Friday, February 27, 2009

Academics write to UK minister on copyright term

From Sound Copyright:

In an open letter sent today to David Lammy, UK Minister for Innovation, some of the UK's most eminent economists and intellectual property scholars, have hit out at UK government proposals to consider changing policy on term extension. The letter, which has also been sent to the UK Cabinet Office, Treasury and Culture Minister, voices serious concern at the lack of evidence justifying a change that seems to show the Government prefers special interests over facts.

An extension of 20 years was the focus of discussion during the UK government's own review, led by the former Financial Times Editor Andrew Gowers, who looked at the evidence and concluded that any extension, whether by 5, 20 or 45 years, was a bad idea for consumers, creators and follow-on innovators.

So we certainly shouldn't be falling for the classic 'ask for double and settle for half' rouse today.

Longer copyright terms would put money into the hands of record companies and dead artists' estates, at the expense of royalties to musicians trying to earn money today. Yet the music companies peddle lies about supporting poor artists.

The Open Rights has been telling MEPs in Europe and in the UK that the evidence is against a copyright extension on music. But with a plenary vote set for late march the EU will force-feed it to us anyway unless we let MEPs know. We urge you again - write to your MEPs now!

Update: See also ORG's blog entry from 6th February Sound Copyright conference attacks the “fairy tale” of copyright term extension.

UK government plan to retain DNA in spite of European court ruling

The Guardian (front page) is reporting that the UK government is planning to keep the DNA samples taken from innocent people despite the pasting they took on the issue in European Court of Human Rights in December 2008. (The case was S. and Marper v. The United Kingdom but since the court website issues transient IDs for access to the decisions, you may just need to type 'Marper' into the hudoc search engine to locate the decision in full). To summarise from the Court's provisional annual report for 2008, (page 75):
"in the case of S. and Marper v. the United Kingdom27, the Grand Chamber found that the blanket and indiscriminate nature of the powers of retention by the authorities of the fingerprints, cellular samples and DNA profiles of persons suspected of committing offences but not convicted, as applied in the present case, particularly in respect of a minor, failed to strike a fair balance between the competing public and private interests. Accordingly, the indefinite retention in question constituted a disproportionate interference with the applicants’ right to respect for private life and could not be regarded as necessary in a democratic society."
And more detail from the Court's provisional Information Note 114:
Retention of fingerprints and DNA information in cases where defendant in criminal proceedings is acquitted or discharged: violation.
Conservation des empreintes digitales et données ADN des requérants après la conclusion, respectivement par un acquittement et par une décision de classement sans suite, des poursuites pénales menées contre eux : violation.
S. and/et MARPER - United Kingdom/Royaume-Uni (Nos. 30562/04 and 30566/04)
Judgment/Arrêt 4.12.2008 [GC]

Facts: Under section 64 of the Police and Criminal Evidence Act 1984 (PACE), fingerprints and DNA samples taken from a person suspected of a criminal offence may be retained without limit of time, even if the subsequent criminal proceedings end in that person's acquittal or discharge. In the case before the Court, both applicants had been charged with criminal offences but not convicted. The first applicant, an eleven year old minor, had been acquitted of attempted robbery while in a separate case proceedings against the second applicant for the alleged harassment of his partner had been formally discontinued after the couple reconciled. In view of the fact that they had not been convicted, the applicants asked for their fingerprints and cellular samples to be destroyed, but in both cases the police refused. Their applications for judicial review of that refusal were rejected in a decision that was upheld on appeal. Giving the lead judgment in the House of Lords, Lord Steyn noted that, even assuming there to have been an interference with the applicants' private life, it was very modest and was proportionate to the aim pursued, as the materials were only to be kept for limited purposes and were of no use without a comparator from the crime scene while an expanded database conferred enormous advantages in the fight against serious crime.
Law: (a) Interference: Given the nature and the amount of personal information contained in cellular samples, including a unique genetic code of great relevance to both the individual concerned and his or her relatives, and the capacity of DNA profiles to provide a means of identifying genetic relationships between individuals or of drawing inferences about their ethnic origin, the retention of both cellular samples and DNA profiles in itself amounted to an interference with the applicants' right to respect for their private lives. While the retention of fingerprints had less of an impact on private life than the retention of cellular samples and DNA profiles, the unique information fingerprints contained about the individual concerned and their retention without his or her consent could not be regarded as neutral or insignificant and also constituted an interference with the right to respect for private life.
(b) In accordance with law: Although, in view of its conclusions as to whether the interference was necessary in a democratic society, the Court did not find it necessary to decide whether the wording of section 64 of PACE met the “quality of law” requirements, it nevertheless noted that that provision was far from precise as to the conditions attached to and arrangements for the storing and use of the information contained in the samples and profiles and that it was essential to have clear, detailed rules governing the scope and application of such measures, as well as minimum safeguards.
(c) Legitimate aim: It was accepted that the retention of the information pursued the legitimate purpose of the prevention of crime by assisting in the identification of future offenders.
(d) Necessary in a democratic society: As to the scope of the Court's examination, the question before it was not whether the retention of fingerprints, cellular samples and DNA profiles could in general be regarded as justified under the Convention but whether their retention in the cases of the applicants, as persons who had been suspected, but not convicted, of certain criminal offences, was so justified. The core principles of the relevant instruments of the Council of Europe and the law and practice of the other Contracting States required retention of data to be proportionate in relation to the purpose of collection and limited in time, particularly in the police sector. The protection afforded by Article 8 would be unacceptably weakened if the use of modern scientific techniques in the criminal-justice system were allowed at any cost and without carefully balancing their potential benefits against important private-life interests. Any State claiming a pioneer role in the development of new technologies bore special responsibility for striking the right balance. In that respect, the blanket and indiscriminate nature of the power of retention in England and Wales was particularly striking, since it allowed data to be retained irrespective of the nature or gravity of the offence or of the age of the suspect. Likewise, retention was not limited in time and there existed only limited possibilities for an acquitted individual to have the data removed from the nationwide database or to have the materials destroyed. Nor was there any provision for independent review of the justification for the retention according to defined criteria. The risk of stigmatisation was of particular concern, with persons who had not been convicted of any offence and were entitled to the presumption of innocence finding themselves treated in the same way as convicted persons. Retention could be especially harmful in the case of minors such as the first applicant, given their special situation and the importance of their development and integration in society. In conclusion, the
blanket and indiscriminate nature of the powers of retention, as applied in the applicants' case, had failed to strike a fair balance between the competing public and private interests, and the respondent State had overstepped any acceptable margin of appreciation in that regard. Accordingly, the retention constituted a disproportionate interference with the applicants' right to respect for private life and could not be regarded as necessary in a democratic society.
Conclusion: violation (unanimously).
Article 41 – Finding of a violation constituted sufficient just satisfaction in respect of non-pecuniary damage. Respondent State to implement, under Committee of Ministers' supervision, appropriate general and/or individual measures."
To continue to insist on the retention of the DNA of innocents, in the face of such a damning and comprehensive indictment from the unaminous Grand Chamber of the Court, smacks of a complete lack of respect for private life and the rule of law.

Independent schools encourage opting out of ContactPoint

From the Times:
"The Independent Schools Council (ISC), which represents 1,280 fee- paying schools, has written to its members describing the new database, ContactPoint, as an “unjustified interference in the privacy of the majority of children and their carers”.

David Lyscom, chief executive of the ISC, wants schools to write to all parents warning them that ContactPoint “will put some children at risk through data theft or loss”. The ISC also warns parents that the database will contain such poor-quality data that it may create a “misleading or unhelpful” impression of their child."

CPS refuse to prosecute McKinnon

From the Washington Post:
"British prosecutors said Thursday they would not bring criminal charges against a London man accused of hacking into U.S. military computers. The decision is a blow to Gary McKinnon's attempts to avoid extradition to the United States.

U.S. prosecutors allege that McKinnon, 42, broke into 97 computers belonging to NASA, the Department of Defense and several branches of the military soon after the Sept. 11, 2001, attacks. McKinnon says he was looking for evidence of UFOs."

UN anti-blasphemy measures have sinister goals, observers say

"Islamic countries Monday won United Nations backing for an anti-blasphemy measure Canada and other Western critics say risks being used to limit freedom of speech."
Thanks to Glyn Moody via Twitter for the pointer.

Thursday, February 26, 2009

Microsoft sue Tomtom for patent infringement

From PC Mag :
"Microsoft sued GPS producer TomTom for patent infringement on Wednesday, claiming the Dutch company is using patented Microsoft technology without properly compensating the software giant."
Update: Glyn Moody has more details.

ID database breaches

Apparently the repeated "serious security breaches" of the one of the databases that will be at the centre of the UK government's ID card system (the Customer Information System (CIS) at Department for Work and Pensions) demonstrate that "security system is working and is protected by several different audit and monitoring controls". Welcome to the world of ID card salesmen where black is white...

Thanks to HJ Affleck at FIPR for the pointer.

Pirate Bay prosecution not going too well

According to a report in the latest (always excellent) EDRI-Gram, the prosecution don't seem to be making a lot of headway in the trial of the Pirate Bay folks in Sweden.
"he big, long and extremely mediatized trial filed on 31 January 2008 by Swedish prosecutors against the four Pirate Bay founders for "promoting other people's infringements of copyright laws" started at Stockholm's District Court, on 16 February 2009.

The first day of the trial was dedicated to the opening statements of the prosecution and the defendants, the latter denying any criminal act. Prosecutor Håkan Roswall presented the claims of the plaintiffs Warner Bros, MGM, EMI, Colombia Pictures, 20th Century Fox, Sony BMG and Universal and spent most of the morning trying to describe how the Pirate Bay works suggesting it was a commercial organization with Carl Lundström as a shareholder and financier of the company. The prosecutor made a presentation of a series of movie, music and game downloads "coordinated by The Pirate Bay" before 2006. He continued trying to explain the change from a seed status to that of a peer as part of the evidence previously gathered by the plaintiffs.

The civil parties represented by IFPI and MPAA expressed the intention to ask for 11 million euro damages.

The second day of the trial started with a big victory for The Pirate Bay founders with the dropping out of most part of the accusations against them. The prosecutor announced the defendants would not be accused of "assisting copyright infringement" changing the accusation into "assisting making available copyright material".

The prosecutor was unable to prove that the .torrent files introduced as evidence were actually using The Pirate Bay's tracker. Furthermore, he has shown to be technically unprepared and failed to explain the function of DHT which allows for so called "trackerless" torrents. This means the screenshots the prosecution provided as evidence did not necessarily belong to The Pirate Bay's tracker. Pirate Bay claimed it did not break the law because it did not host or disseminate copyright-infringing content but only links to that content and reproached the prosecution, the police and the music industry of not understanding the technology. According to Fredrik Neij, the entire accusation was based on a technical misunderstanding.

On 18 February, the prosecution asked for about 11 million euro compensation and damages on the basis that the defendants should have obtained worldwide licences for the content it distributed. The defence rejected any discussion related to damages considering there had been no damage. "EU directive 2000/31/EC says that he who provides an information service is not responsible for the information that is being transferred. In order to be responsible, the service provider must initiate the transfer. But the admins of The Pirate Bay don't initiate transfers. It's the users that do and they are physically identifiable people. They call themselves names like King Kong," was defence lawyer Samuelsson's statement to the court.

"According to legal procedure, the accusations must be against an individual and there must be a close tie between the perpetrators of a crime and those who are assisting. This tie has not been shown. The prosecutor must show that Carl Lundström personally has interacted with the user King Kong, who may very well be found in the jungles of Cambodia," the lawyer added.

The plaintiffs insited on The Pirate Bay's behaviour that refused to withdraw the .torrent links from their index, except for the cases when the content did not correspond with the one announced by the user placing the torrent file. In the prosecution's opinion, this would make The Pirate Bay more than a simple technical intermediary.

The defense argued that uploading a torrent does not imply that the copyrighted files are actually 'available', as the torrent has to also be seeded and that, on the other hand, torrent files are not linked exclusively on The Pirate Bay and can be found through other search engines, including Google.

Two of the defendents were heard on the fourth day, the technician Frederik Neij and the administrator Gottfrid Svartholm Warg who were both pretty much sticking to their initial position. The day did not bring very much change. Neij proved that it was possible to create a torrent file and host it somewhere else, like on TorrentSpy using the trackers opened by The Pirate Bay to distribute the files, in which case The Pirate Bay cannot know what is exchanged. In his opinion, the prosecusion had not succeeded in proving that the incriminated files had been actually downloaded on The Pirate Bay.

The lawyer of the movie industry tried to show that The Pirate Bay had an active role in the choice of the content presented by its users and asked Gottfrid Svartholm Warg whether the site had withdrawn content related to child pornography. The administrator replied that they had notified the police on such torrent files and they had retired them at the request of the police. "We can't do investigations of our own. And if the police say we should remove a torrent, we will," he said.

Peter Sunde was interrogated on Friday morning. The strategy of the prosecusion seemed to be clearer than during the first days being focused on trying to prove that The Pirate Bay had been created with the purpose of gaining money from "pirating". The prosecutor tried to show that The Pirate Bay was actually managed by a hierarchical organization with a commercial purpose. However no material evidence was brought to support this idea. When asked what the purpose of The Pirate Bay was Sunde answered: "It is to enable users to share their material with others." "Even though it is copyrighted?" questioned Danowsky. "That can sometimes be the sad consequences," Peter replied.

The defendant stated to the court that in his opinion the entire trial was a political one and that the reason for which the plaintiffs brought the case against The Pirate Bay was not the fight against illegal downloading of their works but a a fight to preserve the monopoly on the distribution means.

The trial started again on 24 February when the prosecutor also added to the charges that the site allowed its users to upload torrents that it further on stored. Magnus Mårtensson, a lawyer for the IFPI testified during the morning but the evidence brought by him consisted only of screenshots and the witness also admitted having difficulties in answering some technical questions.

Both him and policeman Magnus Nilsson of the Anti-Piracy Office who was the next witness for the prosecution were unable to bring forth any real evidence that the Pirate Bay trackers were actually used for the downloads investigated.

Mårtensson admited that he had no evidence of having any contact with The Pirate Bay's tracker during the downloading he was claiming to have made from the site. Nilsson was made to admit that the actual downloading of the pirated files happened outside of The Pirate Bay.

The trial is supposed to last until the 4 March 2009. We will present the conclusions of the trial in our next newsletter.

The Pirate Bay trial: 1st day under the sign of boredom (only in French, 16.02.2009)

Half of Pirate Bay case dropped in courtroom drama (17.02.2009)

The Pirate Bay cries victory after the dropping out of some charges ! (only in French, 17.02.2009)

The Pirate Bay (day 3): "We are winning on legal principles" (only in French, 18.02.2009)

Day 3 - The Pirate Bay's 'King Kong' Defense (18.02.2009)

The Pirate Bay (day 4): "Are you a coward, Fredrik Neij ?" (only in French, 19.02.2009)

Day 4 - Pirate Bay Defense Calls Foul Over Evidence (19.02.2009)

The Pirate Bay (day 5): Peter Sunde counter-attacks (only in French, 20.02.2009)

Pirate Bay Trial Day 5: Peter's "Political Trial"(20.02.2009)

Pirate Bay Trial Day 7: Screenshots for Evidence (24.02.2009)

EDRI-gram: Pirate Bay in legal battle with IFPI (11.02.2009)"

As usual EDRI-gram is packed with important stories ranging from Italian censorship plans to the EU Commission's disbanding of their group of data protection experts and the UK's ignoring of the Commissions complaints about Phorm and the latest on the French 3 strikes law. Recommended

Wednesday, February 25, 2009

Supreme Court sides with Rambus v FTC

The US Supreme Court has sided with Rambus in one branch the long running dispute about the company's patent on an industry standard.

Short version of the story - Rambus hid the fact that it was patenting a technology whilst lobbying to have it adopted as an industry standard by the Joint Electron Device Engineering Council. Once the standard was approved they set about suing their competitors for patent infringement. One of the primary defences was that the company acted anti-competitively. The FTC agreed and got involved in the case by taking an antitrust action against Rambus. By refusing to review the case after the Appeal Court had sided with Rambus the Supreme Court are effectively saying their was no breach of antitrust regulations.

The ever reliable ScotusBlog characterises the decision thus:
"Among the cases the Court declined to hear was an appeal by the Federal Trade Commission (not supported by the Solicitor General) testing whether a company’s use of deception to gain a monopoly is a form of harm outlawed by antitrust law. The issue arose in a case involving alleged efforts to gain a monopoly by influencing the setting of a standard for memory components of computers and other electronic devices. The Court made no comment in denying review in FTC v. Rambus Inc. (08-694)."

Tuesday, February 24, 2009

Eircom deal [was] may have been 3 strikes plus...

The Register is reporting that Eircom's recent out of court settlement with the music labels included a commitment by the company to block access to any websites classified as illegal file sharing sites by the the Irish Recorded Music Association (IRMA - the trade body representing the big four music companies).

Update: Eircom has said that the company will not block any websites without a proper court order.

Monday, February 23, 2009

New Zealand delay implementation of 3 strikes law

The New Zealand government has reportedly delayed the implementation of the 3 strikes law that it passed last year. It was due to come into force at the end of this week (28 Feb.). Pity they didn't have their second thoughts before passing the law.

It would be really interesting to find out what the killer soundbite was that finally got through to the politicos in this instance. It could be useful in this part of the world.

Update: the former minister who pushed the law through parliament is apparently not impressed about it not getting implemented.

Quote of the day

"You assist an evil system most effectively by obeying its orders and decrees. An evil system never deserves such allegiance. Allegiance to it means partaking of the evil. A good person will resist an evil system with his or her whole soul." Mahatma Gandhi.

Medina report on copyright rejected by EU parliament

I'm playing catch up having been off the grid for a week but it looks like the EU parliament has rejected the Medina report on copyright nodded through by the JURI (legislative affairs) committee a few weeks ago.