One million on the terrorist watch list?

Via FIPR, from Paul Craig Roberts at AntiWar.Com: One Million Terrorists?

"The Bush Regime's "terrorist" protection schemes have reached the height of total incompetence and utter absurdity. According to the American Civil Liberties Union...

One of them is that of former Assistant US Attorney General Jim Robinson, whose top security clearances are current...

What confidence can we have in a regime that is incapable of differentiating an Assistant US Attorney General from a terrorist?

Mr. Robinson said: "If I were convinced that America is a safer place because I get hassled at the airport, I might put up with it, but I doubt it. I expect my story is similar to hundreds of thousands of people who are on this list and find themselves inconvenienced."

"Hundreds of thousands of people" on a watch list that they have no business being on?

[...]

How can Airport "Security" possibly protect anyone when the idiots cannot differentiate a high level American government official from a terrorist?

[...]

The morons who comprise the US government call the "watch list" one of the government's "most effective tools in the fight against terrorism.""

You do wonder what the founding fathers would have made of it.

Update: The TSA say the suggestion that there might be so many on a watch list is a myth. Isn't it great that the TSA has a blog, even though it is making claims like:
"Once TSA's Secure Flight initiative is in place the number of misidentifications will be GREATLY reduced."

Telecoms package and copyright - some MEP views

I wrote to my MEPs last week about the vote on the complex telecoms package in the EU's IMCO and ITRE committees, particularly noting that several amendments might facilitate the coming of a 3 strikes mandate.

I've had several responses including one this morning from Conservative MEP, James Elles, who kindly sent me a summary of the views of Malcolm Harbour MEP, Conservative Spokesman on the Internal Market and Consumer Protection. Mr Harbour was also the proposer of some of the amendments which raised concerns. His views, as passed on by Mr Elles are as follows:

"Summary of reply from Malcolm Harbour MEP, Conservative Spokesman on the Internal Market and Consumer Protection:

Thank you for your e-mail concerning certain aspects of the Telecoms reform package, which is now going through the European Parliament.

I wanted to update you following the vote on July 7th in the Parliament's Internal Market and Consumer Protection Committee, which produced a very large majority in favour of a series of amendments that significantly enhance users´ rights in electronic communications. Some of the key points are summarised below:

· Users will now be informed by operators, before contracts are concluded, about any restrictions on access to services (such as Skype).

· Market demand and competition between operators will decide whether they see any point in restricting access. The IMCO vote does not give governments new powers to decide that, or to make applications illegal.

· Where handsets or other terminal equipment are included free, or at a subsidised price, users must be informed of the cost of terminating their agreement early.

· Number porting (the process of keeping a number when switching networks) will now take one day (while it has previously taken up to one month). However, there are also provisions in case of slamming (when a consumer is switched to another network without their consent) which will allow NRAs to intervene in such cases.

· Promotion of the European 112 emergency call number across the EU, and measures to speed up the availability of mobile caller location when emergency calls are made. This is complementary to existing national emergency numbers.

· Disabled users will have equivalent access to communications with special terminal equipment for their needs.

· The need to keep the Internet open by empowering regulators to intervene if a carrier discriminated against a particular service provider - for example, by blocking or slowing traffic.

· Regulators would be given enabling powers to allow standardised public service messages to be delivered to users. These service messages could include security protection advice, and advice on harmful or unlawful uses of the Internet, and their potential consequences. The information would be sent to all users, not to targeted individuals and not based on individual usage. Copyright infringement is just one of the areas that might be covered, but it will be up to public authorities to supply the information.

· Under Parliament's rules, the Committee also accepted, without a vote, a set of amendments from the Civil Liberties Committee on data protection. These include significant new requirements for operators to inform subscribers in the event of any breach of their personal data through electronic networks

The level of cross party support confirm that MEPs totally reject the claims that these amendments are intended to reduce consumer choice and undermine individual freedom. In particular, the Directive contains no provisions on Copyright Law enforcement, not does it refer, in any way, to the French Government's proposed enforcement agreement. MEPs will examine the detailed drafting of all amendments before the final approval by Parliament in September.

Malcolm Harbour MEP 08 July 2008"

I've responded further to Mr Elles as follows:

Dear Mr Elles,

Thank you for your response and the copy of Mr Harbour's views.

I would just point out that one of Mr Harbour's own proposed amendments to the telecom package would require national regulatory authorities to "oblige" telcos/ISPs (Internet service providers) "to distribute public interest information to existing and new subscribers when appropriate" warning about the infringement of copyright. Another of Mr Harbour's amendments requires national authorities to "promote cooperation" between ISPs and "services and the sectors interested in the protection and promotion of lawful content".

In addition your colleague, Syed Kamal, has proposed an amendment which essentially says regulatory authorities should not mandate one digital rights management (DRM) technology at the expense of available market alternatives.

I'm sure Mr Harbour is sincere in his belief that "the Directive contains no provisions on Copyright Law enforcement" but it is quite difficult to see how copyright spam, mandated cooperation between ISPs and rights holders, and drm are not about copyright.

Thanks again for taking the time to read and respond to my correspondence.

Regards,

Ray Corrigan

As I've said before, though, Lilian Edwards has been reassured by Mr Harbour's assertion that amendments were not intended to lead to a 3 strikes mandate in member states.

In summary the responses from other MEPs were as follows:

Independent Ashley Mote is voting against the telcoms package. Nigel Farage of UKIP sees the EU as "inherently, irreformably and dangerously un-democratic and anti-democratic" and Andrew S Reed who responded on Mr Faragee's behalf is sure he shall vote as I would wish.
Cath Miller, Constituency Coordinator and Researcher for Caroline Lucas of the Green Party, produced the most comprehensive response as follows:

"Dear Ray,

Thank you for your email about this week’s vote on the Telecom Universal Service Directive in the European Parliament’s Internal Market and Consumer Protection Committee. Caroline has asked me to respond on her behalf.

She does not sit on this committee but other members of the Green Group do, so have been working hard to ensure that any adopted text guarantees citizen’s rights. Greens tabled an amendment requiring ISPs to ensure that subscribers can send and receive any form of content. We do recognise that in some extreme circumstances it might be necessary for ISPs to take action to preserve the integrity and security of the networks, but argue that this provision must relate only to network management i.e restrictions intended to avoid degradation or slowing of traffic in networks.

The compromise legislative text does state that ISPs do not have the right to monitor or block traffic on the internet. However, elsewhere it is made clear that the public should be informed about any activities that are unlawful. Caroline has serious concerns about the way this aspect of the legislation could be interpreted. For example who determines what constitutes lawful or unlawful activity? She does not agree that such definitions should be developed at EU level, arguing that national definitions might be more appropriate. Further, the purpose of warning users about unlawful activity is designed to create the circumstances in which restricting use is permissible, along the lines of the French ‘three strikes and you are’ out model.

Caroline’s work on the International Trade Committee has involved looking at issues such as file sharing and the fact that stealing a television, for example, is very different to ‘stealing’ a film from the internet, because the latter does not deprive others in the same way. She believes that alternative ways to support artists, writers and so forth must be developed, alongside a far more open policy of sharing music, film, software etc via the internet. This has relevance to the Telecom vote and the Green Group will be urgently discussing whether to support the Directive when it comes to plenary after the summer recess. Caroline thinks we need amendments that clarify the text by removing the vague and dangerous concept of "lawful", as it does not belong in the telecom package, and that seek to keep real net neutrality.

Greens submitted successful amendments that require ISPs to provide information to subscribers annually about more competitive tariffs and that promote an overall maximum contract periods of 24 months, with a 12 month maximum always offered. The main thrust of the Directive is to open the telecommunications market to competition and Greens have supported measures to separate the ownership of telecoms infrastructure and service provision, as we argue this is the only way to guarantee true market liberalisation from which consumers can benefit.

Caroline is confident that this Directive has been properly scrutinised and that it has not been ‘sneaked through’ as some critics are arguing. Green MEPs have been actively following its progress since the Commission’s proposals were first published in 2007 and the text has been the subject of focused work in committee since April of this year. It is now likely to come before plenary in September after the parliamentary recess.

Please be assured that when some members of the Culture and Education Committee sought to give ISPs a policing role in previous legislation, these efforts were rigorously and successfully resisted by Green MEPs. We were also at the forefront of the campaign to oppose software patenting and won support from the Parliament – see http://www.greens-efa.org/cms/topics/dokbin/102/102955.save_our_software@en.pdf

Green views on the Telecom Directive do vary but are in favour of the maximum free flow of information and ideas on the internet and against any indiscriminate restriction of the use of the web.

Thank you for taking the time to write to Caroline.

Kind regards,

Cath.

Cath Miller

Constituency Coordinator and Researcher

Office of Dr Caroline Lucas"

Ms Miller's point about that "we need amendments that clarify the text by removing the vague and dangerous concept of "lawful", as it does not belong in the telecom package, and that seek to keep real net neutrality" is well made. Requiring ISPs to determine what is "lawful" and implement architectural measures to deal with that interpretation is untenable. I do, however, lack Dr Lucas's confidence that this legislative monster has been properly scrutinised.

I've had no response to date from Baroness Nicholson of Winterbourne MEP (Lib Dems), Sharon Bowles MEP (Lib Dems) or Peter Skinner MEP (Labour).

World of Warcraft: You Bought It, But You Don't Own It

Reaction to the Blizzard v MDY decision from Corynne McSherry at the EFF:

"In a devastating blow to user rights, an Arizona federal court has ruled that consumers can be guilty of copyright infringement if they violate the end user license agreement ("EULA") that comes with the software--even where the so-called "violation" is specifically excluded from copyright liability. Why? Because those protections only apply if you own the software you buy--not if you license it. Stunningly, this means that "cheating" while playing a computer game can expose you to potentially huge statutory damages for copyright infringement.

As we noted back in May, Blizzard Entertainment, the company that makes the hugely popular massively multi-player online role-playing game World of Warcraft, sued Michael Donnelly, the developer of Glider, a program that helps WoW users raise their character level to 70 by "playing" for the user. Blizzard said that because the license agreement forbids using Glider with WoW, Glider users are committing copyright infringement when they load copies of WoW into RAM in order to play the game, and Donnelly is illegally contributing to that infringement...

Sadly, the court ... held that because Blizzard says the software is licensed, and because it imposes restrictions on use ... that means that users who violate the EULA could be on the hook for copyright damages... as high as $150,000 per infringed work. Most disappointing, the court gave short shrift to the absurd policy consequences of treating users who violate a contract as copyright infringers. The logical implication of the holding is that any time you buy software, be it film editing software, accounting software, iTunes, Skype, etc., software owners can always use license agreements to prevent you from ever having full control over your software and taking advantage of standard copyright limitations (such as the right to sell your copy [Section 109 of the Copyright Act] or the right to make copies necessary for use of the software [Section 117]). You can buy it, but you can’t own it."

Update: Via Michael Geist, Information Week had a report on the case yesterday. The report references William Patry's reaction to the decision.

"The court's holding on the copyright claims compares very unfavorably to its handling of the DMCA claims, permitting a chilling extension of control by copyright owners of software over copies of programs they have sold. The critical point is that WoWGilder did not contributorily or vicariously lead to violating any rights granted under the Copyright Act. Unlike speed-up kits, there was no creation of an unauthorized derivative work, nor was a copy made even under the Ninth Circuit's misinterpretation of RAM copying in the MAI v. Peak case. How one might ask can there be a violation of the Copyright Act if no rights granted under the Act have been violated? Good question.

To get to its result, the court had to first find that WoW, even though sold over the counter, was licensed not sold... There was in fact no provision in the license that barred use of WoWGlider. The court took the extraordinary step of stitching together two unrelated provisions to create one. You have to read it to believe it, but it took the court 8 pages to go through this hard work, and why? Was the court offended by what it regarded to be cheating? If so, God help us if law is being reduced to such subjective, non-statutory grounds."

EU propose extension in copyright term

Well the EU has not been slow about following up on Charlie McCreevy's promise to extend the term of copyright in sound recordings. From Europa:

"The Commission adopted a proposal to extend the term of protection for performers and sound recordings to 95 years. The aim of the proposal is to bring performers' protection more in line with that already given to authors - 70 years after their death. The extended term will enable performers to earn money for a longer period of time and in any event throughout their lifetime. The income from copyright remuneration is important for performers, as they often do not have other regular salaried income. The extended term will also benefit record producers who will generate additional revenue from the sale of records in shops and on the internet. This should allow producers to adapt to the rapidly changing business environment and help them maintain their investment levels in new talent.

The proposal also contains accompanying measures which aim specifically to help performers. The 'use it or lose it' clauses which will now have to be included in the contracts linking performers to their record companies will allow performers to get their rights back if the record producer does not market the sound recording during the extended period. In this way the performer will be able to either find another record producer willing to sell his music or do it himself, something that is possible easily via the internet. In case neither the performer nor the producer would wish to market the recording, the recording would no longer be protected. In this way, the term extension would avoid 'locking up' those recordings that are not commercially interesting. Finally, record companies will have to set up a fund into which they will have to pay 20% of their revenues earned during the extended period. The money from this fund will be destined to help session musicians."

The press release justifying the move is here and the actual proposal for an EU directive (amending Directive 2006/116/EC on copyright term) is here. Let's be clear here - there is absolutely no economic justification for the extension of copyright term in sound recordings. Anyone who can do a simple discounted cash flow calculation can demonstrate that. The proposal says:

"The proposal aims to improve the social situation of performers, and in particular sessions
musicians, taking into account that performers are increasingly outliving the existing 50 year
period of protection for their performances.

The large scale production of phonograms is essentially a phenomenon that commenced in the
1950s. If nothing is done, over the next 10 years an increasing amount of performances
recorded and released between 1957 and 1967 will lose protection. Once their performance
fixed in a phonogram is no longer protected, around 7000 performers in any of the big
Member States and a correspondingly smaller number in the smaller Member States will lose
all of their income that derives from contractual royalties and statutory remuneration claims
from broadcasting and public communication of their performances in bars and discotheques.
This affects featured performers (those who receive contractual royalties) but especially the
thousands of anonymous session musicians (those who do not receive royalties and rely solely
on statutory remuneration claims) who contributed to phonograms in the late fifties and sixties
and have assigned their exclusive rights to the phonogram producer against a flat fee payment
('buy out'). Their 'single equitable remuneration' payments for broadcasting and
communication to the public, which are never assigned to the phonogram producer, would
cease."

If the aim really is to "improve the social situation of performers, and in particular sessions musicians" how are these sessions musicians going to be helped by an extension of copyright term when they "do not receive royalties" and "have assigned their exclusive rights to the phonogram producer against a flat fee payment ('buy out')." Yes they may have access to extended "'single equitable remuneration' payments for broadcasting and communication to the public" but wouldn't it be much better to set up a pension scheme for such musicians? A plumber who fixed a tap in 1958 does not get a perennial income on that job. And certainly does not get to extend that income for another 45 years just because a deal he might have signed up to in the 1950s is running out. The main beneficiaries of extension of copyright term are the commercial organisations and still popular artists who hold copyrights in commercially valuable recordings from the 1950s and 60s, not the sessions musicians that the proposal claims to be aimed at.

By all means support sessions musicians with proper pension funds but do not do so by handing large quantities of money to small numbers of commercial or wealthy entities in the hope that some of the pennies may find their way to the people who really need them. The Times headlines the proposal today: Sir Cliff Richard pins hopes on law that will keep cash rolling in until he’s 113

Update: And so says the BBC: Veteran rockers set for windfall and Ars Technica and many others. Nate Anderson at Ars Technica sums up the smoke and mirrors PR nicely:

"The whole bizarre debate never seems to haul itself around to addressing the fact that everyone who participated in the current system did so knowing about the 50-year term; no one is in danger of "losing" anything they were once promised, and they've had half a century to plan for the future."

Because that's what we've always done

This Slideshare story is so true to life:

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Why Educational Change is Hard

Chris Lehmann has some thoughts on why educational change is hard and the limits of "Here Comes Everybody" for schools.

"So there are a couple of questions that we can examine through Shirkey's lens, then... first, why is it that schools are so hard to transform using these tools when commerce (for instance) has been so easy to change? And second, what has to happen within the community of folks -- loose as it may be -- who care about the notion of 21st Century schools.

So why is it that the changes that are taking root in so many other aspects are not changing education as quickly as we'd like? One of the things that Shirkey writes about is how the new social tools and the powerline graph of user use / success / downloads / etc... has meant that there is no longer a high cost of failure... On an institutional level, schools have an incredible infrastructure that makes them hard to change, but that's really not the big problem when we question the change through this lens.

The big problem is that we never, ever have a low cost of failure. When schools fail, kids lose. Shirky writes in Chapter 10 about how in a traditional business infrastructure, there is a natural disincentive to innovate because "more people will remember you saying yes to a failure than no to a radical but promising idea." (p. 246) I'd argue this is more true in education than in traditional businesses, again because the stakes are so high. So the educational establishment sticks to safe ideas and traditional schooling because we know that while the outcomes may not be amazing, they are predictably mediocre at worst."

"Predictably mediocre". Sadly that sums up our education system and it is predictably failing most people.

Patent Gridlock Suppresses Innovation

The Wall Street Journal seems to have noticed some empirical research (rare enough in itself in the intellectual property arena) suggesting the US patent system undermines innovation.

"New empirical research by Boston University law professors James Bessen and Michael Meurer, reported in their book, "Patent Failure," found that the value of pharmaceutical patents outweighed the costs of pharmaceutical-patent litigation. But for all other industries combined, they estimate that since the mid-1990s, the cost of U.S. patent litigation to alleged infringers ($12 billion in legal and business costs in 1999) is greater than the global profits that companies earn from patents (less than $4 billion in 1999). Since the 1980s, patent litigation has tripled and the probability that a particular patent is litigated within four years has more than doubled. Small inventors feel the brunt of the uncertainty costs, since bigger companies only pay for rights they think the system will protect.

These are shocking findings... Imagine how much more productive our information-driven economy would be if the patent system lived up to the intention of the Founders, by encouraging progress instead of suppressing it."

Understanding identity systems

John Udell has been explaining the virtues of the laws of identity to some non-techie friends and to his surprise they got it!

"In conversation with English and Welsh friends last week, the subject of Britain’s imminent National Identity Scheme came up. My friends, who are worldly and well-educated but not technical, voiced concerns about the amount of personal information that will be stored. Their understanding was that a lot of this information will be kept on the new ID card. In fact, the proposal says that only a subset will stored on the card, which will be backed by a cloud-based (and decentralized) National Identity Register. But either way, my friends’ concerns are of course valid. If governments or businesses aggregate too much personal information, accidents and abuses will occur.

At the same time, my friends do recognize the need for a strong and secure means of identification. So they’re not opposed to identity cards on principle, they just don’t want those cards to contain, or link to, extensive dossiers.

At this point, channeling Kim Cameron, I launched into an explanation of the laws of identity and the identity metasystem. Well, sort of. I didn’t say anything about cryptography, or digital certificates, or XML web services. But I did paint a picture of a world in which individuals interact with many identity providers and many relying parties, in which all actors trust one another in exactly the ways they already do today, and in which disclosure of personal information is minimal and context-dependent.

Halfway through I thought, well, this will never fly. This whole scheme is based on decentralization and indirection, and I know people don’t take naturally to those concepts.

But…they completely got it! ... it was a hopeful moment. "

Google and Viacom deal on anonomising YouTube data

YouTube blog and the Guardian are suggesting that an agreement has been reached about anonymising the data from the YouTube logging database that a court ordered Google to hand over to Viacom. From the Guardian:

"Google has struck a deal to protect the personal data of millions of YouTube users in the $1bn (£497m) copyright court case brought against the video-sharing website by Viacom.

Under the deal, Google will make user information and internet protocol addresses from its YouTube subsidiary anonymous before handing over the data to Viacom in the US legal case."

YouTube blog (Google) says:

"As we let you know on July 4, YouTube received a court order to produce viewing history data. We are pleased to report that Viacom, MTV and other litigants have backed off their original demand for all users' viewing histories and we will not be providing that information. (Read the official legalese here.)

In addition, Viacom and the plaintiffs had originally demanded access to users' private videos, our search technology, and our video identification technology. Our lawyers strongly opposed each of those demands and the court sided with us.

We'll keep you informed of any important developments in this lawsuit. We remain committed to protecting your privacy and we'll continue to fight for your right to share and broadcast your work on YouTube. "

As with all these things the devil will be in the detail. The key provision in the agreement is:

"1. Substituted Values: When producing data from the Logging Database
pursuant to the Order, Defendants shall substitute values while preserving uniqueness for
entries in the following fields: User ID, IP Address and Visitor ID. The parties shall
agree as promptly as feasible on a specific protocol to govern this substitution whereby
each unique value contained in these fields shall be assigned a correlative unique
substituted value, and preexisting interdependencies shall be retained in the version of the
data produced. Defendants shall promptly (no later than 7 business days after execution
of this Stipulation) provide a proposed protocol for this substitution. Defendants agree to
reasonably consult with Plaintiffs’ consultant if necessary to reach agreement on the
protocol."

And the key wording in that provision is "each unique value contained in these fields shall be assigned a correlative unique substituted value, and preexisting interdependencies shall be retained in the version of the data produced" i.e. they can work back to identifying people at a later date when the dust has settled on the negative publicity. Google are also going to have to be very careful with the protocol they use for amending the entries.

The upshot is that the data will not be truly anonymised but Viacom and Google will probably each claw back some points in the PR stakes (for effort), Viacom in particular having been caught off guard by the negative public reaction to their courtroom success.

Viacom's page on the litigation is here.

Republicans and Democrats want national surveillance state

Jack Balkan sees the US Congress's recent passing of the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008" (the act granting telcos immunity for facilitating the Bush administration's mass illegal wiretapping) as another step in a worrying trend whereby the Republicans and Democrats are systematically turning the US into a surveillance society.

"Sandy Levinson and I have noted previously that we are in the midst of the creation of a National Surveillance State, which is the logical successor to the National Security State. And we have noted that, like the National Security State before it, the construction of this new form of governance will be a joint effort by the two major parties... both major political parties are committed to the build up of surveillance programs and technologies for purposes of security and the delivery of government services. We are going to get some form of National Surveillance State. The only question is what kind of state we will get. As of right now, it looks like we will get one that is far less protective of civil liberties than we could have gotten...

Indeed, the fact that Congress is now giving the President the authority to do much of what he was probably doing (illegally) before suggests that Bush's illegal program has to a large degree been ratified by Congress... It is true as a formal matter that Congress has not officially approved of what Bush has done, and it has granted immunity only to the telecom companies, and not to those Administration officials who, in effect, conspired to violate FISA. But at this point I am doubtful that the next Administration will try to prosecute former officials for violating FISA, especially now that Congress has effectively blessed the formerly illegal programs. If this is not a ratification in form, it is surely one in substance."

Dan Solove agrees.

"I've been particularly dismayed at the Democrats' strategy in dealing with the FISA Amendments. Why bother to try to negotiate a FISA compromise with a presidential administration that has shown nothing but contempt for the law to begin with? The Bush Administration, instead of going to Congress and requesting a change in the FISA, went ahead and blatantly violated that law. And the Administration said it would continue to violate the law, so what's the pressing need to fix the FISA, especially when negotiating with an Administration that only will meet you about 2% of the way? Why force Obama to make a difficult choice about voting on the law, risking either looking weak on security or like a sell-out? Why not wait a few months and then pass a law with a new administration, one that will hopefully be easier to negotiate with? And how is this law any more binding on a president who says he has the right to violate a law based on his Article II powers?

Future presidents can learn a lot from all this -- do exactly what the Bush Administration did! If the law holds you back, don't first go to Congress and try to work something out. Secretly violate that law, and then when you get caught, staunchly demand that Congress change the law to your liking and then immunize any company that might have illegally cooperated with you. That's the lesson. You spit in Congress's face, and they'll give you what you want."

WALL-E to be a copyright criminal in Canada?

This is quite amusing. The animated hero of one of Hollywood's children's summer blockbusters would be a copyright-infringing criminal under Canada's proposed new copyright law, Bill C061.