Friday, July 25, 2008
If you want a sensible analysis of the implications of the deal though, forget the mass media and head over to Pangloss.
"So what does the MoU say? Well basically for 3 months, the industry aided by the 6 ISPs involved are going to send out letters to suspected filesharers. Lots and lots of letters. 80,000 or so over 12 weeks. But hang on. If 67% of the UK have admitted to filesharing - even only once - that's 35 million letters that need sending out. Quite a bit of scaling up there to be done after the pilot. Eco-wise let's hope they're all emails:)
But letters is only stage 1 (after all the BPI could have sent them themselves, tho this way they do aparently get ISPs to pay for half of them.) Stage 2 is what do you do next, when presumably they compare them all on a big spreadsheet, and find that eg Mr A of Aberystwyth got 220 letters from 5 ISPs? What gets done to persuade Mr A to abandon his bad ways if the shock of 220 letters isn't enough?"
Read it in full.
"Just over a month after consumer backlash caused MSN Music to rescind its decision to deactivate the digital rights management ("DRM") servers that allowed MSN Music purchasers to "reauthorize" music files after upgrading operating systems or buying new computers, Yahoo! Music has decided to deactivate its own DRM servers.
The ironically named Yahoo! Music Unlimited Store will shut its virtual doors in September, and, as of October 1, will no longer provide license keys for music purchased from the store, nor will it authorize song playback on additional computers. That means Yahoo! Music customers will not be able to transfer songs to “unauthorized computers” or access the songs after changing operating systems. Yahoo! advises customers to back up their music to a CD if they want to be able to access it in the future. In other words, Yahoo! wants its customers to invest more time, labor and money in order to continue to enjoy the music for which they have already paid. In fact, the more music they bought, the more work they'll have to do. What is worse, this suggestion could put customers at legal risk, as they may not have documentation of purchase. Furthermore, there is no certainty that all relevant copyright owners would agree that making such backup copies without permission is lawful."
Update: Read Ed Felten's take on the whole mess.
It's a useful metaphor for digitally related regulations generally - what policymakers believe is not necessarily so but there is no room for other perspectives. The art of persuasion through a story based on empirical evidence and reason seems to be absent from the policymaking process. It's been killed off by vested interests and the rush for the soundbite and the headline.
Thursday, July 24, 2008
Arvind Narayanan and Vitaly Shmatikov. Robust De-anonymization of Large Sparse Datasets. Proceedings of the 2008 IEEE Symposium on Security and Privacy (S&P 2008).
Microsoft which sponsors the award had this to say about this year's winners:
"The films we watch, the products we buy and the subjects that interest us can tell others a lot about who we are — information that, rightly, we might wish to keep to ourselves. The internet, to which we entrust so much of this information, works because of our faith in the confidentiality of the behaviours we exhibit and in a shared sense of responsibility. Work from three teams, recognised today in the Microsoft-sponsored Privacy Enhancing Technology Awards, suggests that more can be done to ensure that people can be confident that their privacy will be protected online.
Arvind Narayanan and Vitaly Shmatikov, researchers at the University of Texas, began looking into large, publicly available data sets that were cleansed of names or other personally identifiable information. They very quickly discovered a major privacy risk — anonymised data sets could be used to re-identify individuals using efficient algorithms. They took the theory and tested it in reality, examining anonymised movie ratings and dates of rating for 500,000 users published by a major online movie rental service. Narayanan and Shmatikov found that they could identify a user's ratings record with only five to ten educated guesses relating to some of those ratings. Narayanan and Shmatikov proceeded to develop a theory that shows how this applies to other data sets such as an online store's purchasing records.
Their work, which earned them the overall 2008 PET award, shows the danger in releasing apparently anonymised data without better methods to ensure that it can't be compromised. Their research will be invaluable in promoting and informing the development of ways to release data with provable privacy guarantees...
Runners-up Steven J. Murdoch and Piotr Zieliński of Cambridge University also uncovered possible dangers to our online anonymity. Their paper discusses and analyses, for the first time, the possibility of surveillance at internet exchanges (IXes). High volumes of traffic pass through these exchanges when travelling from one network to another, making them an ideal point from which to gather surveillance data. Murdoch and Zieliński first showed that a single IX could observe a large fraction of traffic on the experimental Tor network, a distributed network of relays that bounces traffic around the internet to facilitate anonymous access to information. Despite the fact that the amount of data was overwhelming, Murdoch and Zielinski's study looked into how much they could learn about users from only a snapshot of the surveillance data gathered.
Using techniques that are realistic with today's network technology, they showed that this method of looking at a small sample of data was surprisingly effective and could uncover a lot of information about Tor users. This research is notable because it could change the way researchers think of the security of network privacy systems, and is likely to be influential in future research about internet surveillance."One of the runners up, Steven J. Murdoch notes his and his colleagues success at Light Blue Touchpaper.
"The name of the “Anti-Counterfeiting Trade Agreement” – ACTA – is indicative of the overall approach being taken. First, this is a trade agreement, which means that it by-passes many of the more open processes for drawing up international agreements. This has allowed it to be discussed in secret, amongst a cosy club of interested parties and their chums – notably, those in industries based on exploiting intellectual monopolies . Moreover, this is an invitation-only club, which has led to the exclusion of most developing countries, and hence most of the world in terms of population...
The approach that ACTA will take is hard to discern from the generalities of the briefing document, but fortunately we have some clear hints in the published submissions from interested parties in which they express they hopes for ACTA.
Here, for example, is what the record industry would like to see:
ensure that ISP's are required by law to engage in reasonable business practices with respect to the detection and removal of infringing files, preventing access to their networks on the part of known infringers; terminating the accounts of repeat or serious infringers
In other words, the old “three strikes and you're out” idea mandated across most of the developed world – and ultimately beyond."
He also takes the BSA to task for attempting to eviscerate privacy protections in order to protect their members. (It you want a considered view of why this is a bad idea, read Daniel Solove's terrific book The Future of Reputation which is now freely available online.)
Whichever side of the IP debate you fall on Moody's article is well worth reading in full.
Update: ORG's take on this and the industry deal is available on their blog.
"Six of the UK's biggest net providers have agreed a plan with the music industry to tackle piracy online.
The deal, negotiated by the government, will see hundreds of thousands of letters sent to net users suspected of illegally sharing music.
Hard core file-sharers could see their broadband connections slowed, under measures proposed by the UK government.
BT, Virgin, Orange, Tiscali, BSkyB and Carphone Warehouse have all signed up...
The plan commits the firms to working towards a "significant reduction" in the illegal sharing of music...
The six internet service providers have signed a Memorandum of Understanding drawn up by the Department for Business, Enterprise & Regulatory Reform (BERR)...
At the same time the government has started a consultation exercise that could result in laws that force net firms to tackle music piracy. A working group will be set up under the auspices of regulator Ofcom to look at effective measures to tackle persistant file-sharers...
The consultation document proposed that hard core file-sharers could have technical measures imposed, such as "traffic management or filtering and marking of legitimate content to facilitate identification"."
Apparently the MPAA has signed up too.Evan Davis interviewed several people about the deal on the Today programme this morning, including Becky Hogge of ORG and musician Billy Bragg. It was really disappointing to hear someone like Davis suggesting repeatedly that cutting people off the Net for suspected file sharing was a proportionate option. Becky Hogge did her best to explain it to him in a paint-by-numbers way but I'm afraid he didn't get it. He could get his head round the idea that cutting off someone's electricity would be disproportionate but seemed to be completely baffled by the notion that cutting someone and their family off the Net - and possibly damaging their livelihood - could be even remotely equivalent. Someone needs to introduce the affable Mr Davis to Lilian Edwards' clinical dissection of precisely how seriously disproportionate such a response is. But that is the problem with modern public debate - there is no time or space set aside for serious analysis. It all has to be done in sound bites.
Having said that Billy Bragg had a nice sound bite: "Criminalising our audience is not going to help musicians make a living." He was also very convincing when Evan Davis couldn't get away from the idea "you're going to have to go in, monitor what people are doing" and stop them. Bragg's response was "are you really?" - after all his first real collection was taped from a friend and he loved the album so much he has bought loads of copies in various formats since then, so the artists eventually got their money. Davis chuckled at that in a way that suggested he may have done likewise and at least understood the point. Will it have a lasting effect on him? We'll have to wait and see.
Update: The Guardian is on the case, if only to have a dig at the Independent.
Wednesday, July 23, 2008
"In a case that will have profound implications, the European Court of Human Rights has issued a judgment against Finland in a medical privacy case.
The complainant was a nurse at a Finnish hospital, and also HIV-positive. Word of her condition spread among colleagues, and her contract was not renewed. The hospital’s access controls were not sufficient to prevent colleages accessing her record, and its audit trail was not sufficient to determine who had compromised her privacy. The court’s view was that health care staff who are not involved in the care of a patient must be unable to access that patient’s electronic medical record: “What is required in this connection is practical and effective protection to exclude any possibility of unauthorised access occurring in the first place.” (Press coverage here.)
A “practical and effective” protection test in European law will bind engineering, law and policy much more tightly together. And it will have wide consequences. Privacy compaigners, for example, can now argue strongly that the NHS Care Records service is illegal. And what will be the further consequences for the Transformational Government initiative - the “Database State”?"
Update: William Heath, whilst pointing out the court ordered the Finnish government to pay out €34k also wonders (given the HMRC data Chernobyl) how much 25,000,000 x €34,000 is. It would certainly wake up a few government ministers about the down side of the surveillance society they are so blithely constructing.
"In a statement issued to the university last week, Sir Colin Campbell says: "There is no 'right' to access and research terrorist materials. Those who do so run the risk of being investigated and prosecuted on terrorism charges. Equally, there is no 'prohibition' on accessing terrorist materials for the purpose of research. Those who do so are likely to be able to offer a defence to charges (although they may be held in custody for some time while the matter is investigated). This is the law and applies to all universities."
Sir Colin issued the statement to advise staff to note "additional points" that have emerged since the arrest in May of a Nottingham masters student and a clerk on suspicion of possessing extremist material.
The student, Rizwaan Sabir, who is studying Islamic terrorism, said he had downloaded a copy of an al-Qaeda training manual for use in his MA dissertation and PhD application and had forwarded it to the administrator, Hicham Yezza, for printing. After six days in detention, neither was charged...
Hicham Yezza, the clerk arrested with Rizwaan Sabir, was re-arrested on immigration-related grounds after his release and was due to be deported until proceedings were stayed pending judicial review."In response to the comments by the V.C. at Nottingham, Professor Scott Lucas, at Birmingham University, has written an open letter.
"This is not a question of “access and research [to] terrorist materials”. No page or picture frame or moving image is “terrorist” in and of itself. It is how that material is used, let us say, to fan the flames of division and hostility that can lead to acts of violence. The problem was never the type-set pages of Mein Kampf; rather, it was in the use of those pages to justify bigotry, racism, war, genocide. The problem was never Marx’s Das Kapital or Mao’s Little Red Book or Adam Smith’s The Wealth of Nations or the Koran or the Bible. It was, still is, and always will be the manipulation of those texts to justify the taking of lives."
Further details of the story are available at the Support Hicham Yezza website.
"The Public and Commercial Services Union said human processes were being automated, and resources were being “diverted” from passport processing to the introduction of ID cards. The government plans to close a key passport office in Glasgow, and has offered passport staff a below-inflation 2.5 percent pay rise.
In May, five IT suppliers were selected for the ID cards project. The PCS complains that the pay rise comes at a time when the IPS has spent “nearly £50 million” on consultants.Some 3,000 staff at the Identity and Passport Service will strike over the next three days."
"BilbioCommons, a new social discovery system for libraries that replaces all user-facing OPAC functionality, allowing for faceted searching and easier user commenting and tagging, has gone live in Oakville, ON, a city of 160,000 outside Toronto. It is expected to be used by public libraries serving more than half of Canada’s population—and some libraries in the United States, too. “This is revolutionary, as far as I’m concerned,” Gail Richardson, Oakville PL’s acting director of online services, told LJ. “People don’t want a library that acts like just a glorified card catalog online. They want a catalog that’s as good as Google and Amazon.”
Library users, said Richardson, most want “easy reader’s advisory,” a better way to get recommendations and to connect with people online."
"The House of Lords Science and Technology Committee have just completed a follow-up inquiry into “Personal Internet Security”, and their report is published here. Once again I have acted as their specialist adviser, and once again I’m under no obligation to endorse the Committee’s conclusions — but they have once again produced a useful report with sound conclusions, so I’m very happy to promote it!
The Committee decided that in the light of the Government’s antipathy they would hold a rapid follow-up inquiry to establish whether their conclusions were sound or whether the Government was right to turn them down, and indeed, given the speed of change on the Internet, whether their recommendations were still timely.
The written responses broadly endorsed the Committee’s recommendations, with the main areas of controversy being liability for software vendors, making the banks statutorily responsible for phishing/skimming fraud, and how such fraud should be reported.
There was one oral session where, to everyone’s surprise, two Government ministers turned up and were extremely conciliatory. Baroness Vadera (BERR) said that the report “was somewhat more interesting than our response” and Vernon Coaker (Home Office) apologised to the Committee “if they felt that our response was overdefensive” adding “the report that was produced by this Committee a few months ago now has actually helped drive the agenda forward and certainly the resubmission of evidence and the re-thinking that that has caused has also helped with respect to that. So may I apologise to all of you; it is no disrespect to the Committee or to any of the members.”
I got the impression that the ministers were more impressed with the Committee’s report than were the civil servants who had drafted the Government’s previous formal response. Just maybe, some of my comments made a difference?"
Tuesday, July 22, 2008
"They should teach you something you don't know." (Corrigan, J. 2008)
I had to record it somewhere and given my periodic brain dumps here of my views of the education system, I figured this was as good a place as any.
The substitution of a relatively simple (paper ballots) part of a complex process with complex machines (computers) provides an immediate plethora of questions, issues and problems which need to be addressed, from the availability of trained staff and reliable vendors through to voter verifiable audit trails. Failure to acknowledge let alone attempt to tackle these issues will absolutely gaurantee failure of the systems we deploy as a result.
Yet it seems that policymakers, in London at least, certainly don't want to avail themselves of the expertise of the very people who understand what computers can and cannot do. It should be a wake up call that the people who understand the machines from Princeton to London are the ones who are explaining forensically that if we use these machines this way we are potentially seriously compromising the integrity of our electoral process.
"First up were representatives from Indra (the e-counting supplier) and election officials from London Elects, Greater London’s Returning Officer and two Constituency Returning Officers. A number of good, challenging questions based on ORG’s findings were directed at those present, but the responses were often less than satisfactory, resorting to assurances (because proof of the election’s validity couldn’t be provided). Members of the committee, being London Assembly members, were in the strange position of having to question whether their own election was valid. So their was little incentive to push hard for answers, with the exception of Andrew Boff (Con) who as a former systems analyst understood the severity of the problems and risks involved in e-counted elections...
On asking Indra whether the error messages ORG had observed risked the integrity of the election, Indra responded that these were isolated ‘glitches’ but that they had absolute confidence in the declared results, a view supported by Mr Mayer. Andrew Boff was prevented by the chair, Brian Coleman (Con), from pursuing this weak response further...
No such scrutiny was levelled at Indra nor London Elections. Indeed the committee seemed uncomfortable challenging the results, but happier expressing displeasure over delays or other administrative matters which, while of importance, hadn’t risked the accuracy of the result. Furthermore several attempts were made to imply ORG’s report was the work of well intentioned amateurs, perhaps not worth taking seriously.
On ORG’s behalf I then came before the committee to discuss our findings. I began by explaining my ten years of experience in the field and why I was qualified to discuss this election. Some committee members visibly raised eyebrows on hearing my brief resume. Perhaps they assumed I was a geek without knowledge of elections.
However on trying to address some of the weak or ridiculous responses from the previous participants (Indra in particular) the Committee balked at my comments. Again with the exception of Mr Boff they were incredulous of our findings, in particular challenging our maths over the maximum number of possibly unaccounted-for ballots.
The Chair claimed electoral fraud wasn’t an issue in the UK, to which I responded that candidates from all three major political parties have been convicted of electoral fraud in the last 10 years. Still Mr Coleman refused to accept that there were people with sufficient interest and capability to commit electoral fraud in the London elections. My presence was soon no longer desired and the meeting swiftly ended."
I suspect several thousand students reading an OU case study are not going to have an impact on this attitude in the short term. It might be that the UK needs a variation on the Dutch experience of one 2006 TV programme getting through when years of campaigning by computer scientists had had little effect.
"What will really tip the balance of power in this case, now that every viewing instance will be in Viacom's possession, is the answer to how Youtube deals with porn.
Who identifies the porn on Youtube ? According to Youtube, its regular users who police the site. Personally, I dont believe it. Whether its individuals or technology that keep porn off of Youtube, it really doesn't matter. If Viacom can use this data to show that Youtube manages the presentation of porn in any way, then they lose their DMCA protection.
Which means they lose their case to Viacom."
"We just received word from Texas. The Court denied Blackboard's Motion for Contempt. We anticipate we will receive the Court's written Order in a few days and will post it when we receive it."
Think about this ridiculous litigation for a minute. Blackboard get a nonsensical patent and immediately sue their biggest (though comparatively very small) competitor, Desire2Learn. The case goes through the Eastern District Court in Lufkin in Texas, (bearing in mind Blackboard's headquarters is in Washington DC and Desire2Learn is a Canadian company, the obvious place for a lawsuit is Texas), and a jury awards millions in damages for patent infringement.
Then the US Patent Office, having reviewed the patent, issues a preliminary ruling declaring it invalid. This, however, has no impact on the court case. The losers still have to pay damages and the judge, with little room for manoeuvre following the jury decision, orders them to change their software so that it doesn't infringe Blackboard's patent. Desire2Learn comply within the few weeks the judge has given them, updating the software and their customer base installations, since the judge has said the old infringing software can't be sold or used.
Blackboard are not happy that the changes go far enough and go back to court demanding their competitor gets held in contempt for not changing their product enough so that it no longer infringes a patent which has been formally declared invalid. And they can get away with it because the invalidation of the patent can't be taken into consideration in court until the process within the Patent Office has been exhausted through all possible appeals.
It will be really interesting to read what the judge has had to say about the latest action when his ruling becomes available. At best it's possible the judge has decided that the latest version of Desire2Learn's software can't be shown to be infringing Blackboard's invalid patent, in which case Blackboard would have to start a new patent infringement suit from scratch to take it down. At worst it could just be a procedural delay. We'll just have to wait for the details.
Update: William Patry agrees with them.
I'm becoming increasingly convinced that all large complex organisations converge towards a kind of operational insanity where process and procedures take precedence over people and the role of the employees of the institution is to ensure the rules are followed irrespective of the scale of damage such processes might inflict. I should probably write a paper or a book on it but for now consider the Times story:
"Tens of thousands of criminal records could be deleted after a landmark ruling that police were breaking rules on the holding of personal details.
Police reacted with dismay to a judgment by the Information Tribunal, which could force them to review millions of records of minor crimes.
The ruling opens the way for all those who have been convicted of a minor offence when young, and who have since remained out of trouble, to apply for their record to be removed from the Police National Computer.
Police privately cautioned last night that there were potentially much wider implications. “A crime may look very trivial, but it might still be of significance to a person’s potential behaviour,” a police source said...
In a second blow to the storage of crime records, the Ethics Group, a government-appointed advisory body, gave warning that keeping DNA samples of people arrested but never charged or convicted is a potential breach of human rights laws.
Yesterday’s tribunal ruling ordered five police forces to delete the criminal records of five individuals from the national computer, which holds details of millions of people convicted, cautioned or reprimanded for a crime.
Under present police policy, an individual’s criminal record remains on the computer for 100 years."
The police had been appealing a ruling from the Information Commissioner that they were contravening data protection laws. That quote from the "police source" is another classic example of how the administrative mindset gets out of control - “A crime may look very trivial, but it might still be of significance to a person’s potential behaviour.” It's straight out of the we've got to clamp down on 5-year olds since 'it might still be of significance to their potential behaviour' mentality and completely barmy.
Good to see that there are still a few elements in the system standing up for robust liberal democratic values. Why should minor transgressions in life haunt people for life? After all George W. Bush was reportedly a drunk and a juvenile delinquent and grew up to be the US president, so they don't all blossom into hard nosed criminals... er... on second thoughts... Tony Blair had a lifelong pure-white-smile recorded background and he and Bush are responsible for the deaths of tens of thousands if not hundreds of thousands of people. In Italy the Berlusconi (and I guess he hasn't exactly got a clean record) government is currently taking the total surveillance mentality of Bush-Blairism to its chilling next level, institutionalising state based abuse of the Romany people through their efforts to fingerprint every member of that minority group and publicly denigrating them at every opportunity. Which leads to the kind of callous disregard for human life we see reported on the front page of today's Independent."It's another balmy weekend on the beach in Naples. By the rocks, a couple soak up the southern Italian sun. A few metres away, their feet poking from under beach towels that cover their faces and bodies, lie two drowned Roma children. The girls, Cristina, aged 16, and Violetta, 14, were buried last night...
It is an image that has crystallised the mounting disquiet in the country over the treatment of Roma, coming after camps have been burnt and the government has embarked on a bid to fingerprint every member of the minority. Two young Roma sisters had drowned at Torregaveta beach after taking a dip in treacherous waters. Their corpses were recovered from the sea – then left on the beach for hours while holidaymakers continued to sunbathe and picnic around them...
The Berlusconi government has launched a high-profile campaign against the community, spearheaded by the programme announced by the Interior Minister, Roberto Marroni, to fingerprint the entire Roma population. The move has been condemned inside Italy and beyond as a return to the racial registers introduced by the Fascist regime in the 1930s. The fingerprinting of Roma in Naples began on 19 June."
"Gravil v Carroll and Another
Before Sir Anthony Clarke Master of the Rolls, Lady Justice Smith and Lord Justice Richards
Judgment June 18, 2008
A rugby club was vicariously liable for an assault by one of its semi-professional players on a member of the opposing team during a match...Redruth RFC provided rugby for the local community; it made no profit and it provided its players with a contract of employment to avoid losing them. It was only about ten years ago that such clubs began to employ their players. No question of vicarious liability on the part of such clubs could have arisen until then.
The critical factor was the fact that the first defendant was employed by the club. The question for the court was whether the club was vicariously liable to the claimant for the consequences of the first defendant's tort, in punching him in the face and causing him injury.
An employer was vicariously liable for the torts of his employees committed in the course of their employment. Where the wrongful conduct could fairly and properly be regarded as done while acting in the ordinary course of the employee’s employment it would ordinarily be fair and just to hold the employer liable...
The first defendant was acting in the course of his employment when he punched the claimant."
Monday, July 21, 2008
"The notion of "green copyright" sounds odd, yet the policy choices found in Bill C-61, Industry Minister Jim Prentice's controversial copyright bill, disappointingly run directly counter to the current emphasis on the environment...
Despite attempts to reduce e-waste, Bill C-61 establishes new barriers to the reuse of electronics. If enacted into law, it would prohibit the unlocking of cellphones, forcing many consumers to junk their phones when they switch carriers (there are an estimated 500 million unused cellphones in the United States alone).
Similarly, the U.S. version of Bill C-61 has resulted in lawsuits over the legality of companies that offer to recycle printer ink cartridges. In one lawsuit, Lexmark sued a company that offered recycled cartridge and though it ultimately lost the case, the lawsuit created a strong chill for companies set to enter that marketplace.
Bill C-61 also creates new barriers in the race toward network-based computing, which forms part of the ICT industry's response to the fact that it accounts for more carbon emissions than the airline industry...
The bill prohibits companies from taking advantage of cloud computing to offer network-based video recording services (as are offered by some U.S. based providers). It also stops consumers from shifting their music, videos, and other content to network-based computers, limiting these new rights to devices physically owned by the consumer. In fact, the bill even blocks consumers from using network-based computer backup since multiple copies of purchased songs or videos is forbidden."It's good to see someone of Prof Geist's standing noting this, as it has been largely invisible from the debates on the knowledge society. Digital devices use vast quantities of energy. They also have short lives and generate vast quantities of toxic waste. In spite of the long standing myth that digital content is perfect and "free" it has never been so. The environmental cost of intellectual property policy stretches beyond James Boyle's second enclosure of the commons (of the mind) and has a substantial and increasing impact on our physical environment.
Thanks to Michael Geist himself for the pointer to his article.
" For Pennsylvania mom Stephanie Lenz, a closely watched copyright showdown in San Jose federal court is a simple matter of standing up to powerful music moguls and petulant pop stars.
"I figure I have nothing to lose," Lenz said Friday in a telephone interview with the Mercury News. "The music companies are just going to keep doing this to people. I think it's my responsibility to stand up to them and say, 'That's enough.' "
Lenz, whose case reached a critical stage Friday, finds herself at the heart of an epic copyright fight over Universal Music's attempt to force her to take down a YouTube video of her toddler learning to walk with the Prince song "Let's Go Crazy" blaring in the background."The EFF is backing Ms Lenz in the hope of getting the first formal declaration from a court to the effect that this kind of mashup is well within the bounds of fair use and protected by the first amendment to the US constitution. Have a look at the video for yourself on YouTube - frankly it is pretty difficult to make out who the artist was or what song they were singing. Any rational actor viewing this on the net would be idiotic to follow it up by tracking down the family and sending them a cease and desist letter. But the industrial scale of the music industry's 'takedown anything remotely suspicious' operation doesn't allow for rational pre-threat assessment. So lots of innocents get caught in the Net and unnecessary litigation results. Presumably there are executives in Universal who are wishing this lawsuit would just quietly go away.
Update: See thoughtful comment from Alfred Yen at Madison.net
Update 2: More interesting commentary from Sherwin Siy at Public Knowledge. Universal are claiming in their defence that fair use is infringing use. Siy says:
"It sounds paradoxical, but that’s the argument made by Universal in its defense of an overzealous DMCA takedown notice sent to Stephanie Lenz. That notice was sent to Lenz after she posted a YouTube video of her then-13 month-old son dancing in her kitchen to the barely-intelligible strains of Prince. Give me a minute to walk through the background of what caused Universal to make this twisted argument.Lenz, represented by EFF, has sued Universal for violating 17 USC 512(f), which penalizes abuses of the DMCA’s notice-and-takedown procedures...
Thus, if Lenz wasn’t infringing copyright, and Universal knew that and sent the notice anyway, it’s liable.
And it’s hard to see how Lenz’s use isn’t fair. It’s a non-commercial, 29-second work having no effect on the market for Prince’s work. A first glance should tell anyone with some copyright experience that this is fair use; a first glance should tell anyone at all that this isn’t worth sending a takedown notice.
But Universal is trying several arguments to get out of the penalty. For one thing, it claims that the misrepresentation wasn’t “knowing.” For another, it says that it wasn’t a misrepresentation to say that a fair use was infringing. For that to be true, a fair use must be an infringing use.This is, to say the least, weird."
And just to show that the re-mix culture was a staple of the founding fathers, in one of his many letters to Atticus, Cicero, more than 1800 years previously, said "I cease not to advocate peace; even though unjust it is better than the most just war." (Episolae ad Atticum, bk. VII, epistle 14 for the Roman scholars amongst you);
And Samuel Butler had written (Butler's Remains, 1759) "It had been said that an unjust peace is to be preferred before a just war."
"UK-IPO response to the European Commission's proposal to extend the term of copyright protection
The UK-IPO today responded to the European Commission's proposal to extend the term of copyright protection for sound recordings from 50 to 95 years.
Additional measures in the Directive include a proposal that record producers set aside 20% of all revenues for a fund for session artists. A 'use it or lose' it clause should enable performers to regain the rights in recordings over 50 years old which are no longer available commercially. There is also a proposal to align the term of protection for the music and lyrics which together make a musical composition.
Minister of Intellectual Property Baroness Delyth Morgan said,
"Because copyright represents a monopoly we need to be very clear that the circumstances justify an extension. We will therefore need to consider these proposals carefully to understand how they would work and what the benefits are likely to be. I would like to hear what the public thinks about this and would urge all those who have an interest in these proposals to make sure their voice is heard and to contact the UK-IPO by the end of August."
The Gowers Review of Intellectual Property, an independent government commissioned review, recommended against an extension of copyright term. Evidence suggested that extending the term of protection would negatively impact on consumers and industry.
* Andrew Gowers undertook a review of Intellectual Property in 2005 and reported his findings to the Government in December 2006. He identified a number of areas where improvements could be made. The Government committed to taking the recommendations forward. The full review can be viewed at The HM Treasury website. http://www.hm-treasury.gov.uk./media/6/E/pbr06_gowers_report_755.pdf
* As part of the Gowers Review a report was commissioned from the Centre for Intellectual Property and Information Law to examine the economic evidence for extending the term of protection for sound recordings. The full review can be viewed at http://www.hm-treasury.gov.uk/media/B/4/gowers_cipilreport.pdf
* If you have any comments on the proposal you are invited to send them to Barbara Squires at: Termextension@ipo.gov.uk by the end of August."