to the availability of judicial review; (6) the
European Parliament should encourage the EU to undertake needs
assessments in third countries to ensure that adequate and appropriate
technical and financial cooperation is made available on mutually agreed
terms and conditions in order to assist with the training of police, customs
officers, judiciary and other government officials; (7) it would be advantageous
to establish a parliamentary forum or an inter-parliamentary observatory to
monitor and assess the impact of bilateral agreements in the fight against
counterfeiting and piracy."

Well done to Dr. Duncan Matthews at Queen Mary College who produced the study for the Policy Department of the Directorate-General for External Policies of the Union. I wonder how many people know there is such a thing as the Policy Department of the Directorate-General for External Policies of the Union?

Wednesday, July 09, 2008

Patenting indigenous plants

On hearing I had an interest in intellectual property recently, a South American friend told me I should look up the story of the trade dispute over a 1986 US patent in an Amazonian plant called ayahuasca. The plant is considered to be a sacred source of food and medicine by many of the indigenous peoples in the Amazon basin. Here is an outline of the story from the Biopark website:

"Ayahuasca is a traditional medicine central to the lives of indigenous peoples throughout the Amazon river basin. Almost a decade ago, Loren Miller of the International Plant Medicine Corporation applied to the US government to be recognized as the "inventor" of ayahuasca. Although ayahuasca has been produced and used by Amazonian peoples since time immemorial, the US Patent and Trademark Office agreed to grant Miller a patent, a form of intellectual property that conveys exclusive rights to produce and trade the patented item, at least within the country where the patent is granted.

Currently, the patent on ayahuasca applies only to a few western countries, including the U.S.. However, when Amazonian peoples first learned about the patent in the summer of 1996, the Ecuadorian government was considering entering into a trade agreement with the U.S. that would have led to patents granted in the US being extended to Ecuador. Although popular organizing by indigenous peoples and environmentalists temporarily defeated that trade deal, the threat remains that some day the patent on ayahuasca may be recognized and enforced in the Amazon, leading to restrictions on indigenous peoples' use of their sacred plant.

And regardless of whether or not this threat ever turns into reality, granting a foreign corporation intellectual property rights over ayahuasca represents a direct denial of indigenous peoples' rights over their own knowledge and innovation. As stated by COICA, the coordinating body for indigenous peoples' organizations in the Amazon region, "ayahuasca is a fundamental ingredient of the religious ceremonies and of healing for our people, and this patent is a real affront to the over four hundred cultures that populate the Amazon Basin.""

Eventually the US Patent and Trademark Office overturned the patent in 1999 on the basis of prior art. For the academically inclined some further information on the story can be found in Fecteau, L.M. (2001). The ayahuasca patent revocation: Raising questions about current US patent policy. Boston College Third World Law Journal. 69, 74-75.

I believe the patent was reinstated in 2001 following an appeal by the patent holder. I assume it lapsed in 2006? But if anyone knows better do let me know.

Fact checking Viacom's PR on YouTube order

Pamela Jones at Groklaw has been fact checking Viacom's back-peddling PR after the negative reaction to the company following a New York judge's order last week that Google hand over the IP addresses of all YouTube users.

" Viacom has a statement on its site now about the YouTube litigation it probably hopes will reassure you. Leaving out the anti-Google trash talk, it reads like this:
A recent discovery order by the Federal Court hearing the case of Viacom v. YouTube has triggered concern about what information will be disclosed by Google and YouTube and how it will be used. Viacom has not asked for and will not be obtaining any personally identifiable information of any YouTube user. The personally identifiable information that YouTube collects from its users will be stripped from the data before it is transferred to Viacom. Viacom will use the data exclusively for the purpose of proving our case against You Tube and Google.

Viacom has been in discussions with Google to develop a framework to share this data. We are committed to a process that will not only comply with the Court’s confidentiality order, but that will also meet our commitment to the strongest possible internet privacy protections.

That's some progress, if it's true, the part about Google redacting it first. But what's that part about Viacom didn't ask for it? They say the same thing on their homepage, where you can see this questionably true statement:

Viacom has not requested any personally identifiable information from YouTube as part of the litigation.

Say what? I think it would be more truthful to say that they *did too* ask for it, Google asked them to let them redact, Viacom saw the public's reaction, and so it agreed. I gather Viacom has noticed that a lot of consumers, as they view us human beings, seriously hate Viacom's guts because of this over-the-top litigation.

Viacom may think they can say whatever they wish about what they asked for, since the details of their motion to compel were filed in a sealed memorandum. But we're not stupid, and we can read the Order, where the judge tells us what Viacom asked for...

I think they meant to say, we asked for everything we could think of, and now we're sorry we did it, because you hate us now."

I'm not going to dissect the order regarding what Viacom did or didn't ask for since Ms Jones does that very nicely. I will remind you what the judge ordered, however:

"(3) The motion to compel production of all removed videos is granted;
(4) The motion to compel production of all data from the Logging database concerning each time a YouTube video has been viewed on the YouTube website or through embedding on a third-party website is granted...
(7) The motion to compel production of the schema for the Google Video Content database is
granted; "

There is quite a lot of material in YouTube video content that constitutes 'personally identifiable information', including a proportion of those videos that were removed from YouTube that Google now has to hand over to Viacom.

In addition there is quite a lot of 'personally identifiable information' in the collection of 'all data from the Logging database concerning each time a YouTube video has been viewed on the YouTube website or through embedding on a third-party website' that Google has also been ordered to hand over to Viacom.

It is a bit of a stretch to ask us to believe that "Viacom has not requested any personally identifiable information from YouTube as part of the litigation" and that the judge just spontaneously decided that such information should be extracted from Google and passed to Viacom for no reason. Fortunately we can look at the evidence and deduce that the Viacom PR merchants are being economical with the truth. Sadly even the most compelling evidence of falsehood is often not enough to convince people about what has happened. The temporary negative reaction to Viacom will pass and the Google order will be forgotten, since these things are too ethereal for our world of short attention spans to pay attention to for very long.

Thanks to Glyn via the ORG list for the pointer.

Justice can't be done in secret

I recommend Damiel Finkelstein's article in the Times today, Justice can't be done in secret. And here's why

"This week in times2, my colleague Camilla Cavendish has been telling some terrible stories of children taken from their parents without good reason and adopted against their will, never to be returned. And all in secret. Not a word to be published...the secrecy is a scandal.

On April 19, 1989, a young woman jogging in Central Park, New York, was attacked. That understates it. She was brutally beaten and raped...

About ten years after being sentenced for his part... Kharey Wise met a man in prison, another New York rapist, called Matias Reyes. And the more Reyes got to think about it the sorrier he felt for his new friend. For Reyes knew something that the police and the courts did not... The confessions were coerced, as the young men had claimed for years. How did he know it? Because he, Matias Reyes, had really raped and beaten the Central Park Jogger... he moment that Reyes confessed, it was clear that he was indeed guilty. His DNA was linked to the rape...

Yet the prosecution lawyer in the original case refused to accept this. She was furious. She stridently opposed the finding of the DA. So did the New York Police Department. They convened a panel that concluded that the police had done nothing wrong...

It is commonly thought that we have theories and that they are tested by the facts. The opposite is true. We have theories and then we strive mightily to fit the facts into them, ignoring those that don't quite work or reinterpreting them if we have to. The more we have at stake emotionally, the more pressing this task becomes."

I'm sure few people understand this as well as Shirley McKie and her family. As Michael Russell says:

"There can now be no doubt at all that the evidence offered against Shirley by the authorities at the time of her trial was false. There were no possible grounds for believing that the fingerprint at the crime scene was hers. That has been attested to by finger print experts from across the world...

Over recent months and years both Shirley’s father, Iain, and myself have written on many occasions to the Lord Advocate (Scotland’s Chief Prosecutor) and to the Scottish Justice Minister . We both became increasingly frustrated at the total lack of response to our enquiries.

Throughout this case, it has become obvious that political pressure coupled with media attention, are the most effective weapons when democratic institutions become arrogant or defensive.

I am still concerned that the oppressive and unjustified police behaviour against Shirley at the time of her arrest and subsequently has not yet been explained, still less apologised for. Responses to me from Strathclyde Police have been evasive and unsatisfactory.

There is also little sign that the question of possible perjury by witnesses at the trial is being seriously addressed. Nor is there any official willingness to acknowledge that Ms McKie suffered unjust treatment at the hands of the Scottish Criminal Records Office. Without an apology there can be no real acknowledgement of what has actually happened, nor any real possibility of moving forward.

In addition there must be substantial concern, given what has discovered over the past months and years, that there may be other cases in which SCRO has dealt with tainted evidence."

Shirley's father, Iain, was tremendously helpful when I wanted to include her story in my book as a seminal example of how badly things can go wrong when experts make mistakes and the system, within which those experts operate, closes ranks and refuses to acknowledge and make recompense for them, in spite of overwhelming evidence.

Essentially, then, it can be incredibly difficult to get through to people who don't want to know and the resultant consequences are often appalling.

Tuesday, July 08, 2008

42 days

I have refrained from commenting on the 42 day detention without charge period that the UK House of Commons voted for on 11th June, 2008.

The Independent reports that members of the House of Lords are starting an attack on the
measure today. In addition Liberty have launched a 'say no to 42 days' charge or release campaign.

Of all the news commentary, political excuses etc. I've been through on this, one of the best remains a simple message to the ORG list from a Martin Coxhall the day after our political representatives made such a reprehensible decision:

"Canada - 24 hours
South Africa, New Zealand and Germany - 2 days
Denmark and Norway - 3 days
Italy - 4 days
Russia and Spain - 5 days
France - 6 days
Ireland - 7 days
Turkey - 7.5 days
Australia - 12 days.
USA - 2 days


UK - 42 days."

It is the 60th anniversary of the signing of the Universal Declaration of Human Rights(UDHR) on 10th December this year. It's hard to imagine the contempt that Eleanor Roosevelt - who lead the UDHR drafting commission and as a direct result of that work became one of the few people in history to receive a standing ovation from the UN General Assembly - would feel for modern politicians on both sides of the pond (the US 2-day pre-charge detention period doesn't apply to Guantanamo Bay) and the damage they have done to civil rights worldwide.

Update: The former head of MI5, Baroness Manningham-Buller has, much to the disgust of government ministers, used her maiden speech in the House of Lords to oppose the 42 day detention without charge period. She said (scroll down to 'column 647'):

"On a matter of principle, I cannot support 42 days’ precharge detention. I don’t see on a practical basis, as well as a principled one, that these proposals are in any way workable."

MEPs back telecoms package with 3 strikes amendment

The BBC is reporting that MEPs have voted in favour of the telecoms package with the 800 amendments relating to everything from online privacy invasion to lack of due process banning people from the internet for suspected copyright infringement.

You'll recall that the IMCO (Committee on Internal Market and Consumer Protection) and the ITRE (Committee on Industry, Research and Energy) were considering the package yesterday. There are no direct details from either of these committees yet to see what exactly was discussed or agreed.

UK Conservative MEP
Malcolm Harbour has been rolled out to explain how dismayed the MEPs are at the misunderstanding of their intentions. He made a heartfelt plea to be seen to be working towards protecting and improving internet users rights and claimed that this was what the telecoms package was really about.

The IMCO committee is chaired by UK Labour MEP Arlene McCarthy. Now why am I putting those two names together in the recesses of my mind with an IP expansionist agenda? Well it could be because Harbour and McCarthy were a couple of the prime movers, along with rapporteur Janelly Fourtou (wife of Jean-Rene Fourtou, CEO of Vivendi Universal), behind fast tracking the intellectual property rights enforcement directive in 2004? Isn't that nice - Labour and Conservative working in harmony.

They failed at the time to get the absolute worst excesses of the original draft of that directive through - which would have included provisions to jail teenagers (and the managers of the ISPs they used) for swapping songs on the Net - but they are working hard on getting these included in the second IPR enforcement directive, coming to the EU and a member state near you very soon.

McCarthy incidentally was the rapporteur who drove the software patents directive to the edge of implementation too. Software patent anoraks will recall that there were several attempts to slip that one through the agriculture and fisheries committee without discussion.

I presume, therefore, I can be forgiven for not accepting at face value statements from Mr Harbour that he's really looking out for the interests of ordinary Internet users when he supports complex legislative monsters like the telecoms package and its inherent regulatory timebombs. He may even be sincere in that belief but he needs to realise that the interests of agents (commerce), creators and the public are not exactly aligned or coincident though they do sometimes overlap.

Update: Lilian at least is feeling cheered by Mr Harbour's assurances.

Code of Best Practices in Fair Use for Online Video

After the Google v Viacom decision last week, here's a timely release of a code of best practices for online video from a very prestigious group of scholars, via the Center for Social Media.

"Remixes, mashups, fan tributes and other creative work burgeoning in online video often use copyrighted material without permission or payment. When is it fair to do so? In many cases, creators can employ fair use, a key feature of copyright law. Today marks the release of the Center’s newest publication, the Code of Best Practices in Fair Use for Online Video. Our latest effort in promoting fair use practices among media makers, the code focuses on the still-evolving world of online video, and will help to protect creators from automatic censorship that results from copyright filtering.

The Code of Best Practices in Fair Use for Online Video was written collaboratively with a committee of legal and media scholars, and was coordinated by Pat Aufderheide and Peter Jaszi of American University. Our acclaimed committee of writers includes:

  • Michael C. Donaldson, Esq., Los Angeles
  • Anthony Falzone, lecturer, executive director, Fair Use Project, Stanford Law School
  • Lewis Hyde, Richard L. Thomas Professor of Creative Writing, Kenyon College; fellow, Berkman Center for Internet and Society, Harvard University
  • Mizuko Ito, research scientist, School of Cinematic Arts, University of Southern California
  • Henry Jenkins, professor, program head, comparative media studies, Massachusetts Institute of Technology
  • Michael Madison, associate dean for research, associate professor of law, University of Pittsburgh School of Law
  • Pamela Samuelson, Richard M. Sherman Distinguished Professor of Law and Information, University of California, Berkeley
  • Rebecca Tushnet, professor, Georgetown University Law Center, Georgetown University
  • Jennifer Urban, clinical associate professor of law; director of Intellectual Property and Technology Law Clinic, University of Southern California

The goals of the code are to clearly establish what constitutes fair use in online video, and to reach out to creators and copyright holders alike to create a common awareness of what kind of quoting is legal and illegal. This can only be accomplished through participation — by spreading the word to your users, you can help to protect this emerging culture."

Monday, July 07, 2008

Naughton on Zittrain

John has done a terrific review of Jonathan Zittrain's new book, The Future of the Internet and How to Stop It, at Management Today.

"Life without this digital ecosystem is now unthinkable - as Estonia discovered when it underwent a savage cyber-attack a year ago. And yet the very features that have made the internet such a creative force in our societies now threaten its future - as citizens, governments and corporations, exasperated or terrified by online mayhem, combine to 'lock down' and regulate the network. Such a future - if it came about - would implement an Orwellian nightmare of comprehensive surveillance and perfect enforcement. It might also strangle the technological goose that has laid so many golden eggs. And it will happen, unless we take avoiding action...

Zittrain's great insight is that the combination of the personal computer and the open internet created what he calls a 'generative system'. He defines generativity as 'a system's capacity to produce unanticipated social change through unfiltered contributions from broad and varied audiences'. In other words, an endless capacity for springing surprises...

The beauty of The Future of the Internet is that it's an ideal primer for the debate that we now need to have about all this."

Europe votes on anti-piracy laws

The BBC has picked up on the EU telecoms package vote which treatens to incorporate 3 strikes copyright rules by the back door.

Corruption of the EU policymaking process?

Given that the telecoms framework legislative package, with its secret 3 strikes copyright amendments, is being considered by two important EU committes today (the IMCO (Committee on Internal Market and Consumer Protection) and ITRE (Committee on Industry, Research and Energy) committees for the EU anoraks amongst you), it is perhaps unsurprising that Phillipe Aigrain takes the opportunity to rail against what he perceives to be corruption of the policymaking process in the EU. Monsieur Aigrain dedicates the post to Larry Lessig and his change Congress initiative.