Nationalise Google books?

Robert Darnton in the New York Review of Books suggests that one way out of the Google books situation would be to nationalise Google books. I can't see that idea going down too well in the land of the free.

"The most ambitious solution would transform Google's digital database into a truly public library. That, of course, would require an act of Congress, one that would make a decisive break with the American habit of determining public issues by private lawsuit. The legislation would have to settle ancillary problems—how to adjust copyright, deal with orphan books, and compensate Google for its investment in digitizing—but it would have the advantage of clearing up a messy legal landscape and of giving the American people what they deserve: a national digital library equal to the needs of the twenty-first century. But it is not clear how Google would react to such a buyout.
If state intervention is deemed to go too far against the American grain, a minimal solution could be devised for the private sector. Congress would have to intervene with legislation to protect the digitization of orphan works from lawsuits, but it would not need to appropriate funds. Instead, funding could come from a coalition of foundations. The digitizing, open-access distribution, and preservation of orphan works could be done by a nonprofit organization such as the Internet Archive, a nonprofit group that was built as a digital library of texts, images, and archived Web pages. In order to avoid conflict with interests in the current commercial market, the database would include only books in the public domain and orphan works. Its time span would increase as copyrights expired, and it could include an opt-in provision for rightsholders of books that are in copyright but out of print.
The work need not be done in haste. At the rate of a million books a year, we would have a great library, free and accessible to everyone, within a decade. And the job would be done right, with none of the missing pages, botched images, faulty editions, omitted artwork, censoring, and misconceived cataloging that mar Google's enterprise. Bibliographers—who appear to play little or no part in Google's enterprise—would direct operations along with computer engineers. Librarians would cooperate with both in order to assure the preservation of the books, another weak point in GBS, because Google is not committed to maintaining its corpus, and digitized texts easily degrade or become inaccessible."

Remedy for groundless threats of copyright infringement proceedings

Lord Lucas has been pondering the Digital Economy Bill and suggested an interesting amendment, a remedy for groundless copyright threats no less:

"

After Clause 8

LORD LUCAS

Insert the following new Clause—

"Remedy for groundless threats of copyright infringement proceedings

(1)	The Copyright, Designs and Patents Act 1988 is amended as follows.

(2)	After section 169 insert—

"169A.

Remedy for groundless threats of infringement proceedings

(1)	Where a person threatens another person with proceedings for infringement of copyright, a person aggrieved by the threats may bring an action against him claiming—

(a)	a declaration to the effect that the threats are unjustifiable;

(b)	an injunction against the continuance of the threats;

(c)	damages in respect of any loss which he has sustained by the threats.

(2)

If the claimant proves that the threats were made and that he is a person aggrieved by them, he is entitled to the relief claimed unless the defendant shows that the acts in respect of which proceedings were threatened did constitute, or if done would have constituted, an infringement of the copyright concerned.

(3)	Mere notification that work is protected by copyright does not constitute a threat of proceedings for the purposes of this section.

(4)	A copyright infringement report within the meaning of section 124A(3) of the Communications Act 2003, if notified to a subscriber under section 124A(4) of the Communications Act 2003, does constitute a threat of proceedings for the purposes of this section.""

Expect the entertainment industry lobbyists to be having a quiet word with Peter Mandelson about ensuring that one doesn't see the light of day.

Anopticon

From the ever terrific EDRI-gram, Italy: The Anopticon project - putting surveillance back in its place.

"Nowadays, CCTVs are the practical implementation of the "Panopticon", theorised in 1791 by Jeremy Bentham as the "ideal prison", one that keeps people in place by using their natural fear of being surveilled.
The Anopticon project is a reaction to the huge rise in CCTVs installations in Italian cities. Information on CCTVs - where they are, what they point at, which area is being surveilled - is collected by members of the project and put online, publicly accessible via the "Big Brother Viewer". The project has already concluded that a large part of CCTVs does not provide the "information notice" required by Legislative Decree 196/2003 (which implements the Data Protection Directive in Italy).
The project started in Venice, but it soon spread to other cities including Padova, Foggia, Urbino and Solero (Alessandria). More and more "anopticon groups" are born, to contribute to the Big Brother map. Anyone from anywhere can join in.
The Anopticon project has also launched the "Denounce illegal CCTVs" campaign: every surveillance device that does not respect Italian data protection law (including the need for an "information notice") will be signalled to the Italian Data Protection Authority, without excluding formal complaints for the more powerful and invasive surveillance systems such as the "Argos" and "Hydra" systems being implemented in Venice which are able to automatically track the movement of boats and people.
The Anopticon project - Big Brother Viewer
http://www.tramaci.org/anopticon"

Hmmm. Legislative Decree 196/2003? I wonder what the UK equivalent might be? I also see an opportunity for a Tony H. type mapping and consultation project here.

Ohio Court: police need warrant for cell phone search

Here's an interesting development - according to the Washington Post the Ohio Supreme Court has held that police officers must obtain a warrant before scanning the contents of a suspect's mobile phone.

"The Ohio Supreme Court said Tuesday police officers must obtain a search warrant before scouring the contents of a suspect's cell phone, unless their safety is in danger.
The American Civil Liberties Union of Ohio described the ruling as a landmark case."

Landmark case definitely. I don't know of any others that have come to a similar conclusion and it was a close call with a 4 to 3 majority ruling according to the Ohio court's own website.

"(Dec. 15, 2009) The Supreme Court of Ohio ruled today that the Fourth Amendment prohibition against unreasonable searches and seizures requires police to obtain a warrant before searching data stored in a cell phone that has been seized from its owner in the course of a lawful arrest when the search is not necessary to protect the safety of law enforcement officers and there are no exigent circumstances.
The Court’s 4-3 majority decision, which reversed a ruling of the 2^nd District Court of Appeals, was authored by Justice Judith Ann Lanzinger.
Antwaun Smith was arrested on drug-related charges after responding to a call to his cell phone that had been placed by a crack cocaine user acting as a police informant. During the arrest, police searched Smith and found a cell phone on his person.  The arresting officer put the cell phone in his pocket and placed Smith in a cruiser, then searched the scene for evidence. Later, police recovered bags containing crack cocaine at the scene. Officers subsequently searched the contents of Smith’s phone without a search warrant or his consent. They discovered call records and stored numbers that confirmed prior calls between Smith’s phone and the informant’s phone number...

...United States v. Finley... held that a cell phone is similar to a closed container found on an arrestee’s person and therefore subject to search by an arresting officer without a warrant...

...United States v. Park, which held that a cell phone is not a “container” as that term is used in prior Fourth Amendment cases, and that a warrantless police search of data stored in a defendant’s cell phone was unconstitutional...

In today’s decision, Justice Lanzinger wrote: “Smith bases his challenge on the Fourth Amendment to the United States Constitution, which provides protection against unreasonable searches and seizures. It is well established that searches conducted without a warrant are per se unreasonable, subject to certain ‘jealously and carefully drawn’ exceptions.’  Jones v. United States (1958).  ... The exception that the state relies on is the search incident to arrest, which allows officers to conduct a search that includes an arrestee’s person and the area within the arrestee’s immediate control. ... This exception ‘derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations.’ Arizona v. Gant (2009). ... But when the interests in officer safety and evidence preservation are minimized, the court has held that this exception no longer applies.”....

In this case, Justice Lanzinger wrote, “The state argues that we should follow Finley and affirm the court of appeals because the trial court was correct in its conclusion that a cell phone is akin to a closed container and is thus subject to search upon a lawful arrest. We do not agree with this comparison, which ignores the unique nature of cell phones. Objects falling under the banner of ‘closed container’ have traditionally been physical objects capable of holding other physical objects.  Indeed, the United States Supreme Court has stated that in this situation, ‘container’ means ‘any object capable of holding another object.’ New York v. Belton (1981).”   ...

“Although cell phones cannot be equated with laptop computers, their ability to store large amounts of private data gives their users a reasonable and justifiable expectation of a higher level of privacy in the information they contain,” wrote Justice Lanzinger.  “Once the cell phone is in police custody, the state has satisfied its immediate interest in collecting and preserving evidence and can take preventive steps to ensure that the data found on the phone is neither lost nor erased. But because a person has a high expectation of privacy in a cell phone’s contents, police must then obtain a warrant before intruding into the phone’s contents.”
“ ... We hold that the warrantless search of data within a cell phone seized incident to a lawful arrest is prohibited by the Fourth Amendment when the search is unnecessary for the safety of law-enforcement officers and there are no exigent circumstances. Because the state failed to show that either of these exceptions to the warrant requirement applied, the search of Smith’s cell phone was improper and the trial court was required to exclude from evidence the call records and phone numbers taken from the cell phone. We accordingly reverse the judgment of the court of appeals and remand to the trial court for proceedings consistent with this opinion.”
Justice Lanzinger’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer and Maureen O’Connor."

The dissenting opinions whilst accepting the notion of lots of private data on mobile phones nevertheless felt that the specific search at issue here "resembles police officers’ search of a traditional address book found on the person of an arrestee during a search incident to arrest", something which is allowable under the 4th amendment. Justice Cupp, dissenting said:

“The majority bases its broad holdings on its estimation of the possible capabilities of other cell phones and computers. But here only the address book and call records were admitted into evidence.  The issue of a more in-depth warrantless search of ‘data within a cell phone’ is not before us.  I would leave for another day, to a case that factually raises the issue directly, the question of whether police may perform more in-depth searches of information on cell phones that have capabilities akin to a computer.”

It is good to see a supreme court beginning to tackle such cases and getting a handle on a half decent analysis of new technologies. The full decision is available here.

Court bans Pystar's Apple clone sales permanently

From ComputerWorld:
"A federal judge yesterday officially banned Mac clone maker Psystar from selling computers with Apple's Leopard or Snow Leopard operating systems, effectively putting an end to a 17-month-old lawsuit...

The injunction, however, is more or less moot, as Psystar shut down its Mac clone business earlier this month when it struck a settlement deal with Apple that requires it to pay nearly $2.7 million in damages if it loses appeals to the next level."

Apologies for the formatting - I'm trying to post this through Internet Explorer, since I'm working at someone else's machine and IE and blogger don't seem to get along too well.

Solove on Privacy

Given the rash of articles on Google, Facebook and privacy this week, it would be a good time for anyone who really wants to understand the issue in the context of the information age to read some of Daniel Solove's work, in particular two terrific articles 'I've Got Nothing to Hide' and Other Misunderstandings of Privacy,  and A Taxonomy of Privacy and his books The Digital Person and Understanding Privacy.

ACTA timeline by Michael Geist

Michael Geist has very helpfully put together a dynamic ACTA timeline and committed to keeping it up to date. (Embedded below)

The ACTA Timeline on Dipity.

Cory on audiobooks

Cory Doctorow is fed up with DRM on audiobooks.

"
I probably could have “pirated” the same audiobooks more quickly—after all, it's not hard to find cracked Audible titles on the Internet. This is why I can't understand why publishers or writers opt for DRM. It clearly doesn't stop real pirates from copying, and it locks good customers into the DRM vendor's ecosystem. I wouldn't sell my books through a bookseller who demanded readers only enjoy them on a chair from Wal-Mart; why would I sell my audiobooks on terms that insist my listeners only use devices approved by a DRM vendor?
So, RHA and I went to Audible and politely asked them to sell Little Brother without DRM. They turned us down flat. And because Audible is the only retailer who can sell on iTunes, that closed the door on the largest distribution channel in the world for audiobooks.
For my next book, Makers, we tried again. This time Audible agreed to carry the title without DRM. Hooray! Except now there was a new problem: Apple refused to allow DRM-free audiobooks in the Apple Store—yes, the same Apple that claims to hate DRM. Okay, we thought, we'll just sell direct through Audible, at least it's a relatively painless download process, right? Not quite. It turns out that buying an audiobook from Audible requires a long end-user license agreement (EULA) that bars users from moving their Audible books to any unauthorized device or converting them to other formats. Instead of DRM, they accomplish the lock-in with a contract."

Mischief managed on data protection

In Harry Potter speak, mischief media managed: the government officials who briefed the Times columnist David Aranovitch, ahead of Justice Minister Michael Wills disingenous speech on data sharing, will be giving themselves a pat on the back over his rant criticising the authors of the Joseph Rowntree Reform Trust report The Database State.

The minister's speech and the Times article are so full of holes and dogma that it's hard to know where to start, so instead I will quote from William Heath's clinical dissection of the article:

"You’ve managed to work out Michael WiIls works for the government. But you’ve eaten up his chocolate-covered waffle without a sceptical glance.
Mr Wills also accepts that government must take blame for the poor level of debate because it has too often been “overly defensive and dismissive of criticism. Government believes it is acting benignly and legally and has not adequately recognised the fears of those who believe this is not the case.”
This is tripe. The poor level of debate on technology in public services isn’t because the government hasn’t been shoutey enough. It’s because the government is too assertive and indulges in groupthink, failing to take other views into account. At a shallow level they have a good intention, but they fail to realise the less desirable consequences of their ill-thought-out implementation.
I wouldn’t say there’s a deep underlying malevolence, but the poor manner in which they engage with others who have a different good intention is tantamount to malevolence. Your article illustrates this very well.
Central to this is their documented failure to listen effectively to the views of scientists (not that I claim to be one, but my co-authors are) and also of service users and front-line practitioners. This is why NHS CfH has failed, as even the government now admits, and why the ID Scheme and ContactPoint will fail."

In addition I'd can't help extracting one small sample from the minister's speech:

"ContactPoint was developed in response to a key recommendation of Lord Laming's inquiry into the tragic death of Victoria Climbié: to improve the exchange of information between different agencies working with children. But I am aware that ContactPoint has attracted a lot of interest and given rise to some concerns – and some misunderstandings. So Delyth Morgan and I want to hear views about ContactPoint from users and practitioners and explore these in light of the facts about the directory and feedback received from early adopters."

The UK government has been informed repeatedly and in great detail by world renowned security, information systems and child protection specialists that you cannot secure a database with the personal details of over 10 million people, when more than a third of a million people need to have routine access to that database as a regular part of their jobs.  Yet they are still talking about ContactPoint attracting "a lot of interest" and giving "rise to some concerns" and wanting to "hear views about ContactPoint".  This government has made such an art of collecting views on multiple policy areas, systematically ignoring them and dogmatically and blatantly continuing to pursue their ill-informed agenda, that it should not be a surprise that they are rolling out the same claptrap again.  It must be seriously annoying, however, for professionals who have invested a lot of effort in engaging and informing the government of the realities of modern technologies, to be subjected to the kind of attacks we hear from ministers and have seen in the Times this morning.  I'm annoyed and I wasn't even involved in writing the Rowntree report. Like William Heath I don't believe there is any deep underlying malevolence on the part of the government - most of them originally got into politics with the aim of helping people and making a difference.  But there comes a point at which the almost theological devotion to being 'on message', and the cultivation of blind ignorance in shutting out any information that contradicts that message, comes to have a malevolent effect.  Malevolence, intended or otherwise, becomes an emergent property of the system.

Recording industry sued for $billions in copyright infringement suit

According to Michael Geist the Candian recording industry in facing a lawsuit for copyright infringement that could end up costing them billions of dollars.

"Chet Baker was a leading jazz musician in the 1950s, playing trumpet and providing vocals. Baker died in 1988, yet he is about to add a new claim to fame as the lead plaintiff in possibly the largest copyright infringement case in Canadian history. His estate, which still owns the copyright in more than 50 of his works, is part of a massive class-action lawsuit that has been underway for the past year.
The infringer has effectively already admitted owing at least $50 million and the full claim could exceed $60 billion. If the dollars don't shock, the target of the lawsuit undoubtedly will: The defendants in the case are Warner Music Canada, Sony BMG Music Canada, EMI Music Canada, and Universal Music Canada, the four primary members of the Canadian Recording Industry Association...

The class action seeks the option of statutory damages for each infringement. At $20,000 per infringement, potential liability exceeds $60 billion.
These numbers may sound outrageous, yet they are based on the same rules that led the recording industry to claim a single file sharer is liable for millions in damages.
After years of claiming Canadian consumers disrespect copyright, the irony of having the recording industry face a massive lawsuit will not be lost on anyone, least of all the artists still waiting to be paid."

Latest Microsoft dispute in China

A friend of mine in China tells me that this court case involving Microsoft and a dispute over fonts, which I haven't paid a lot of attention to, has been a really big deal over there.  Apparently it's been all over the media, court hearings televised live and watched by millions and Microsoft have not been faring too well in the PR stakes as a result.

"The US software giant must not sell versions of Windows XP, 2003, 2000 or 98 software in the Asian super-economy after a Beijing court ruled the products include Chinese fonts designed by a local company.
The court said Microsoft had violated its licensing agreement with Zhongyi Electronic, which designs character fonts.
Microsoft said it plans to appeal the ruling, adding it "respects intellectual property rights" and uses the intellectual property of third parties "only when we have a legitimate right to do so"."

Said friend also tells me that the average woman on the Bejing omnibus has no concept of the notion of people being able to "own" intellectual property.  They have shared ideas for millenia - that's how the world gets better - copy, refine, re-mix, rework, improve.  It doesn't exactly harmonise then with Microsoft allegedly breaching local intellectual property regulations but she reckons they are being lambasted by the public more for being a global US corporation than for the specifics of their transgressions.  As I said I hadn't paid much attention to it so it was interesting to get a local perspective.

My keynote at and some thoughts about WIPO

I'm the lucky beneficiary of some unexpected space in my diary today due to a last minute cancellation of a meeting, so I've finally got around sticking the slides from my WIPO keynote a couple of weeks ago up on Slideshare (embedded below).

Wipo Key Role Of Tutors

View more presentations from rcorrigan.

I said at the time that I discovered some amazingly talented and dedicated people working within WIPO and likewise amongst their tutors from around the world. In the thick of all the complex politics and bureaucracy of the UN, these people have a really deep understanding of the issues and the importance of balance in international IP policy; and it was really interesting to hear, from the inside, of the energy underpinning the development agenda.

I should also thank Altaye Tedla and Caroline Storan at the WIPO academy who were very hospitable and do a tremendous job supporting 26,000 students all round the world.

Amongst the highlights of the workshop for me, in addition to the obvious opportunity to discuss IP policy with some deeply thoughtful and very well informed professionals from all across the globe - spanning the whole spectrum from IP expansionists to IP reductionists -  were Esteban Burrone's talk on evolving developments on the WIPO development agenda and Anotole Krattiger's session on the IP Handbook of Best Practices.

One of the biggest problems faced by the WIPO academy, their tutors and students is the issue of lack of access to educational resources:

• Teaching resources
• Case studies
• Articles
• Books
• Teaching activities
• Region/jurisdiction specific resources/tools
• Library resources
• Online databases
• Primary legal materials

The WIPO academy produces generic courses which are taught globally but then the tutors struggle to get access to resources to be able to tailor the materials to the specific needs of their students across a wide range of jurisdictions for example.  Although they are working hard to find some compromise the WIPO library can't facilitate tutors' access to resources, as we do for our tutors at the Open University, because of copyright law and licensing restrictions, since the tutors and students are resident in so many different areas.

The irony of WIPO's mission to educate people about intellectual property being hindered by the state of copyright law and publishers' licensing restrictions was quite stark.

So it was good to learn, therefore, of a new, rich, open IP resource which I hadn't previously been aware of, the IP Handbook of Best Practices, which was released under a creative commons attribution share alike licence.  It's a terrific piece of work put together by Professor Krattiger with the help of over 200 experts and I'd encourage you to go and explore the website which is really well organised - not just restricted to the handbook but providing links to other publicly available materials such as IP database and search tools too.

Prof. Krattiger is very much the pragmatist, believing whatever the state of affairs in the battle between IP expansionists and reductionists and whatever the prevailing wind on the state of balance in the system, we have to make it work through making deals in the marketplace. If the rules don't suit you, draw up a contract that does and start negotiating hard, is his primary advice - we need to stop worrying about IP regulations and start focussing on IP management.  He advocates a high standard of ethical behaviour and professionalism in licencing neogtiations, particularly important in the agriculture and health sectors he has specialised in for many years.  Ethical stewartship of intellectual property is really important in the management of our knowledge commons.  Presumably the thinking is that with a wide portfolio of working deals in the market then the regulations will follow on.

I couldn't agree more that we need ethical stewartship of IP but I'm not sure there is a lot of evidence for this in the IP marketplace, which tends to be amoral.  I don't necessarily share Prof Krattiger's optimism that the intellectual property landscape will be rebalanced equitably through the market but we did agree on one aspect of the confusion surrounding patents.  Very often in public discussions about patents two things get confused

• access and
  
• incentive to innovate

He believes that if we disentangle the strategies for access to Aids drugs in Africa, for example, from strategies to encourage innovations in the development of further improved Aids treatments, we will make more progress, on access and development of improved drugs, much more quickly.  The system has not prevented the development of treatments - there are AIDs drugs but the problem in poorer countries is the lack of access to these drugs that could help the condition of millions of Aids sufferers.

It is a general feature of public debates on intellectual property that crucial and separate issues get confused in this way, sometimes deliberately to shape the agenda and sometimes through simple confusion.  But as long as the intellectual property regulations themselves continue to hinder access to knowledge in this and other areas, and the debate continues to get framed and disproportionately influenced by commercial institutions and lobbyists with a vested interest in particular outcomes, then the confusion is not going to get cleared up any time soon.

Thanks again to Altaye Tedla, Caroline Storan, Glyn Martin and Mrs Gao Hang for their hospitality and all the work they put into making the workshop such a success; and thanks to all the delegates for making an outsider so welcome (and for all your positive feedback).

Music label accountancy

With the exception of one short sentence in the middle this blog post from a member of the band Too Much Joy is just about the politest description of music label accounting disadvantaging artists that I've seen anywhere.

"A word here about that unrecouped balance, for those uninitiated in the complex mechanics of major label accounting. While our royalty statement shows Too Much Joy in the red with Warner Bros. (now by only $395,214.71 after that $62.47 digital windfall), this doesn’t mean Warner “lost” nearly $400,000 on the band. That’s how much they spent on us, and we don’t see any royalty checks until it’s paid back, but it doesn’t get paid back out of the full price of every album sold. It gets paid back out of the band’s share of every album sold, which is roughly 10% of the retail price. So, using round numbers to make the math as easy as possible to understand, let’s say Warner Bros. spent something like $450,000 total on TMJ. If Warner sold 15,000 copies of each of the three TMJ records they released at a wholesale price of $10 each, they would have earned back the $450,000. But if those records were retailing for $15, TMJ would have only paid back $67,500, and our statement would show an unrecouped balance of $382,500.
I do not share this information out of a Steve Albini-esque desire to rail against the major label system (he already wrote the definitive rant, which you can find here if you want even more figures, and enjoy having those figures bracketed with cursing and insults). I’m simply explaining why I’m not embarrassed that I “owe” Warner Bros. almost $400,000. They didn’t make a lot of money off of Too Much Joy. But they didn’t lose any, either. So whenever you hear some label flak claiming 98% of the bands they sign lose money for the company, substitute the phrase  “just don’t earn enough” for the word “lose.”"

Read the whole post however. It's well worth it. Thanks to Glyn Moody for the pointer.

Update: 1709 Copyright blog commentary on this is well worth a read.

UK government consultation on sharing data on electoral roll

The UK Ministry of Justice is running a consultation on whether it would be a good idea to abolish the edited version of the electoral roll, in other words the version that the government sells to commercial and other organisations. The consultation document explains the context in its foreword:

"In July 2008, Dr Mark Walport1 and Richard Thomas2 undertook a review of the framework within which personal information is used in the public and private sectors: the Data Sharing Review3. As part of that Review, they recommended that the Government should remove the provision in law which allows for the sale of the Edited Register4 and abolish the Edited Register. As a result of the Review’s findings, the Government committed to consult on the future of the Edited Register.
The Electoral Commission and the Association of Electoral Administrators have argued that the electoral register should primarily be used for electoral purposes. Dr Mark Walport and Richard Thomas argued in the Data Sharing Review that:
“…selling the edited register is an unsatisfactory way for local authorities to treat personal information. It sends a particularly poor message to the public that personal information collected for something as vital as participation in the democratic process can be sold to ‘anyone for any purpose’. And there is a belief that the sale of the electoral register deters some people from registering at all.”
Any proposal that would change the nature and operation of the Edited Register could have an effect on those organisations that currently use it, as well as the public. This consultation is intended to enable us to build a firmer evidence base about the advantages and disadvantages of the Edited Register and the impact of any changes, and to consider the way forward on the basis of the responses we receive."

Also from the executive summary:

"The Edited Register came into existence in 2002 when the Government introduced Regulations to establish a new framework governing access to and the supply and sale of electoral registers. This followed the recommendation made by the Final Report of the Working Party on Electoral Procedures5 (“The Howarth Report”) and the judgment made in a court case (Robertson6) brought by an elector concerned about the use of his electoral data for commercial purposes. Prior to 2002, the full electoral register could be made available for a variety of purposes. Any company, organisation or person could buy a copy.
As a result of the Representation of the People (England and Wales) (Amendment) Regulations 20027 (subsequently referred to as “the 2002 (Amendment) Regulations”) there are now two versions of the electoral register: a full version, and an edited version of the full register. The latter is known as the Edited Register and shows only the names and addresses of those on the full register who have not ‘opted out’ of inclusion in the edited version.
Unlike the full electoral register, the supply and use of which is strictly regulated in law, the Edited Register is available for sale to anyone for any purpose. Members of the public may choose to have their details omitted from the Edited Register by ‘opting out’ by ticking the box included for the purpose on the form used for the annual canvass, which is sent to each household on a yearly basis to determine the names of those to be included on the electoral register. Once produced, the Edited Register is used by a number of groups like charities and businesses for a variety of purposes including, but not limited to, compiling mailing lists."

So the consultation is being set up in response to criticisms about the sale of electoral roll details but interestingly, amongst the options in the questionaire the government is using, option 3 considers widening the commerical access to the details on the full register:

"Question 6. From the list below, which options are your most and least preferred? Please give reasons.

Options abolishing the Edited Register

Option 1: Abolish the Edited Register as soon as practicable.

Option 2: Set a timescale or ‘trigger point’ for abolition of the Edited Register.

Option 3: Abolish the Edited Register as soon as practicable, but extend access to the Full Register for other purposes to be decided in light of the consultation.

Options retaining the Edited Register

Option 4: Retain the Edited Register, but impose restrictions in legislation on who can purchase it and for what purposes.

Option 5: Replace the current ‘opt out’ provision with an ‘opt in’.

Option 6: Improve guidance for the public about the Edited Register."

I tick the opt out box on the form every year, so would be firmly opposed to extending access to the full register, i.e. option 3 above.

Digital economies bill takes aim at public wi-fi

Professor Lilian Edwards was in fine form in the Guardian yesterday pointing out how the government's digital economies bill is aimed, amongst other things, at banning public wi-fi networks.

"A lot of people have talked to me over the last week about Wi-Fi (open and closed, i.e. password-protected) and the Digital Economy bill. The more I try to find answers, the more ludicrous it becomes. For instance, last week it turned out that a pub owner was allegedly fined £8,000 because someone downloaded copyright material over their open Wi-Fi system. Would that get worse or better if the Digital Economy bill passes in its present form?
To illustrate, I'm going to pick my favourite example of a potentially worried wireless network provider: my mum.
She doesn't understand or like the internet, refuses to even think about securing her Wi-Fi network. What is her legal status? What will she say if/when she receives warnings under the Digital Economy bill because someone has used her open Wi-Fi to download infringing files?"

Highly recommended. It's a natural deduction from the argument that someone running an open wi-fi network cannot be expected to know who might be using that network illicitly, that the way to deal with this is to ban open wi-fi networks. This, however, as Lilian so eloquently illustrates, leads to further unintended consequences. And so we have the bad Net policy domino effect, where 3 strikes leads to banning public wi-fi leads to... and all because Peter Mandelson doesn't understand the Internet.

EU ACTA analysis leaks

Michael Geist notes that the EU analysis of US ACTA proposals has leaked.

"The European Commission analysis of ACTA's Internet chapter has leaked, indicating that the U.S. is seeking to push laws that extend beyond the WIPO Internet treaties and beyond current European Union law (the EC posted the existence of the document last week but refused to make it publicly available).  The document contains detailed comments on the U.S. proposal, confirming the U.S. desire to promote a three-strikes and you're out policy, a Global DMCA, harmonized contributory copyright infringement rules, and the establishment of an international notice-and-takedown policy."

Lilian Edwards on the Digital Economies Bill

Look no further than Lilian Edwards' blog for a terrific analysis of Peter Mandelson's 3 strikes proposals published in the UK government's digital economy bill last week.

"Clauses 4-17 of the Digital Economy Bill introduce an “initial obligations” regime for ISPs, whereby subscribers accused of filesharing by rightsholders will be sent warnings of alleged copyright infringements, or “strikes”, by their ISPs; and a “technical measures” phase, to be green-lit only after evidence has been amassed that warnings do not work (but see below), which will allow sufficiently warned offenders who still seem not to have seen the error of their ways to be disconnected from the Internet. Traffic slowing and banning of access to certain sites eg the Pirate Bay, may also become available measures.

The Bill also, almost as an after thought, adds a “Henry VIII” clause, which allows the relevant Secretary of State (currently Lord Mandelson of Mordor sorry BIS) to make new copyright law in any area of Parts 1 and 7 of the Copyright, Design and Patents Act 1988 (CDPA), by statutory instrument (SI) not primary legislation, if justified by speed of technological developments (even ones that haven’t happened yet – see proposed new s 302A of the CDPA.) So essentially, new and important copyright laws (not exclusively to do with filesharing – DRM, fair dealing and user rights might all be affected) are to be made under the public radar, and without proper Parliamentary scrutiny. anytime, anywhere (hereafter, the “Martini clause”).

There has been a great deal of coverage of these matters – see eg here and here – so I will only point out a few matters of detail which have struck me as particularly worrying, on top of my, er, well-ventilated previous concerns about the principle of a regime of “three strikes” at all. Most of the press attention has focused on the posited disconnection regime, since of course the sanction is so far reaching. But the warnings regime, which if the Bill passes is likely to be of more immediate concern, is also staggeringly poorly drafted"

See also Lilian's follow ups on Thursday and Saturday. Read, re-read and inwardly digest and it would be good, if unlikely, if policymakers did likewise.

The Google books settlement an abuse of the class action process?

Pamela Samuelson has a great article on the Google book settlement in The Nation.

"The GBS agreement is, however, less a settlement of a class action lawsuit than a
forward-looking commercial joint venture that far exceeds in scope the scanning-to-index
issue being litigation. Class action settlements typically resolve only the specific dispute
between the parties. The more forward-looking the settlement, the broader its scope, the
broader the class, and the more the deal tries to release the defendant from liability for
future conduct, especially conduct different in kind from the litigated issue, the less likely
it is that judges will approve it. The GBS deal is troublesome on all four grounds.
Moreover, serious questions exist about whether the authors and publishers who
negotiated the settlement adequately and fairly represented the interests of the class as a
whole."

Update: See also Prof. Samuelson's thoughts on the politics of the negotiations involving France and Germany.

UK jails schizophrenic under RIPA

The first person to be jailed in the UK for refusing to disclose the keys to decrypt his computer files is someone with a confirmed formal dianosis of schizophrenia, according to the Register.

"The first person jailed under draconian UK police powers that Ministers said were vital to battle terrorism and serious crime has been identified by The Register as a schizophrenic science hobbyist with no previous criminal record.
His crime was a persistent refusal to give counter-terrorism police the keys to decrypt his computer files...

 News that the first person jailed for the offence of not talking in a police interview has been judged no threat to national security and suffers from a mental condition associated with paranoia and a fear of authorities is unlikely to win RIPA Part III new supporters."

WIPO Academy Workshop

I've just spent a really interesting couple of days at the WIPO Academy in Geneva at their training and design workshop for distance learning tutors and administrators.  I was there to talk about distance learning rather than IP but had some fascinating discussions with people from all over the world with a wide range and highly informed set of perspectives on the IP landscape.  There are some amazingly talented and dedicated people working within WIPO and likewise amongst their tutors from around the world. In the thick of all the complex politics and bureaucracy of the UN, these people have a really deep understanding of the issues and the importance of balance in international IP policy; and it was really interesting to hear, from the inside, of the energy underpinning the development agenda. I'll post some more collected thoughts on the workshop and the slides from my keynote address here when I get some time and space.

Google want to help us find the laws that govern us

Google want to help us find the laws that govern us.

"As many of us recall from our civics lessons in school, the United States is a common law country. That means when judges issue opinions in legal cases, they often establish precedents that will guide the rulings of other judges in similar cases and jurisdictions. Over time, these legal opinions build, refine and clarify the laws that govern our land. For average citizens, however, it can be difficult to find or even read these landmark opinions. We think that's a problem: Laws that you don't know about, you can't follow — or make effective arguments to change.

Starting today, we're enabling people everywhere to find and read full text legal opinions from U.S. federal and state district, appellate and supreme courts using Google Scholar. You can find these opinions by searching for cases (like Planned Parenthood v. Casey), or by topics (like desegregation) or other queries that you are interested in. For example, go to Google Scholar, click on the "Legal opinions and journals" radio button, and try the query separate but equal. Your search results will include links to cases familiar to many of us in the U.S. such as Plessy v. Ferguson and Brown v. Board of Education, which explore the acceptablity of "separate but equal" facilities for citizens at two different points in the history of the U.S. But your results will also include opinions from cases that you might be less familiar with, but which have played an important role.

We think this addition to Google Scholar will empower the average citizen by helping everyone learn more about the laws that govern us all. To understand how an opinion has influenced other decisions, you can explore citing and related cases using the Cited by and Related articles links on search result pages. As you read an opinion, you can follow citations to the opinions to which it refers. You can also see how individual cases have been quoted or discussed in other opinions and in articles from law journals. Browse these by clicking on the "How Cited" link next to the case title. See, for example, the frequent citations for Roe v. Wade, for Miranda v. Arizona (the source of the famous Miranda warning) or for Terry v. Ohio (a case which helped to establish acceptable grounds for an investigative stop by a police officer).

As we worked to build this feature, we were struck by how readable and accessible these opinions are. Court opinions don't just describe a decision but also present the reasons that support the decision. In doing so, they explain the intricacies of law in the context of real-life situations. And they often do it in language that is surprisingly straightforward, even for those of us outside the legal profession. In many cases, judges have gone quite a bit out of their way to make complex legal issues easy to follow. For example, in Korematsu v. United States, the Supreme Court justices present a fascinating and easy-to-follow debate on the legality of internment of natural born citizens based on their ancestry. And in United States v. Ramirez-Lopez, Judge Kozinski, in his dissent, illustrates the key issue of the case using an imagined good-news/bad-news dialogue between the defendant and his attorney.

We would like to take this opportunity to acknowledge the work of several pioneers, who have worked on making it possible for an average citizen to educate herself about the laws of the land: Tom Bruce (Cornell LII), Jerry Dupont (LLMC), Graham Greenleaf and Andrew Mowbray (AustLII), Carl Malamud (Public.Resource.Org), Daniel Poulin (LexUM), Tim Stanley (Justia), Joe Ury (BAILII), Tim Wu (AltLaw) and many others. It is an honor to follow in their footsteps. We would also like to acknowledge the judges who have built this cathedral of justice brick by brick and have tried to make it accessible to the rest of us. We hope Google Scholar will help all of us stand on the shoulders of these giants."

The most radical copyright proposal ever?

Cory Doctorow is very concerned at the latest plans from the UK government on copyright reform.

"A source close to the British Labour Government has just given me reliable information about the most radical copyright proposal I've ever seen.
Secretary of State Peter Mandelson is planning to introduce changes to the Digital Economy Bill now under debate in Parliament. These changes will give the Secretary of State (Mandelson -- or his successor in the next government) the power to make "secondary legislation" (legislation that is passed without debate) to amend the provisions of Copyright, Designs and Patents Act (1988).
What that means is that an unelected official would have the power to do anything without Parliamentary oversight or debate, provided it was done in the name of protecting copyright. Mandelson elaborates on this, giving three reasons for his proposal:
1. The Secretary of State would get the power to create new remedies for online infringements (for example, he could create jail terms for file-sharing, or create a "three-strikes" plan that costs entire families their internet access if any member stands accused of infringement)
2. The Secretary of State would get the power to create procedures to "confer rights" for the purposes of protecting rightsholders from online infringement. (for example, record labels and movie studios can be given investigative and enforcement powers that allow them to compel ISPs, libraries, companies and schools to turn over personal information about Internet users, and to order those companies to disconnect users, remove websites, block URLs, etc)
3. The Secretary of State would get the power to "impose such duties, powers or functions on any person as may be specified in connection with facilitating online infringement" (for example, ISPs could be forced to spy on their users, or to have copyright lawyers examine every piece of user-generated content before it goes live; also, copyright "militias" can be formed with the power to police copyright on the web)
Mandelson is also gunning for sites like YouSendIt and other services that allow you to easily transfer large files back and forth privately (I use YouSendIt to send podcasts back and forth to my sound-editor during production). Like Viacom, he's hoping to force them to turn off any feature that allows users to keep their uploads private, since privacy flags can be used to keep infringing files out of sight of copyright enforcers.
This is as bad as I've ever seen, folks. It's a declaration of war by the entertainment industry and their captured regulators against the principles of free speech, privacy, freedom of assembly, the presumption of innocence, and competition.
This proposal creates the office of Pirate-Finder General, with unlimited power to appoint militias who are above the law, who can pry into every corner of your life, who can disconnect you from your family, job, education and government, who can fine you or put you in jail.
More to follow, I'm sure, once Open Rights Group and other activist organizations get working on this. In the meantime, tell every Briton you know. If we can't stop this, it's beginning of the end for the net in Britain."

Update: The Guardian has picked up the story.

Ireland, the world cup and a disappointed young man

My younger son came charging into our bedroom early this morning full of excitement and demanding to know "Did they win, did they win?"

Sadly I had to disappoint him.  No Ireland had been knocked out of the world cup by France.  The slump from excitement to despair was instant.  Then to make it worse I had to tell him that a player he has idolised for years, Thierry Henry, had handled the ball before setting up the goal which put France through.  Football means a lot when you are ten.  To have your favorite team beaten because one of your favorite players cheated is really hard to take.

FIFA won't care.  They fixed the playoffs to avoid France and Portugal having to play each other and France and Portugal duly went through.  The manner of that qualification really doesn't matter to the organisation that stinks to the core, an organisation which will be active in sweeping this incident under the carpet as quickly as possible.  It's only Ireland.  They are not important.  It will all be forgotten about tomorrow.  It will certainly be forgotten about by the time France are playing in South Africa next year.

So what to you say to a 'gutted' ten-year-old?  Sometimes things go against you on the football pitch and in life.  You've gotta pick yourself up, dust yourself off and start all over again, as the old song says.  You've also got to realise that that game from Saturday to Wednesday involved 310 minutes or so of football.  Ireland had several chances to put the game beyond France in the 120 minutes last night and we didn't take them.  In addition the best reaction to cheating is to go right down the other end and beat them legitimately within the rules. Ireland had a further 15 minutes to do that but didn't quite manage it.  For the sake of moving on don't feel sorry for yourself because of an incident of blatant cheating but by all means do go and work harder to ensure justice and to change the system to make it fairer; and do also redouble that determination to go out and beat the odds the next time no matter how heavily they are stacked against you.

At the last world cup, then 7, he enthusiastically supported France - well mainly Thierry Henry and Zinedine Zidane - all the way through the tournament.  Will he be rooting for France at the finals next year?  I doubt it.

Apple edge ahead in the Psystar case

The WSJ is reporting that Apple has won a key ruling in the Psystar case.  Pamela Jones at the excellent Groklaw has the full story and is very blunt in her analysis.

"Psystar just got what's coming to them in the California case. Here's the order [PDF]. It's a total massacre. Psystar's first-sale defense went down in flames. Apple's motion for summary judgment on copyright infringement and DMCA violation is granted. Apple prevailed also on its motion to seal...

You're surprised? I told you, I told you, I told you. So, to those who feel crushed at the moment, there could be an appeal, I suppose. And if you want freedom for your code, you certainly can find it on Planet Earth. Look in the right direction. You'll be happy you did, because you can hack away to your heart's content, and it's perfectly legal. The court's message is clear: EULAs mean what they say; if you don't want to abide by its license, leave Apple's stuff alone.
We have the order for you as text.

On the first sale defense, you'll find it in the section on distribution right and Section 109:

Apple contends that Psystar has violated its distribution right by offering and selling Mac OS X on Psystar computers to the public. Psystar admits that it has distributed Mac OS X (Chung Exh. 17 at 4). But Psystar responds that its conduct is protected by the Section 109 first-sale doctrine. Section 109 provides that "the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord." 17 U.S.C. 109. This provision is a limitation on the distribution right. It applies only to an owner of a copy.
The parties spill much ink on whether Psystar was the owner or a licensee of the copy (i.e., the tangible copy) of Mac OS X that it purchased. Even assuming arguendo that Psystar was the owner of a copy, the first-sale defense fails here. Section 109 provides immunity only when copies are "lawfully made." The copies at issue here were not lawfully manufactured with the authorization of the copyright owner. As stated, Psystar made an unauthorized copy of Mac OS X from a Mac mini that was placed onto an "imaging station" and then used a "master copy" to make many more unauthorized copies that were installed on individual Psystar computers. The first-sale defense does not apply to those unauthorized copies. See Microsoft Corp. v. Software Wholesale Club, Inc., 129 F. Supp. 2d 995, 1006 (S.D. Tex. 2000) ("the first-sale doctrine does not apply to an admittedly counterfeit unit"); see also 2-8 NIMMER ON COPYRIGHT § 8.12 ("if the manufacture of a copy or phonorecord constitutes an infringement of the reproduction or adaptation right, its distribution will infringe the distribution right, even if this is done by the owner of such copy or phonorecord").

Catch that? Even if Psystar were the lawful owner of the copy, it still can't do what it did...

And to those who argue that all that matters is that open source is a better way to develop code, let this case be a warning message. Apple makes fabulous code. Of course, the BSD community did a lot of it for them, but Apple makes it all just work for end users, and they do that beautifully. So no one can argue that for end users it is not fabulous code. It is.
So here is my question: is that enough?
Or isn't the message of this case that what you really want with your fabulous code is freedom for the code? If you answer yes, I want freedom to do what I want with code on my home computer, then why use proprietary code? Proprietary vendors are happy to sell you the best code in the world, if they have it. But they won't sell you freedom to use it any way you want. That's not the business they are in.
So, if freedom matters to you, don't sell out the goal of a completely free operating system, without any proprietary blobs at all. There is a purpose to that goal, because proprietary blobs mean restrictions on use. That is a given. There are other negatives, but that one is the one this case highlights. So work for drivers that are not proprietary. Stay away from code that you believe has potential patent infringement claims. Why? Because a short-term seeming advantage can block the end result you want. It will provide a Brand X solution that takes you on a detour away from your goal. So when folks tell you that all that matters is that the code be open source or that end users should have the right to put proprietary code together with free and open source code if they want to, or that partnering with Microsoft will work out well, or that what matters is that end users use more free software by using proprietary-free mixtures, ask yourself, is that really true? No matter who says it, is it true? Look at the Apple v. Psystar case. Freedom matters. Some things are just obvious."

ACTA 101

Michael Geist recently gave a terrific 20 minute talk on 'Everything you need to know about ACTA but didn't know to ask'. Embedded below.

Minister promotes ID cards as useful for getting into clubs/bars

This is almost patheticially hilarious.  The foundation of the government's anti-terrorist, immigration control, crime fighting, benefit fraud detection etc. etc. strategies, the great all-conquering biometric ID card, is now being promoted by Home Office minister, Meg Hillier, as a 'convenient' way for young people to prove their age to get into nightclubs and bars.

I missed this from Phillip Virgo in Computer Weekly last week.  Thanks to Andrew Watson via FIPR for the pointer.

""The still calm voice that drives the strongest of men to panic". Today the Audit Commission  launched a discussion paper "Nothing but the Truth" to start "a discussion on how to ensure that data on local public services is fit for purpose". Read it. Think. Then be afraid. Because some of the data on the files of central government is much worse.

The paper raises profound issues regarding the quality of information used by Central and Local government for policy formation and resource allocationlet alone decisions affecting the lives, livelihoods, health, welfare and freedom of individuals.

The reasons why the base data is so bad include widespread and long-standing ignorance of the basic disciplines of information management not only across public and private sector but also among those selling "solutions" to them."

Recommended.

DNA of innocents to be retained for 6 years

The Guardian may have jumped the gun in reporting 3 weeks ago that the government was dropping plans for legislation on the retention of DNA of people never changed or convicted of a criminal offence. The folks at the Telegraph seem to think that the retention of DNA of innocents for 6 years is still very much on the table.

The general confusion surrounding this type of issue and the interception modernisation programme is likely to be a continuing feature of the briefing and counter-briefing going on, the manoeuvring in preparation for a general election next year by all political parties (and preparation of government officials expecting a change of administration), and the limited time left to the new labour government to implement new laws.  We can expect lots of tough on crime and terrorism proposals from the government and opposition in the run up to the election though.

The Madrid Privacy Declaration

The Madrid Privacy Declaration

3 November 2009

Affirming that privacy is a fundamental human right set out in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and other human rights instruments and national constitutions;
Reminding the EU member countries of their obligations to enforce the provisions of the 1995 Data Protection Directive and the 2002 Electronic Communications Directive;
Reminding the other OECD member countries of their obligations to uphold the principles set out in the 1980 OECD Privacy Guidelines;
Reminding all countries of their obligations to safeguard the civil rights of their citizens and residents under the provisions of their national constitutions and laws, as well as international human rights law;
Anticipating the entry into force of provisions strengthening the Constitutional rights to privacy and data protection in the European Union;
Noting with alarm the dramatic expansion of secret and unaccountable surveillance, as well as the growing collaboration between governments and vendors of surveillance technology that establish new forms of social control;
Further noting that new strategies to pursue copyright and unlawful content investigations pose substantial threats to communications privacy, intellectual freedom, and due process of law;
Further noting the growing consolidation of Internet-based services, and the fact that some corporations are acquiring vast amounts of personal data without independent oversight;
Warning that privacy law and privacy institutions have failed to take full account of new surveillance practices, including behavioral targeting, databases of DNA and other biometric identifiers, the fusion of data between the public and private sectors, and the particular risks to vulnerable groups, including children, migrants, and minorities;
Warning that the failure to safeguard privacy jeopardizes associated freedoms, including freedom of expression, freedom of assembly, freedom of access to information, non-discrimination, and ultimately the stability of constitutional democracies;
Civil Society takes the occasion of the 31st annual meeting of the International Conference of Privacy and Data Protection Commissioners to:
(1) Reaffirm support for a global framework of Fair Information Practices that places obligations on those who collect and process personal information and gives rights to those whose personal information is collected;
(2) Reaffirm support for independent data protection authorities that make determinations, in the context of a legal framework, transparently and without commercial advantage or political influence;
(3) Reaffirm support for genuine Privacy Enhancing Techniques that minimize or eliminate the collection of personally identifiable information and for meaningful Privacy Impact Assessments that require compliance with privacy standards;
(4) Urge countries that have not ratified Council of Europe Convention 108 together with the Protocol of 2001 to do so as expeditiously as possible;
(5) Urge countries that have not yet established a comprehensive framework for privacy protection and an independent data protection authority to do so as expeditiously as possible;
(6) Urge those countries that have established legal frameworks for privacy protection to ensure effective implementation and enforcement, and to cooperate at the international and regional level;
(7) Urge countries to ensure that individuals are promptly notified when their personal information is improperly disclosed or used in a manner inconsistent with its collection;
(8) Recommend comprehensive research into the adequacy of techniques that deidentify; data to determine whether in practice such methods safeguard privacy and anonymity;
(9) Call for a moratorium on the development or implementation of new systems of mass surveillance, including facial recognition, whole body imaging, biometric identifiers, and embedded RFID tags, subject to a full and transparent evaluation by independent authorities and democratic debate; and
(10) Call for the establishment of a new international framework for privacy protection, with the full participation of civil society, that is based on the rule of law, respect for fundamental human rights, and support for democratic institutions.

3 November 2009
Madrid, Spain

IMP consultation responses published; IMP postponed?

The UK government has published a summary of the responses to its public consultation on its proposed interception modernisation programme (IMP), or as it prefers to call it: "Protecting the public in a changing communications environment".

"The 221 respondents comprised 167 members of the public and 54 organisations including communications services providers, industry bodies, public authorities and campaign groups. A list of the respondents is provided in Annex B.

90 respondents did not address the questions asked but objected generally to the paper, almost invariably on the grounds of opposition in principle to any sort of surveillance. The percentages given below (in relation to each of the questions asked) therefore only relate to the 131 responses which provided a positive or negative response to the consultation’s specific questions. Where the percentages do not add up to 100% the balance is due to answers that addressed the specific question without being clearly negative or positive.

The main themes to emerge in responses were:

• widespread (but not unanimous) recognition of the importance of communications data in protecting the public;
• widespread appreciation of the challenges which rapidly changing technology poses;
• some support for the Government’s proposed ways of meeting these challenges;
• but also concerns about whether the Government’s proposals would be technically feasible or would impose unreasonable burdens on industry;
• some concern about whether the assessment of the balance of costs and benefits of the Government’s proposals was realistic;
• a desire from a number of respondents for greater clarity on why existing legislation and regulations were not capable of meeting the Government’s stated requirements;
• but also a recognition, particularly amongst those involved in the communications industry, that current legislation and regulations relating to the collection, retention and processing of communications data, particularly third party data, would soon need to be updated in light of changing technology;
• concerns about protecting communications data, where both privacy and commercial interests were engaged; and
• calls for more judicial involvement, and greater visibility and public awareness of existing oversight mechanisms, in order to improve public confidence in the way public authorities use communications data to protect them...

Question 1: On the basis of this evidence and subject to current safeguards and oversight arrangements, do you agree that communications data is vital for law enforcement, security and intelligence agencies and emergency services in tackling serious crime, preventing terrorism and protecting the public?
YES
59% of respondents agreed...

NO
18% of respondents answered ‘no’ to question 1...

Question 2: Is it right for Government to maintain this capability by responding to the new communications environment?
YES
53%...

NO
22%...

Question 3: Do you support the Government’s approach to maintaining our capabilities? Which of the solutions should it adopt?
YES
29%...

NO
38%...

Question 4: Do you believe that the safeguards outlined are sufficient for communications in the future?
YES
26%...

NO
50%...

D. CONCLUSION
The Home Office would like to thank all those who took the trouble to respond to this consultation.

The Government welcomes the recognition from a majority of respondents of the importance of communications data in protecting the public and that it is necessary to respond to rapidly changing technology in order to maintain this capability. It acknowledges that to improve confidence and trust in the use of communications data, and to demonstrate necessity and proportionality, it needs to continue to explain the importance of communications data, and the impact any loss of capability would have.

The Government will continue to develop the approach it proposed in the consultation document with a view to bringing forward the necessary legislation. In particular, it agrees with the significant view amongst respondents on the importance of safeguards and will ensure that the same strict safeguards that apply today will continue to minimise the potential for abuse and to ensure the safety and security of communications data under any new proposals. This view is strongly supported by public authorities that use communications data on behalf of the public.
The Government will also continue to work closely with communications service providers to ensure that any additional requirements will be feasible and reasonable, and to minimise, as far as possible, any impact on industry."

The Home Office also seems to have briefed some journalists to the effect that they have now decided to postpone IMP leglislation until after the election next year.

Update: The folks at the Telegraph seem to have talked to officials with a different view, i.e. that imp is going full steam ahead.

Spain rules out 3 strikes?

Just as they are about to assume the presidency of the EU in January 2010, the Spanish government has stated they are "not considering punitive measures for the end user of Internet", which is being read in some quarters as ruling out a 3 strikes law in Spain.

This is interesting, given that the compromise between the EU parliament and Council on amendment 138 to the telecoms package now could possilbly facilitate 3 strikes in member states which decided to introduce such schemes; and given that discussions on ACTA this week seem to be specifically (at least partly) about mandating 3 strikes regimes globally.

France have finally got their 3 strikes HADOPI law approved by the constitutional council.  Ireland have a partial 3 strikes regime since Eircom folded in their legal battle with the music industry and agreed to implement it, on condition the music companies sued Eircom's main competitors with the objective of getting them to implement 3 strikes too.  The UK government, at least in the form of Peter Mandelson, are now pushing strongly for a 3 strikes type approach here, though it's unlikely to go through before the general election next year; at which point Mr Mandelson may no longer be in a position to implement such a law (if as widely predicted the Conservative party, which has indicated they are opposed to 3 strikes, win an overall majority).  Germany is strongly opposed as are a number of other member states at the moment.  Spain's stance is important since it will influence the EU's legislative agenda over the next 6 to 8 months but it looks like 3 strikes will be a fluid issue for some time.

ACTA Internet chapter leak

Michael Geist helpfully points to the leaked ACTA Internet Chapter information available at Scribd.  Embedded below though you need a login ID and password to download from Scribd.

ACTA Internet Chapter info     

Jotwell

Michael Froomkin has pulled in an impressive list of contributors for an innovative looking new online journal Jotwell. In Michael's own words:

"Welcome to Jotwell: The Journal of Things We Like (Lots). Here you will find leading academics and practitioners providing short reviews of recent scholarship related to the law that the reviewer likes and thinks deserves a wide audience.
Jotwell is a special type of law review housed on a set of inter-linked blogs. As a law review, Jotwell has only one mission: to bring to readers’ attention great recent scholarship related to the law. As a blog we invite your comments, and hope that some of our reviews will spark a conversation.
On the Jotwell main page you should expect new content once or twice a week, although as we add more sections contributions may become more frequent. Each of the subject-specific sections will have something new at least once a month. In any case, every time a new review appears in any of the subject-specific sections, an excerpt with a link to the full text will also appear here on our front page at http://jotwell.com."

It's a great idea and a potential model for other subject matter right across the arts and sciences.  I wish them every success with it and hope to be able to carve out some space to follow developments.

UK Supreme Court first ruling: criminal records checks often go too far

In one of their first ever judgments, in R (on the application of L) (FC) (Appellant) v Commissioner of the Police of the Metropolis) (Respondent), the judges at the UK's new Supreme Court have ruled that criminal records checks often go too far.  The Court's press release summarises the judgement:

"The Supreme Court holds that, when determining whether to disclose non-criminal related
information retained in police records in connection with an application to work with
vulnerable persons, the police must give due weight to the applicant’s right to respect for her
private life. However, the facts narrated were true, the allegation was directly relevant to her
employment and the school was entitled to be apprised of the information.
Therefore, while the consequences for the appellant’s private life are regrettable, disclosure
could not in this case be said to be disproportionate to the public interest in protecting
vulnerable people [para [48], [49], [58] and [86]]. The appeal must be dismissed...

Amongst the reasons for the decision the summary lists:

 Those who apply for positions that require an ECRC cannot be regarded as consenting to their
privacy rights being violated. Consent is predicated on the basis that the right to respect for
private life will be respected [para [43]]. Otherwise, legislation could easily circumvent HRA
rights by effectively curtailing access to benefits unless people ‘consent’ to invasions of their
rights [para [73]].

 The police’s historic approach towards balancing the public interest in protecting vulnerable
persons and respecting Article 8 rights was flawed, as they applied a general presumption that
in cases of conflict the public interest should generally prevail [para [44]]. Article 8 requires
that neither consideration be afforded precedence over the other – each interest should be
given careful consideration in assessing the proportionality of the proposed disclosure [paras
[45], [63] and [85]]."

The Telegraph doesn't miss the opportunity to report on a dent in the state's big brother apparatus.

German Constitutional Court 1983: Mass surveillance is incompatible with a free and democratic society

Thanks to Douwe Korff via FIPR for this extract from the German Constitutional Court's famous 1983 Census-judgment:

“A social and legal order in which the citizen can no longer know who knows what and when about him and in which situation, is incompatible with the right to informational self-determination. A person who wonders whether unusual behaviour is noted each time and thereafter always kept on record, used or disseminated, will try not to come to attention in this way. A person who assumes, for instance, that participation in a meeting or citizen initiative is officially recorded, and may create risks for him, may well decide not to use the relevant fundamental rights ([as guaranteed in] Articles 8 and 9 of the Constitution). This would not only limit the possibilities for personal development of the individual, but also the common good, because self-determination is an essential prerequisite for a free and democratic society that is based on the capacity and solidarity of its citizens.”

WIPO Director General calls for transparency on ACTA

IP Watch, in Perpetual Protection Of Traditional Knowledge “Not On Table” At WIPO, report that the Director General of WIPO, Francis Gurry, has called for greater transparency on the ACTA negotiations.

"On the secretive Anti-Counterfeiting Trade Agreement, Gurry said that WIPO too did not know a great deal about the talks.
“Naturally we prefer open, transparent international processes to arrive at conclusions that are of concern to the whole world,” he said, citing WIPO’s role as an international, United Nations agency. And, he added, “IP is of concern to the whole world.”
On copyright protection in the internet age, the “problem we have is massive,” he said, citing the example of the newspaper industry and the music industry, both suffering as new technology necessitates changes in old business models.
This problem “deals with the financing of culture in the 21st century,” he added, saying that whatever legal model goes into place to facilitate cultural exchange “should be technology neutral.”
Gurry further mentioned the WIPO Development Agenda, reiterating that it aims to “mainstream development” throughout the UN agency, and is not intended to be “sitting in one corner of the organisation,” but rather should be reflected in “every single aspect of the organisation.”"

Well said.

Cory: 3 strikes denies physics and justice

Cory Doctorow was in sparkling form in this morning's Times with Denying physics won't save the video stars

"Peter Mandelson’s proposal to disconnect the families of internet users who have been accused of file sharing will do great violence to British justice without delivering any reduction in copyright infringement. We’ve had 15 years of dotty entertainment industry proposals designed to make computers worse at copying. It’s time that we stopped listening to big content and started listening to reason...

Proposing to terminate your access to the information society because you share living quarters with an accused copyright infringer is madness. The entertainment industry has mistaken the net for an apocalyptically uncontrolled entertainment medium. It wants to take charge of it so that it can be made into a medium more hospitable to its interests."

French Constitutional Council accepts 3 strikes

From the NYT:

"France thrust itself into the vanguard of the global battle against digital piracy on Thursday, approving a plan to deny Internet access to people who illegally copy music and movies.

The country’s highest constitutional court approved a so-called three-strikes law after rejecting the key portions of an earlier version last spring. Supporters say they hope that France, by imposing the toughest measures yet in the battle against copyright theft, will set a precedent for other countries to follow."

The NYT link may expire shortly but the news is reported in a variety of outlets.

EU Parliament give up on Amendment 138

La Quadrature du Net are unhappy with the revised version of amendment 138 to the telecoms package agreed by the Council and representatives of the EU parliament.

"Yesterday, representatives of the European Parliament, an institution that ordinarily prides itself for protecting human rights at home and abroad, decided to surrender to the pressure exerted by Member States. The Parliament gave up on amendment 138, a provision adopted on two occasions by an 88% majority of the plenary assembly, and which aims at protecting citizens' freedom in the online world. Instead of ensuring that no restriction to Internet access would be imposed without the prior ruling of a judge, amendment 138 will instead be replaced by a weak provision1, that does not carry any new important safeguard for citizen's freedoms.

European Parliament, who regularly boasts itself about its credentials in the field of human rights, has endorsed the false idea that it had no power in protecting their constituents' rights under current rules. This decision was taken consciously by rapporteur Catherine Trautmann, in order not to risk a confrontation with the Council of EU and to quickly finish with the Telecoms Package. She, along with the rest of the Parliament delegation deliberately ignored existing texts and case law pointing to the fact that it had the competence to adopt the core principles of amendment 1382. They didn't even try to reword the original amendment in order to preserve its initial objective."

The revised wording arguably facilitates the implementation of 3 strikes regimes in member states. Ultimately, however, as Lilian Edwards has argued so eloquently in the past, the 3 strikes approach is incompatible with a range of international human rights instruments. Also, in the end, the public just won't wear it if significant numbers of people start getting their internet access routinely cut off for suspected copyright infringement.