Friday, December 19, 2008

Copyright extension UK style: give the industry most of what they want

Part of the problem with politics is that it is the art of compromise. In addition, given our world of short attention spans and a media which can only cope with presenting stories from two extreme perspectives, we end up with politicians who seem to believe there is a compromise to be made between a rational evidence-based argument and wild self-interested industry PR.

So we have culture minister Andy Burnham using music industry rhetoric to suggest that a case against copyright term extension, based on solid economic evidence, only deserves to be treated with the same weight as a case in favour of copyright term extension based on wild industry PR. And 'concluding' that a 'compromise' can be made by settling half way between rationality and irrationality.

If ever there was a context, beyond holocaust denial, which illustrates Deborah Lipstadt's mantra that
Reasoned dialogue has a limited ability to withstand an assault by the mythic power of falsehood (p.25 Denying the Holocaust)
it has got to be in the surreal debates surrounding intellectual property policy and the waves of stupidity that engulf politicians whenever they encounter celebrities in this context.

Can someone explain to me the morality in signing up to a deal which says your copyright interest will last for 50 years and then when the end of the 50 years comes in sight, attempting to renege on your part of the bargain? Contrary to Mr Burnham's claims in the FT and elsewhere, there is no moral case for extending the term of copyright. In addition, accepting falsehood as fact in order to pursue a particular agenda is not the soundest of foundations for an argument supposedly based on morality. (Mr Burnham has had lots of practice a this having spent time in the Home Office defending and promoting the barmy ID card scheme) .

Read Andrew Gowers' rebuke of the minister rather than this ridiculous nonsense if you'd like a rational perspective.

ORG: Who's been losing your data?

This is brilliant. ORG's questionnaire demonstrating how exposed our personal details have become.

RIAA to pursue no more individuals?

The WSJ is reporting that the RIAA has finally decided that it is a bad idea for the music industry to continue suing their customers. They switching tactics and are now planning to lean even more heavily on the ISPs, presumably after the industry's success at pushing through a 3 strikes regime in France and a parallel potential 3-strike bombshell in the EU telecoms package.
"After years of suing thousands of people for allegedly stealing music via the Internet, the recording industry is set to drop its legal assault as it searches for more effective ways to combat online music piracy.

The decision represents an abrupt shift of strategy for the industry, which has opened legal proceedings against about 35,000 people since 2003. Critics say the legal offensive ultimately did little to stem the tide of illegally downloaded music. And it created a public-relations disaster for the industry, whose lawsuits targeted, among others, several single mothers, a dead person and a 13-year-old girl.

Instead, the Recording Industry Association of America said it plans to try an approach that relies on the cooperation of Internet-service providers. The trade group said it has hashed out preliminary agreements with major ISPs under which it will send an email to the provider when it finds a provider's customers making music available online for others to take.

Depending on the agreement, the ISP will either forward the note to customers, or alert customers that they appear to be uploading music illegally, and ask them to stop. If the customers continue the file-sharing, they will get one or two more emails, perhaps accompanied by slower service from the provider. Finally, the ISP may cut off their access altogether.

The RIAA said it has agreements in principle with some ISPs, but declined to say which ones."

Update: Slasdot has picked up the story, unsurprisingly. Thanks to Glyn via the ORG list for the pointer.

Wednesday, December 17, 2008

Jacqui Smith speaks to Intellect

SpyBlog has done a wonderful deconstruction of the Home Secretary's speech to the Intellect Trade Association on December 16, 2008. Extract particularly relevant to the recent S & Marper v UK judgement in the European Court of Human Rights:

I am determined to maintain robust powers to tackle crime and disorder. But to allay public fears of excessive intrusion, and to keep people's trust and confidence in the wider necessity of these powers to tackle disorder, crime and terrorism, I am equally clear that we have to measure these efforts against our standards for safeguards, openness, proportionality and common sense.

The same principles apply to DNA evidence. Having looked at this area particularly closely over the past year, I've found there are few areas where the balance between rights and protections comes into such stark relief as on DNA.

The recent European Court judgement in the S and Marper case has put the issue back in the spotlight.

We wonder if Jacqui Smith and her senior civil servants and political apparatchiki have actually bothered to read the damning unanimous judgment by the 17 judges of the European Court of Human Rights. They highlighted lots of areas of policy where this Labour Government is wrong and is acting illegally, with regard to both DNA cellular tissue samples, DNA profiles and also Fingerprints.

See ECHR judgment on the Marper case - rules that UK Government and Police indefinite retention of innocent people's tissue samples, DNA profiles and fingerprints is illegal

Many of you will have seen the response of victims' families to the recent ruling - notably the family of Sally Ann Bowman, whose killer was convicted as a result of DNA taken after he was arrested following a pub brawl and subsequently acquitted.

I have real sympathy for all those with concerns that any move could undermine a system that helped trap Sally Ann's killer. And I want to reassure Sally Ann's father that I will not let that happen.

In this and other cases, we've seen convictions for serious crimes of culprits who had had their DNA taken and retained for a previous crime where they were arrested, but not convicted.

In May 2002, Kensley Larrier was arrested for the possession of an offensive weapon. His DNA was taken and loaded to the DNA database, although the proceedings were then discontinued. Two years later, DNA from a rape investigation was speculatively searched against the database and matched his sample. This was the only evidence in the case, and when found guilty Larrier received a 5 year custodial sentence and was entered on the sex offenders register for life.

These cases and others tell me that the DNA database is crucial to public protection. It not only helps to lead to the guilty. It helps to prove innocence and to rule people out as suspects.

The Home Office has claimed, purely as a statistical guesstimate that there are over 100 such cases , but has refused to provide details of more than a tny handful of them.

That argument was made to the ECHR and, rightly rejected by them, as being disproportionate.

Keeping innocent people's DNA data on a database does not help to "prove innocence" or to "rule people out as suspects", that is what the direct comparison of the DNA of a suspect against the DNA samples from the crime scene does. Once it has been shown that there is no match, that data should be destroyed.

There is more we can do to strengthen the dividing line between guilt and innocence. For those who have committed a serious offence, our retention policies need to be as tough as possible.

Only for people actually convicted of serious offences, not simply those falsely accused, or arrested or even charged with such offences..

But for others, including children, I am convinced that we need to be more flexible in our approach.

The DNA of children under 10 - the age of criminal responsibility - should no longer be held on the database. There are around 70 such cases, and we will take immediate steps to take them off.

It will be interesting to see just how long "immediate" actually takes in practice.

For those under the age of 18, I think we need to strike the right balance between protecting the public and being fair to the individual.

There's a big difference between a 12 year old having their DNA taken for a minor misdemeanour and a 17 year old convicted of a violent offence, and next year I will set out in a White Paper on Forensics how we ensure that that difference is captured in the arrangements for DNA retention.

Why were these issues and procedures not debated and codified at the start of the National DNA Database ?

We will consult on bringing greater flexibility and fairness into the system by stepping down some individuals over time - a differentiated approach, possibly based on age, or on risk, or on the nature of the offences involved.

That may mean letting the 12 year old I mentioned come off the database once they reach adulthood. And it could mean limiting how long the profiles of those who have been arrested but not convicted of an offence could be retained.

We are also re-examining retention arrangements for samples. Physical samples of hair and saliva swabs that represent people's actual DNA are much more sensitive than the DNA profile that is kept on the database - which only uses a small part of non-coding DNA.

This was a key point flagged up when we set up the Ethics Group under the National DNA Database Strategy Board, and we will pursue improvements to the safeguards around the handling of samples.

The ECHR judgment suggests that you should destroy those samples of innocent people. as they contain even more sensitive familial information, including medical data than mere DNA profiles do.

These changes will see some people coming off the system. But as I said, we need to strengthen the dividing lines between innocence and guilt - and so I want to do more to ensure we get the right people onto the system as well.

The supposed error correction mechanism is currently a deliberate bureaucratic obstacle course, far beyond the resources of most ordinary people.

This must be immediately simplified and speeded up."

Monday, December 15, 2008

Gowers stinging rebuke to minister on copyright term

Andrew Gowers has delivered a stinging rebuke to the UK’s Secretary of State for Culture, Media and Sport, Andy Burnham, in the wake of the latter's expressed enthusiasm for extending the term of copyright in sound recordings to 70 years.
"Politicians often do and say silly things when they come into contact with celebrities.

So it was last Thursday when a star-struck Andy Burnham, Britain’s secretary of state for Culture, Media and Sport, showed up for a speech and photo-opportunity with the former lead singer of the Undertones, a punk-pop combo of the 1970s. In addition to the usual pleasantries about Britain’s creative industries, Mr Burnham set out a novel argument about the law of copyright protecting musicians’ work.

There was, he said, “a moral case” for performers – who often do their best recorded work in their 20s and 30s – to benefit from it throughout their lifetime. The government would therefore consider extending copyright for recordings to 70 years from the present 50.

As political speeches go, this is pretty silly. A moral case? You might just as well say sportspeople have a moral case to a pension at 30.

Copyright is an economic instrument, not a moral one, and if you consider the economic arguments – as I did two years ago at the request of Gordon Brown – you will find that they do not stack up. All the respectable research shows that copyright extension has high costs to the public and negligible benefits for the creative community...

Twenty years’ extra earning power in 50 years’ time does nothing to put more money in the pockets of struggling performers now: two thirds of lifetime income from an average compact disc comes in the first six years after release.

And it will not alter the incentives for creation one jot. As Dave Rowntree, Blur’s drummer, told my review: “I have never heard of a single band deciding not to record a song because it will fall out of copyright in only 50 years. The idea is laughable.”...

Digital distribution has made more music accessible to more people in more places and forms than ever before. It has also facilitated huge growth in illegal copying.

The first trend generates increased earning power for musicians from live performance and invites music companies to justify their existence by coming up with innovative ways of tapping new markets. The second robs rights holders of revenue that is rightfully theirs.

There are issues here that demand policy intervention, but they have nothing to do with Mr Burnham’s pet project. They suggest a focus on the balance and flexibility of copyright, and on better enforcing the protection that already exists – not on extending a right largely derided by younger citizens."
Read the whole thing. It's one of the more articulate exposés of the nonsense of term extension that I've seen delivered anywhere, in less than 750 words.