Thursday, April 01, 2010

We need a Jefferson's Moose for the Digital Economy Bill

This is a nice example of the kind of remixing that the people pushing the digital economy bill would like to control:

I'm not sure that even seeing this would get the message through, Jefferson's-Moose-like, to the politicians.  Any suggestions on what would have an equivalent impact to seeing a 7-foot Moose in the hall gratefully received.

Wednesday, March 31, 2010

Open University Academics Open Letter on BBC DRM Proposals

A group of 50 Open University academics have sent an open letter to the Ofcom on the BBC's HD DRM proposals. I include the text in full below.
An Open Letter to Ofcom on the BBC HD DRM proposal
As a group of academics who teach and conduct research at the Open University, which since its inception has used broadcast and multimedia technologies  in education, we are writing to express our objections to the proposal to allow the BBC to add a Digital Rights Management (DRM) flag to its high definition (HD) output.
We believe that the proposal is misleading in claiming that it will not involve signal encryption.  We further believe that the proposal has significant disadvantages for
  • licence payers
  • the disabled
  • UK industry
  • innovation
  • education
BBC Charter Obligations
Licensing and regulation of the radio frequency spectrum exists to ensure that a monopoly on a certain part of the spectrum serves the public good. Article 3 of the BBC Charter states that the "BBC exists to serve the public interest."  Article 4 further explains
The Public Purposes of the BBC are as follows—
(a) sustaining citizenship and civil society;
(b) promoting education and learning;
(c) stimulating creativity and cultural excellence;
(d) representing the UK, its nations, regions and communities;

(e) bringing the UK to the world and the world to the UK;
(f) in promoting its other purposes, helping to deliver to the public the benefit of emerging communications technologies and services and, in addition, taking a leading role in the switchover to digital television.
No part of that public purpose encompasses enabling the BBC to encrypt free to air audio and video broadcast signals and no matter what terminology is used to make it appear that the DRM flag is not encryption, the plain technical truth is that it is.
The BBC scheme involves not the scrambling of the audio and video signals themselves but of the accompanying digital instructions for decoding these signals.  The 'free' broadcast signal will now merely come locked behind a DRM shield that people will need specially licensed equipment to view. The BBC proposal would undermine its public service obligations under the Charter, and we find it difficult to reconcile Ofcom's repeated declarations that a broadcast flag DRM regime would be inappropriate for the BBC with the current consultation shaped around the notion that  the proposed DRM technology is a good idea.
Disadvantages for Disabled
To make matters worse, that specific data the BBC proposes to scramble includes subtitles and data used in specialist TV equipment which is needed by those who are visually- and hearing-impaired to enjoy broadcasts.  So an audience that is already disadvantaged in terms of access to 'free to air' broadcasting would become further disadvantaged, as the barriers to the market supplying specially adapted devices with assistive features become ever higher.
Does Not Work Anyway and Undermines Backwards Compatibility
More than a decade's worth of painful experience for industry and the consumer has demonstrated that DRM digital locks do not actually prevent copying and come with significant costs.  After creating ranges of incompatible devices that consumers could not use interchangeably, most of the major online music suppliers have removed DRM from their stores. Every DRM regime thus far invented has been broken within days and the details placed in the public domain. The people inconvenienced by DRM are frequently those who legitimately purchase the product and find, due to software updates or online music retailers ceasing to trade, that they can no longer access their legitimately-purchased electronic music and video collections, or that they are difficult or awkward to use.
The Communications Act 2003, Part 1, section 3, outlines the General duties of OFCOM:
(1) It shall be the principal duty of OFCOM, in carrying out their functions—
     (a) to further the interests of citizens in relation to communications matters; and
     (b) to further the interests of consumers in relevant markets, where appropriate by promoting competition.
The backward compatibility problems created by DRM, e.g. where older equipment will no longer work or communicate with new devices, can form no part of Ofcom's remit to further the interests of citizens in relation to communications matters or to facilitate a consumer friendly evolution of the consumer electronics market. The DRM proposed could result in those who have already invested in a modern HD TV and PVR being required to purchase a new approved decoder to view programmes and a new approved PVR  in order to record programmes. Even then it seems that the new PVR will only be permitted to record programmes received through its own "integrated" receiver, not from the signal receiver in the TV.
In the case of the BBC DRM proposal, ordinary TV license fee payers will be prevented from accessing BBC HD broadcasts unless they use equipment approved by an offshore licensing consortium and agree to a draconian set of restrictions on their use of that equipment. This includes a ban on adjusting it in such a way as to improve its operation, even to facilitate backward compatibility with older equipment.
An Empty Threat
The BBC implies that without some form of  DRM scheme (which the BBC itself admits are not difficult to break), HD producers will refuse to use the BBC as an outlet for their offerings.  This is a demonstrably empty threat for at least two reasons:
  1. The BBC is too big a player in too important a market for independent commercial producers to refuse to do business with it.
  2. The identical threat was made in the US in 2003 by TV and movie studios through the Federal Communications Commission (US equivalent to Ofcom). The proposal was thrown out by the D.C. Circuit Court of Appeals in 2005. Five years on, despite similar threats to migrate high definition programmes away from TV if they did not get their broadcast flag, the entertainment companies and sports franchises in the US continue to broadcast their productions DRM-free.  A rather compelling fiduciary obligation to maximize return to shareholders meant they had to continue production and broadcasting even without DRM.
The BBC management in its recent "BBC Strategy Review" document, under the heading "Setting New Boundaries" on page 5, proposes:
"Reducing spending on imported programmes and films by 20%, capping it thereafter at no more than 2.5p in every licence fee pound"
Even if we accepted that DRM prevented copying - which we categorically do not - acceding to the demands of the BBC's commercial partners to encrypt the HD digital signal in order to "protect" their productions, when purchases from the third party rights holders in question will not amount to more than 2.5% of BBC non-commercial revenues. Accordingly we regard the measures under consideration to be seriously disproportionate.
Barriers to Education
As educators at an institution committed to open access to and widening participation in higher education, we are particularly disappointed. The Open University has spent 40 years breaking down barriers to university study in partnership with the BBC. We now see a respected national institution proposing a restrictive scheme, which will only make it more difficult for us to engage the wider public in high quality supported open learning.
Anti-Competitive/Conflict of Interest
Finally, we fail to see how the notion of the BBC and its commercial production partners, through an offshore corporate consortium, the Digital Transmission Licensing Agreement (DTLA), dictating, restricting and controlling the design, development and operation of broadcast signal receiving equipment, can be reconciled with the public service remit of the BBC. Restricting who can manufacture the equipment required to decode a public broadcast TV signal is anti-competitive (and therefore probably contrary to European law) and can only serve to push up the cost to the consumer and stifle creativity and innovation.
In summary, the BBC HD DRM proposal is contrary to the public interest, will not prevent copyright infringement, will incur significant costs for consumers and industry, lacks proportionality and will not provide any noticeable additional incentive for the production of HD materials.  We therefore believe it is Ofcom's duty to categorically reject this proposal and we wish, in addition, to fully endorse the Open Rights Group's detailed position on the matter available at:
Disclaimer: The views expressed  are those of the undersigned and do not necessarily reflect those of the Open University.
The full list of signatories should hopefully be available from Ofcom in due course.  In the meantime the list and the letter is available online.

Tuesday, March 30, 2010

Myriad gene patents held to be invalid in US court

This is a very big deal in patent, pharmaceutical and medical research circles and I hope James Love and KEI won't mind me quoting them in full on the decision in in Association for Molecular Pathology, et al. v. USPTO, et al.
In today's court ruling in Association for Molecular Pathology, et al. v. USPTO, et al., Judge Robert Sweet rejected claims by Myriad that invaliding the patents would be an unconstitutional taking, or violate the WTO TRIPS Agreement. In discussing the TRIPS, Judge Sweet mentioned Article 8.1 and 27.3 of the TRIPS.
Finally, Myriad's suggestion that invalidating the patents-in-suit would constitute an unconstitutional taking in violation of the Fifth Amendment of the Constitution or a violation of the United States' obligations under the Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPS") is unpersuasive. Myriad's novel taking argument runs counter to a long history of invalidation of patent claims by the courts and is unsupported by legal precedent. Similarly, Articles 8.1 and 27.3 of TRIPS permit governments to incorporate public health concerns into their intellectual property law and to exclude from patentability diagnostic, therapeutic, or surgical methods as well as particular inventions on the grounds of public interest. As a result, invalidation of the patents-in-suit would constitution neither a constitutional violation nor a conflict with the Untied States' treaty obligations. Pages 106-107
These are the two sections of the TRIPS that Judge Sweet cites.
Article 8
Principles 1. Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement.
Article 27
Patentable Subject Matter 3. Members may also exclude from patentability:
(a) diagnostic, therapeutic and surgical methods for the treatment of humans or animals;
(b) plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. The provisions of this subparagraph shall be reviewed four years after the date of entry into force of the WTO Agreement.
The Public Patent Foundation played a very important role in this litigation. Their press release is here.
The ACLU page on the decision is here.
The Myriad release says: Federal District Court Rules Isolated DNA Claims are Not Patentable, Myriad to Appeal Decision to the Federal Circuit Court of Appeals.
The New York Times reports here.
John Conley and Dan Vorhaus has this report in the Genomics Law Report: Pigs Fly: Federal Court Invalidates Myriad’s Patent Claims
Duke's Institute for Genome Sciences & Policy issued this statement by Robert Cook-Deegan:
“This is the first time a judge has ruled on gene patents in a conflict about diagnosis,” says Robert Cook-Deegan, the director of the Center for Genome Ethics, Law & Policy at Duke's Institute for Genome Sciences and Policy. “This completely changes the game, at least for now. Judge Sweet reached a decision the opposite of prior cases. One big difference is that this case is about diagnostics, getting information about DNA in a person’s cells, and not about using DNA to make drugs.”
In 2006 Anja von der Ropp of WIPO and Tony Taubman, now head of intellectual property for the WTO wrote the: Bioethics and Patent Law: The Case of Myriad, for the WIPO Magazine.
Also of interest is the related story of the Federal Circuit court busting the NF-kB gene patent: Federal Circuit Invalidates Harvard and MIT's Patent For NF-kB Gene Expression"

Monday, March 29, 2010

Newzbin escapes injunction in the UK High Court

The High Court in the UK has decided against granting an injunction applied for by Hollywood Studios against a Usenet group, Newzbin. Whilst not being convinced the Newzbin operators were entirely innocent in relation to inducing copyright infringement the Mr Justice Kitchin decided that the injunction sought was too broad.
"133. The claimants contend that the defendant is a relevant service provider and that it has actual knowledge that its premium members are infringing the claimants' copyrights and, indeed, the copyrights of other rights holders in the content made available on Newzbin . Accordingly they invite me to grant an injunction to restrain the defendant from including in its indices or databases entries identifying any material posted to or distributed through any Usenet group in infringement of copyright.

134. The defendant accepts that it is a relevant service provider but disputes that it has actual knowledge of any person using its service to infringe because it has never been served with a notice of the kind referred to in section 97A(2).

135. I do not accept that service of such a notice is a precondition of a finding that a service provider has actual knowledge of another person using its service to infringe copyright. Such is evident from the section which says that this is simply one of the matters to which the court must have regard. Nevertheless, I do not believe it would be appropriate to grant an injunction of the breadth sought by the claimants for a number of reasons. First, it is apparent from the terms of Directive 2001/29/EC that it is contemplating the grant of an injunction upon the application of rights holders, yet the claimants are seeking an injunction to restrain activities in relation to all binary and all text materials in respect of which they own no rights and about which I have heard little or no evidence. Second, I do not accept that the defendant has actual knowledge of other persons using its service to infringe all such rights. Therefore I am not persuaded I have the jurisdiction to grant such an injunction in any event. Third, the rights of all other rights holders are wholly undefined and consequently the scope of the injunction would be very uncertain. In my judgment the scope of any injunction under section 97A(2) should extend no further than that to which I have already concluded the claimants are entitled, namely an injunction to restrain the defendant from infringing the claimants' copyrights in relation to their repertoire of films."

Under the provisions of the Digital Economy Bill currently likely to go through parliament in the wash up of legislation before the general election, (presumably with the BPI's approval) it is a fairly  good bet that Newzbin would have been Internet history without reference to a judge.  Given the judge is very clear he doesn't buy the operators' complete innocence it wouldn't be a sensible business decision for an ISP to attempt to defend them in court.  Some might think that a good thing.  I don't know enough about Newzbin to assess whether they induced infringement or engaged directly therein but under the digital economy bill as it stands we won't really get the chance to test the question in the courts, even when the accused is demonstably innocent.

Updated due to strange formatting problems, 31/3.