Saturday, January 16, 2010

Ellis of Oink found not guilty

Interesting jury decision in the Oink case. Alan Ellis who ran the site has been found not guilty of fraud.
"As the case centered on an accusation of fraud, and prosecutors also had to prove Ellis made a profit and prosecutors moved to show the amount of money made by Ellis by operating the venture. It appeared from evidence given that there wasn't a subscription fee as such for using Oink, but users were encouraged to make donations, and it's alleged that a donation was compulsory whenever someone wanted to invite a friend to join the community.

Prosecutors said Ellis had amassed $300,000 in donations in his PayPal account by the time site was shut down and was receiving about $18,000 each month in ‘donations’ – and that he had £20,000 in his bank accounts. Ellis insisted that the monies were to pay server costs – and possibly buy a new server - and that he, unlike the Oink’s actual users, wasn’t personally guilty of infringement, because he didn't personally host or share any infringing content. By way of an aside, in the US in MGM v Grokster a charge of what was in effect 'authorising infringement' was successfully brought and in Sweden the four men behind The Pirate Bay were found guilty of copyright infringement...

Well, we can report the verdict - and in this case Mr Elllis has been found NOT GUILTY. He left court without speaking to reporters."

Ireland plans for DNA database advancing

Thanks to TJ McIntyre for alerting me via EDRI-gram to the latest Irish government plans to establish a DNA database.  Innocent people's DNA details are to be held for 3 years.
"The Irish Government has announced that it will publish legislation this week to set up a national DNA database. The Bill follows a 2005 Report of the Law Reform Commission on Establishment of a DNA Database but was delayed by the European Court of Human Rights action in S and Marper vs. the United Kingdom and has since been revised in light of that case.
The legislation proposes to allow Gardaí (Police) to forcibly take samples (such as hair, saliva, nail clippings or blood) from those suspected of committing a criminal offence carrying a possible sentence of five years imprisonment or more. Samples will be stored indefinitely where suspects are convicted; where persons are acquitted or released without charge they will still be retained for a three year period. 4.1 million euros has been allocated for the start-up costs associated with the database in 2010.
In 2007, the Irish Human Rights Commission was critical of a previous draft of the legislation. Until the full Bill is published it is unclear to what extent it will address these concerns.
In a separate development, it has emerged that a Dublin children's hospital has been holding DNA records of almost every person born in Ireland since 1984 without consent. The Temple Street Children's Hospital has acted as a national centre for "heel prick tests" which involve the taking of a blood sample from each newborn child and using that sample to screen for disease. However, the hospital does not destroy those samples when screening is complete but instead retains those samples indefinitely, linked to the individual. There are approximately 1.54 million samples held on this database, which would include the overwhelming majority of Irish people aged 25 or younger. The hospital is currently under investigation by the Data Protection Commissioner who may order the destruction of these samples.
Law Reform Commission, Report on the Establishment of a DNA Database (11.2005)
Irish Human Rights Commission, Safeguards in DNA Database Scheme of Bill 'Inadequate' (8.08.2007)
Connolly, Suspects forced to give DNA samples under new legislation (20.12.2009)
Connolly, New DNA Bill faces opposition (20.12.2009)
Dáil debates (10.12.2009)
Tighe, Hospital keeps secret DNA file (27.12.2009)
Tighe, Records stolen from hospital that held secret DNA database (10.01.2010)
(Contribution by TJ McIntyre - EDRi-member Digital Rights Ireland)"

Thursday, January 14, 2010

Commissioner Reding warning re. strip search machines

The Washington Post reports that Commissioner Reding is asking for some restraint on the out of control idea to deploy strip search machines at all airports.
"The European Union should not rush into introducing full-body scanners at airports but give consideration to privacy and health questions, the EU's justice commissioner-designate said on Tuesday...
"We need to look at less intrusive means; Human beings have dignity and every measure has to be clarified first. Does it respect human dignity, does it respect privacy and does it respect health?...
We have to have a very clear line on this. We must never be driven by fear but by our values," Reding told parliamentarians.  "
Finally some sense.

Wednesday, January 13, 2010

Google book settlement and the future of books

Professor Pamela Samuelson's forthcoming Minnesota Law Review article on the Google books settlement is now available via SSRN. Abstract:
"The Google Book Search (GBS) initiative once promised to test the bounds of fair use, as the company started scanning millions of in-copyright books from the collections of major research libraries. The initial goal of this scanning was to make indexes of the books’ contents and to provide short snippets of book contents in response to pertinent search queries. The Authors Guild and five trade publishers sued Google in the fall of 2005 charging that this scanning activity was copyright infringement. Google defended by claiming fair use. Rather than litigating this important issue, however, the parties devised a radical plan to restructure the market for digital books, which was announced on October 28, 2008, by means of a class action settlement of the lawsuits. Approval of this settlement would give Google—and Google alone—a license to commercialize all out-of-print books and to make up to 20 per cent of their contents available in response to search queries (unless rights holders expressly forbade this)."

This article discusses the glowingly optimistic predictions about the future of books in cyberspace promulgated by proponents of the GBS settlement and contrasts them with six categories of serious reservations that have emerged about the settlement. These more pessimistic views of GBS are reflected in the hundreds objections and numerous amicus curiae briefs filed with the court responsible for determining whether to approve the settlement. GBS poses risks for publishers, academic authors and libraries, professional writers, and readers as well as for competition and innovation in several markets and for the cultural ecology of knowledge. Serious concerns have also been expressed about the GBS settlement as an abuse of the class action process because it usurps legislative prerogatives. The article considers what might happen to the future of books in cyberspace if the GBS deal is not approved and recommends that regardless of whether the GBS settlement is approved, a consortium of research libraries ought to develop a digital database of books from their collections that would enhance access to books without posing the many risks to the public interest that the GBS deal has created"
"Google has made two bold moves with GBS. The first was to undertake the scanning of millions of books in order to index their contents, make snippets available to potential readers, and make nondisplay uses to refine its search technologies. The second was to settle the lawsuit brought against it charging the firm with copyright infringement so that Google could commercialize most of the books it had scanned. At first blush, this seems like a win-win-win, that is, a win for Google which would now be able to develop revenue models from which to recoup its investment in GBS, a win for authors and publishers who would enjoy a substantial share of the revenue stream generated from GBS books, and a win for the public which would have increased free access to books, as well as opportunities to have even greater access through subscriptions and purchases.
The second bold move has, however, proven to be far more controversial than the first. Even those who follow developments in the publishing industry closely have expressed reservations about it:
[W]as it ever reasonable to think that such a revolutionary, unprecedented pact, negotiated in secret over three years by people with loose claims of representation, concerning a wide range of stakeholders, both foreign and domestic, involving murky issues of copyright and the rapidly unfolding digital future, could be pushed through as a class action settlement within a period of months, in the teeth of a historic media industry transition?291
This Article has shown that although there are some reasons to be optimistic about the future of books in cyberspace if the GBS settlement is approved, there are even more reasons to be worried about the settlement and its consequences for competition and innovation down the line, as well as for sustained public access to knowledge, and to doubt that the bright promise proclaimed by GBS proponents is likely to be achieved.
The future of public access to the cultural heritage of humankind embodied in books is too important to leave in the hands of one company and one registry that will have a de facto monopoly over a huge corpus of digital books and rights in them.
Google has yet to accept that its creation of this substantial public good brings with it public trust responsibilities that go well beyond its corporate slogan about not being evil."
 Highly recommended. In fact if you want to get a comprehensive handle on the Google Book settlement, everything written by Prof. Samuelson on the subject is recommended. Here, here, here and here for example.

Judge rules movie industry not a cartel

There was another interesting development in the RealNetworks case against the movie industry last Friday when Judge Patel ruled that the industry was not a cartel.
"For years, RealNetworks has wanted to produce and sell a product called RealDVD that would enable the legal owners of DVD movies to copy their content onto a hard disk drive, in order that the original discs may stay protected like archival copies. Movie studios responded in September 2008 by suing Real, alleging that its technology intentionally circumvented their copy control system -- a circumvention that violated the US Digital Millennium Copyright Act. That led to an injunction barring any sale of RealDVD, which is still in force today.
Real then responded with a countersuit, blasting the movie studios with an allegation that they were leveraging the DMCA as a platform on which to build a kind of content cartel...
But Judge Marilyn Hall Patel ruled Friday that just because Real believed there was no need to purchase a license, did not prevent it from negotiating to purchase a license. Thus the movie studios could not have collectively prevented Real from making a copying mechanism possible, since the alternative of negotiation was there and has always been there."
The judge said:
"Any assertion by Real that the Studios' refusal to license the copying of DVDs caused an antitrust injury apart from the delay resulting from the injunctive relief is contradicted by Real's assertions that it believed no license was necessary."

Tuesday, January 12, 2010

ECHR: UK terror stop & search illegal

The European Court of Human Rights, in the case of Gillan and Quinton v. The United Kingdom (Application no. 4158/05) , has declared the blanket police stop and search powers, granted under the UK Terrorism Act 2000, to be in breach of article 8 of the European Convention on Human Rights (the right to respect for private and family life). Note as often with the ECHR database, the link may be transient but a search for 'Gillan' in the HUDOC search engine will bring up the decision.
"57.  The Court observes that although the length of time during which each applicant was stopped and search did not in either case exceed 30 minutes, during this period the applicants were entirely deprived of any freedom of movement. They were obliged to remain where they were and submit to the search and if they had refused they would have been liable to arrest, detention at a police station and criminal charges. This element of coercion is indicative of a deprivation of liberty within the meaning of Article 5 § 1 (see, for example, Foka v. Turkey, no. 28940/09, §§ 74-79, 24 June 2008). In the event, however, the Court is not required finally to determine this question in the light of its findings below in connection with Article 8 of the Convention...
65.  Each of the applicants was stopped by a police officer and obliged to submit to a search under section 44 of the 2000 Act... the Court considers that these searches constituted interferences with their right to respect for private life under Article 8. Such an interference is justified by the terms of paragraph 2 of Article 8 only if it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and is “necessary in a democratic society” in order to achieve the aim or aims (see, for example, Liberty and Others v. the United Kingdom, no. 58243/00, § 58, ECHR 2008-...)...
70.  No prior judicial authorisation was required for the availability of the power and the possibility of bringing proceedings in the County Court to determine whether the power had been properly and lawfully used was a wholly inadequate safeguard against misuse and arbitrariness. The ex post facto review of the exercise of the power by the County Court in any individual's case did not rectify the lack of legal certainty associated with the power. The applicants' own cases illustrated this point: once the House of Lords had rejected their complaints under the Convention, it was open to the County Court only to determine whether the officers were actually looking for terrorist articles and whether the applicants were obviously not terrorist suspects, a question to which a positive answer was virtually impossible. The removal of the “reasonable suspicion” requirement, or any other objective basis for the search, rendered the citizen extremely vulnerable to an arbitrary exercise of power, restrained only by the police officer's honesty to divulge what type of incriminating article he was looking for on the occasion in question. The lack of any practical and effective safeguards was compounded by the apparent breadth of the definition of “articles of a kind which could be used in connection with terrorism”. There was thus a real risk that the powers might be misused so as to regulate protest or to maintain public order, rather than to counter terrorism. This clearly had far-reaching consequences for civil liberties in the United Kingdom, particularly when, at the material time, the authorisation covered the whole of the Metropolitan Police District; had been continuously renewed every month for almost six years; and when there was no requirement that the authorisation be necessary or suitable, but only “expedient”, for preventing terrorism...
76.  The Court recalls its well established case-law that the words “in accordance with the law” require the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention and inherent in the object and purpose of Article 8. The law must thus be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual - if need be with appropriate advice - to regulate his conduct (S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, §§ 95 and 96, ECHR 2008-...).
77.  For domestic law to meet these requirements it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercis...
80.  The Court notes at the outset that the senior police officer referred to in section 44(4) of the Act is empowered to authorise any constable in uniform to stop and search a pedestrian in any area specified by him within his jurisdiction if he “considers it expedient for the prevention of acts of terrorism”. However, “expedient” means no more than “advantageous” or “helpful”. There is no requirement at the authorisation stage that the stop and search power be considered “necessary” and therefore no requirement of any assessment of the proportionality of the measure. The authorisation is subject to confirmation by the Secretary of State within 48 hours. The Secretary of State may not alter the geographical coverage of an authorisation and although he or she can refuse confirmation or substitute an earlier time of expiry, it appears that in practice this has never been done. Although the exercise of the powers of authorisation and confirmation is subject to judicial review, the width of the statutory powers is such that applicants face formidable obstacles in showing that any authorisation and confirmation are ultra vires or an abuse of power...
83.  Of still further concern is the breadth of the discretion conferred on the individual police officer. The officer is obliged, in carrying out the search, to comply with the terms of the Code. However, the Code governs essentially the mode in which the stop and search is carried out, rather than providing any restriction on the officer's decision to stop and search. That decision is, as the House of Lords made clear, one based exclusively on the “hunch” or “professional intuition” of the officer concerned (see paragraph 23 above). Not only is it unnecessary for him to demonstrate the existence of any reasonable suspicion; he is not required even subjectively to suspect anything about the person stopped and searched. The sole proviso is that the search must be for the purpose of looking for articles which could be used in connection with terrorism, a very wide category which could cover many articles commonly carried by people in the streets.  Provided the person concerned is stopped for the purpose of searching for such articles, the police officer does not even have to have grounds for suspecting the presence of such articles. As noted by Lord Brown in the House of Lords, the stop and search power provided for by section 44 “radically ... departs from our traditional understanding of the limits of police power” (see paragraph 23 above)...
85.  In the Court's view, there is a clear risk of arbitrariness in the grant of such a broad discretion to the police officer...
86.  The Government argue that safeguards against abuse are provided by the right of an individual to challenge a stop and search by way of judicial review or an action in damages. But the limitations of both actions are clearly demonstrated by the present case. In particular, in the absence of any obligation on the part of the officer to show a reasonable suspicion, it is likely to be difficult if not impossible to prove that the power was improperly exercised.
87.  In conclusion, the Court considers that the powers of authorisation and confirmation as well as those of stop and search under sections 44 and 45 of the 2000 Act are neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. They are not, therefore, “in accordance with the law” and it follows that there has been a violation of Article 8 of the Convention."
The judgment is worth reading in full and constitutes another significant defeat to the UK government's surveillance state "solution" to the not insignificant problem of terrorism.

Update: Nice commentary from Hawtalk.
"In summary, the Home Office's human rights team is not very good because human rights are not its main function. The Home Office exists to support immigration, policing and national security – all the organisations that need powers to invade privacy  - it needs privacy protection like it needs a hole in the head.
It is therefore  not surprising that Home Office legislation provides for wide ranging powers to help "their agencies" and the bare minimum when drafting provisions that protect individuals from misuse of these powers."

Monday, January 11, 2010


A blast of common sensefrom Prof Paul Campos in the WSJ on governments' responses to terrorism.
"The world's greatest nation seems bent on subjecting itself to a similarly humiliating defeat, by playing a game that could be called Terrorball. The first two rules of Terrorball are:
(1) The game lasts as long as there are terrorists who want to harm Americans; and
(2) If terrorists should manage to kill or injure or seriously frighten any of us, they win...
As to the question of what the government should do rather than keep playing Terrorball, the answer is simple: stop treating Americans like idiots and cowards.
It might be unrealistic to expect the average citizen to have a nuanced grasp of statistically based risk analysis, but there is nothing nuanced about two basic facts:
(1) America is a country of 310 million people, in which thousands of horrible things happen every single day; and
(2) The chances that one of those horrible things will be that you're subjected to a terrorist attack can, for all practical purposes, be calculated as zero."