Jammie Thomas loses retrial

Jammie Thomas, the single mother who lost one of the few peer to peer copyright infringement cases to go to trial, has reportedly lost the re-trial too. The jury has apparently awarded nearly $2 million in damages against her, which given the jury award at the original trial was $222,000 will probably mean Ms Thomas is now regretting pushing for the retrial. That's $80,000 per song compared to the original $9,250 per song. It's a ridiculous award but it's one of those "sending a message" decisions and actually could have been as much as $150,000 per infringement under US copyright law.

Update: Ray Beckerman has some more details at Recording Industry vs. The People.

New Obama USPTO an open source fan

Obama's choice of David Kappos, an open source fan, as the new director of the US Patent and Trademark Office has gone down well with James Love.

Harvard study: File-Sharing and Copyright

A couple of economists at Harvard have published a working paper, File-Sharing and Copyright.

"1. Introduction

The advent of file-sharing technology has allowed consumers to copy music,
books, video games and other protected works on an unprecedented scale at minimal
cost. In this essay, we ask whether the new technology has undermined the incentives of
authors and entertainment companies to create, market and distribute new works. While
the empirical evidence of the effect of file sharing on sales is mixed, many studies
conclude that music piracy can perhaps explain as much as one fifth of the recent decline
in industry sales. A displacement of sales alone, however, is not sufficient to conclude
that authors have weaker incentives to create new works. File sharing also influences the
markets for concerts, electronics and communications infrastructure. For example, the
technology increased concert prices, enticing artists to tour more often and, ultimately,
raising their overall income.

Data on the supply of new works are consistent with our argument that file
sharing did not discourage authors and publishers.2 The publication of new books rose
by 66% over the 2002-2007 period. Since 2000, the annual release of new music albums
has more than doubled, and worldwide feature film production is up by more than 30% since 2003. At the same time, empirical research in file sharing documents that consumer
welfare increased substantially due to the new technology.

Over the past 200 years, most countries evolved their copyright regimes in one
direction only: lawmakers repeatedly strengthened the legal protections of authors and
publishers, raising prices for the general public and discouraging consumption.3 Seen
against this backdrop, file sharing is a unique experiment that considerably weakened
copyright protections. While file sharing disrupted some traditional business models in
the creative industries, foremost in music, in our reading of the evidence there is little to
suggest that the new technology has discouraged artistic production. Weaker copyright
protection, it seems, has benefited society.

In this essay, we discuss the currently available research that sheds light on the
effects of file sharing, particularly in music where its effects have been most pronounced.
We start by describing the new technology and how consumers are using it. Section 4
reviews the evidence that file sharing reduces the profitability of creating and selling new
works. We discuss the importance of complements to original works in Section 5 and
describe the artistic and corporate response to file sharing in section 6. The concluding
section offers policy implications."

It makes interesting reading for copyright geeks on all sides of the divide.

Update: The Register has a report on the Harvard essay, Economists say P2P file-sharing fuels art Thanks to Fearghas McKay via the FIPR alerts for the pointer.
And ars technica have picked it up too. Thanks to Magnus Therning via the ORG list for that one.

Update 2: And Michael Geist whose commentary is always worth a read.

Obama and intellectual property

James Boyle has been eloquently (as ever) assessing the Obama administration's approach to intellectual property.

"In the area of copyright law . . . well, the signs are mixed.

Traditionally, Democratic administrations take their copyright policy direct from Hollywood and the recording industry. Unfortunately, so do Republican administrations. The capture of regulators by the industry they regulate is nothing new, of course, but in intellectual property there is the added benefit that incumbents can frequently squelch competing technologies and business methods before they ever come into existence. Years of making policy this way have given us retrospectively extended copyright terms that are in excess of 100 years. (Perpetual copyright ”on the instalment plan” in Peter Jaszi’s words.) It has given us a one-sided and unbalanced view of the world, which registers with complete accuracy the real dangers that the content industry faces from any new technology, while ignoring the benefits those same technologies can provide – including to the content industry...

...the Obama administration’s opposition to a proposal on copyright exceptions for the visually impaired. About 95 per cent of books are not available for blind or partially sighted readers. Some countries have exceptions in their laws which, very sensibly, condition the grant of the copyright monopoly on a (very) few public interest limitations, such as the right to make non-commercial versions of works one has legally purchased in order to make them accessible to the visually impaired...The proposal would generalise and harmonise those exceptions. It is backed by a number of developing countries and opposed – quietly – by the US and most of the European Union. Hip-deep in a colossal market failure on a global scale, they say optimistically that the market will provide an acceptable solution, though there is overwhelming empirical evidence that it will not.

Why oppose this proposal? Scaremongering aside, there is no real threat to anyone’s business model here...This proposal represents the ideas that rights should have limits and that we should harmonise limitations and exceptions as well as rights themselves. It is that principle, the principle of balance, that must be resisted. Even if it puts one in the embarrassing position of...sacrificing one’s blind citizens to an industry agenda... this little piece of moral cowardice is not something many people are going to notice. But it leaves a nasty taste in the mouth, nonetheless."

EFF and PK drop ACTA lawsuit

The EFF and Public Knowledge are reluctantly dropping a lawsuit aimed at getting access to US government documents on the Anti-Counterfeiting Trade Agreement, ACTA.

"The Obama Administration's decision to support Bush-era concealment policies has forced the Electronic Frontier Foundation (EFF) and Public Knowledge (PK) to drop their lawsuit about the proposed Anti-Counterfeiting Trade Agreement (ACTA). EFF and PK had been seeking important documents about the secret intellectual property enforcement treaty that has broad implications for global privacy and innovation.

Federal judges have very little discretion to overrule Executive Branch decisions to classify information on "national security" grounds, and the Obama Administration has recently informed the court that it intends to defend the classification claims originally made by the Bush Administration.

"We're extremely disappointed that we have to end our lawsuit, but there is no point in continuing it if we're not going to obtain information before ACTA is finalized," said EFF International Policy Director Gwen Hinze. "There's a fundamental fairness issue at stake here. It's now clear that the negotiating texts and background documents for this trade agreement have been made available to representatives of major media copyright owners and pharmaceutical companies on the Industry Trade Advisory Committee on Intellectual Property. Yet private citizens -- who stand to be greatly affected by ACTA -- have had to rely on unofficial leaks for any substantive information about the treaty and have had no opportunity for meaningful input into the negotiation process. This can hardly be described as transparent or balanced policy-making."

"Even though we have reluctantly dropped this lawsuit, we will continue to press the U.S. Trade Representative and the Obama Administration on the ACTA issues," said Public Knowledge Deputy Legal Director Sherwin Siy. "The issues are too far-reaching and too important to allow this important agreement to be negotiated behind closed doors," he added.

Very little is known about ACTA, currently under negotiation between the U.S. and more than a dozen other countries, other than that it is not limited to anti-counterfeiting measures. Leaked documents indicate that it could establish far-reaching customs regulations governing searches over personal computers and iPods. Multi-national IP corporations have publicly requested mandatory filtering of Internet communications for potentially copyright-infringing material, as well as the adoption of "Three Strikes" policies requiring the termination of Internet access after repeat allegations of copyright infringement, like the legislation recently invalidated in France. Last year, more than 100 public interest organizations around the world called on ACTA country negotiators to make the draft text available for public comment."

Digital Britain report: £50,000 fines for IP offences

I still haven't had the chance to read Lord Carter's Digital Britain report but it is reportedly suggesting matching:

"online and physical IP infringement penalties, with a statutory maximum penalty of £50,000 [$82,000] for all IP offenses. The online penalty is currently £5,000 [$8,200]."

High Court refuses to protect anonymity of police blogger

The author of the now deleted popular police blog, Night Jack, has been named by the Times following the conclusion by Mr Justice Eady, in the High Court today, that

"...it is not likely that the Claimant would succeed at trial in restraining The Times from publishing his identity as the author of the blog, whether on grounds of traditional breach of confidence or by way of reliance upon the more recently developed remedies in respect of "private information"."

The officer concerned, detective constable Richard Horton, has been issued with a written discplinary warning by the Lanchashire Constabulary on reportedly accepting "that parts of his public commentary have fallen short of the standards of professional behaviour we expect of our police officers."

Mr Horton's lawyer told the court that thousands of bloggers would be horrified if they thought they could be easily identified through a bit of legwork on the Net. The outcome of the case is another lesson that activity on the Web cannot be automatically assumed to be anonymous; but contrary to the impression given by the Times story, the decision does not mean that the identity of every blogger will be fair game for journalists or anyone else intent on exposing them. Mr Justice Eady's conclusions are, as ever, very carefully crafted to apply to the circumstances of this particular case - a police detective blogging critically about his police work who wanted to remain anonymous in respect of those writings.

"

7. It is well known that the court nowadays adopts a two stage approach, when addressing claims based upon the publication of allegedly private information in contravention of Article 8 of the European Convention on Human Rights and Fundamental Freedoms. One must ask, first, whether the claimant had a reasonable expectation of privacy in relation to the particular information in question and, if so, then move to the second stage of enquiring whether there is some countervailing public interest such as to justify overriding that prima facie right. Whereas Mr Tomlinson focused most of his attention upon the second stage, and rather took it for granted that the stage one test had been passed, Mr White QC made it clear on behalf of The Times that it was most certainly not accepted that this Claimant had a reasonable expectation of maintaining his anonymity.
8. The test is an objective one (both for privacy and breach of confidence) and the importance of that has recently been underlined by the Court of Appeal in Napier v Pressdram Ltd [2009] EWCA Civ 443 at [42], where Toulson LJ commented:

" … For a duty of confidentiality to be owed (other than under a contract or statute), the information in question must be of a nature and obtained in circumstances such that any reasonable person in the position of the recipient ought to recognise that it should be treated as confidential. As Cross J observed in Printers and Finishers Limited v Holloway [1965] RPC 239, 256, the law would defeat its own object if it seeks to enforce in this field standards which would be rejected by the ordinary person. Freedom to report the truth is a precious thing both for the liberty of the individual (the libertarian principle) and for the sake of wider society (the democratic principle), and it would be unduly eroded if the law of confidentiality were to prevent a person from reporting facts which a reasonable person in his position would not perceive to be confidential."

9. Hitherto, in those cases which have come before the courts where the claimant relied successfully upon the recently developed cause of action, in the absence of any pre-existing relationship of confidence, the information in question has been of a strictly personal nature concerning, for example, sexual relationships, mental or physical health, financial affairs, or the claimant's family or domestic arrangements. I am not aware of a case in which, as here, there is a significant public element in the information sought to be restricted. I have in mind, of course, that what the Claimant seeks to withhold from scrutiny is the identity of the person communicating to the public through his blog. Those who wish to hold forth to the public by this means often take steps to disguise their authorship, but it is in my judgment a significantly further step to argue, if others are able to deduce their identity, that they should be restrained by law from revealing it."

The judge then says the claimant fails at stage one - i.e. has no reasonable expectation of privacy - "because blogging is essentially a public rather than a private activity." Then although the detective has essentially lost the case at that stage, Eady still goes on to discuss the issue of whether it would theoretically be in the public interest to maintain his anonymity - paragraphs 12 to 30 - and suggests that it would not. The concludes:

"I conclude that he fails at stage one, in the sense that the information does not have about it the necessary "quality of confidence", as contemplated by Megarry V.-C. in Coco v A N Clark (Engineers) Ltd [1969] RPC 41; nor does it qualify as information in respect of which the Claimant has a reasonable expectation of privacy – essentially because blogging is a public activity. Furthermore, even if I were wrong about this, I consider that any such right of privacy on the Claimant's part would be likely to be outweighed at trial by a countervailing public interest in revealing that a particular police officer has been making these communications."

So as far as headlines are concerned I would go for "Freedom of expression trumps privacy in NightJack case" rather than Ruling on NightJack author Richard Horton kills blogger anonymity, though I accept that neither exactly trips off the tongue.

Update: Emily Bell at the Guardian considers the decision was bad for bloggers and democracy.

Joint Statement: Anti-Counterfeiting Trade Agreement

The countries negotiating ACTA have issued a joint statement.

"1. Australia, Canada, the European Union and its Member States, Japan, the Republic of Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the United States today announced that they are moving forward on the negotiation of an Anti-Counterfeiting Trade Agreement (ACTA) to step up the fight against global counterfeiting and piracy.

2. The participants in the ACTA negotiations will next meet in Morocco in July to continue their discussions with a view to reaching an agreement in 2010. Today’s announcement emphasizes the participants’ goal to combat global infringements of intellectual property rights(IPR), particularly in the context of counterfeiting and piracy, by increasing international cooperation, strengthening the framework of practices that contribute to effective enforcement, and strengthening relevant IPR enforcement measures themselves.

3. In addition, the ACTA negotiators reaffirmed the importance of information disclosure on the progress on ACTA to the public.

Background

4. Negotiations on the ACTA began in June 2008. The objective of the ACTA negotiations is to negotiate a new, state-of-the art agreement to combat counterfeiting and piracy. The Parties negotiating the agreement include Australia, Canada, the European Union and its 27 Member States, Japan, Mexico, Morocco, New Zealand, Singapore, South Korea, Switzerland and the United States. When it is finalized, the ACTA is intended to assist in the efforts of governments around the world to more effectively combat the proliferation of counterfeit and pirated goods, which undermines legitimate trade and the sustainable development of the world economy, and in some cases contributes to organized crime and exposes consumers to dangerous fake products."

Online privacy - it's complicated

Lilian Edwards has been analysing the state of online privacy in Sydney and Hong Kong with a degree of pessimism.

"Before HK, Pangloss was in lovely Sydney enjoying the hospitality of the Cyberspace Law and Policy Centre at University of New South Wales at SoGikii, aka the conference on the beach at Coogee :-))

SoGikII was bijoux but very interesting. Graham Greenleaf and Ian Brown swapped multi Continental ideas, helped by the audience, on how to reform personal data protection laws, calling on current moves to reform of the EU DPD, the evolving APEC privacy principles, Graham's work on comparative Asian privacy law and the far famed (everyone in Oz spoke about it in hushed tones) 2000 pages AU$2 m ALRC report on privacy.

The general emerging ideas seem to be:

• one size does NOT fit all : more prior privacy impact assessment and privacy engineered in ("privacy by design") needed for large data bases and other such projects, especially in public sector;
  
• in the EU the effect of Lindqvist needs rolled back for small data processors such as the millions of user generated content providers. A stronger domestic purposes exemption might meet these needs, linked to stronger obligations on platforms to take down on complaint (though Pangloss wonders about the free speech impact of this?) and industry codes on privacy protective default settings on social networks.
  
• for all data processors, more emphasis on data minimisation - collecting less data ab initio, by code means and by reliance on principles such as the Australian rule that systems must be designed to allow an anonymity option if practical (eg London't Oyster system is designed for identifying users; Singapore's Octopus is not). This is all the more important as security of large multiple access dbs is increasingly unreliable.
  
• more concern for the merging human rights protection for privacy not just under DPD rules - eg the recent UK ECHR defeat in the DNA database case.
• DP export laws must be maintained despite business opposition
  

On remedies and enforcement some ideas were

• better remedies for users including class action rights for consumer organisations
• replace boilerplate registration of purposes with online subject access rights and tracking of use of data (PG sez: could semantic web data help here??)
• penalties for abusive use of "DP" by companies to restrict access to info by consumers
  
• security breach notification was controversial with some complaining in US it had done little or nothing to stop malware breaches."

I'm sorry I missed it and it reminds me I must, if I can find the time, suggest a paper for GikII 2009.

Did Virgin blink in the Net piracy wars

Rory Celland-Jones is asking if Virgin has blinked in the Net piracy wars.

"today, there's a sudden outbreak of peace between two of the parties - Universal Music and Virgin Media. The ISP has unveiled a deal where its customers will get unlimited access to download as much music as they want from the Universal catalogue, free of copyright protection, for a monthly fee.
When I was called about this by a PR person, my first reaction was that this was interesting, but far from ground-breaking. After all, there are other "all you can eat" music subscription services.
Then I read further down the press release and found what Virgin was offering in return - action against persistent file-sharers. Here's the key paragraph:

"This will involve implementing a range of different strategies to educate file sharers about online piracy and to raise awareness of legal alternatives. They include, as a last resort for persistent offenders, a temporary suspension of internet access. No customers will be permanently disconnected and the process will not depend on network monitoring or interception of customer traffic by Virgin Media."

That sounds like the "technical measures" that the creative industries want included in the Digital Britain report, as a backup to the despatch of warning letters. But by promising "a temporary suspension of internet access" for persistent offenders, Virgin appears to have gone further than any other ISP in acceding to the demands of the music industry."

If Virgin are not going to be doing the legwork on identifying file sharers then presumably Universal or agents employed by them will and then asking Virgin to suspend their Net access privileges. Might I again refer you to Lilian Edwards who has pointed out in great detail why this kind of approach to tackling copyright infringement on the Net is inappropriate from all kinds of legal perspectives. As indeed has the European Court of Justice in the Promusicae case and the French Constitutional Council when it struck down the HADOPI 3 strikes law last week.

Of course Virgin and Universal will point out that they are two commercial companies entitled to engage in mutually beneficial contractual arrangements which their customers are obliged to abide by if they wish to use their products or services. Go elsewhere Mr/Ms/Master filesharer if you're unhappy with your suspension.

Well, an acquaintance switched from Virgin to TalkTalk recently and then rapidly switched back because of the unreliable TalkTalk broadband connection (though their phone service was basically fine). So I'd suggest that that opportunity to switch providers is not necessarily, in practice, as realistic or simple an option as it might superfically appear. Virgin is alone in my home town in running (hybrid fibre coaxial) cable to homes afaik and a reliable if sometimes slow cable beats a flaky ISDN down the phone line every time. (Virgin was getting very slow (< 0.4M) which is why my acquaintance switched to TalkTalk but now they've switched back they're getting 8 to 9M standard on a billed 10M service).

Q&A on Secure Flight

The TSA blog has an interesting Q&A on Secure Flight.