AMP v Persons Unknown: privacy injunction on stolen mobile images

There was a really interesting interim injunction granted in a privacy case, AMP v Person's Unknown [2011] EWHC 3454 (TCC), in the UK High Court yesterday.
AMP v Persons Unknown
A young woman (AMP) had her mobile phone stolen.  The phone contained sexually explicit images of the woman which subsequently appeared on a free online media hosting service, tagged with her name and Facebook profile. She found out about this via messages from strangers on Facebook and contacted the hosting service which removed the images. She was also threatened via Facebook by a 'Nils Henrik-Derimot' that if she did not add him as a Facebook 'friend' he would expose her identity and spread the images widely online.  She deleted these threats and blocked the sender.

The images were subsequently uploaded to a Swedish BitTorrent site tagged with AMP's name and consequently came top of the search results when that name was plugged into any of the major search engines. Her solicitors had some success in getting these links removed from the searches through DMCA takedown notices in the US.

AMP is now pursuing this case in a effort to "prevent the spread and indexing of the image files by preventing their storage and transmission" within the UK.

Andrew Murray, professor of law at the LSE, was consulted as an expert witness and he explained the nature of BitTorrent technology.  The Court's understanding of his testimony is laid out in paragraphs 9 to 18.  The Court accepts that torrent seeders can be identified via their IP addresses and therefore prevented (or ordered to cease) from transmission, storage and indexing of the images in question. The Court also accepts (paragraph 17) that

it is also possible to prevent internet search engines from indexing particular sites or files which contain specific words; in this case the descriptor file containing the Claimant’s name could be filtered out on that basis. He says that this would then prevent wide-scale access to the “.torrent” file and again because of a lack of seeders the distribution by the BitTorrent protocol would cease to occur.

Whereas this is a genuinely valiant effort at providing the Court with advice on how to frame an order to protect someone subject to blackmail and harassment, the practical problem is that it is easy to produce an alternatively labelled descriptor file which could evade the filters. It seems fairly clear that Prof Murray pointed this out to the judge as Mr Justice Ramsey, in his concluding order, attempts to address the issue by prohibiting the creation of derivative files.

The case was brought against "persons unknown" because until the torrent seeders could be identified, via their IP addresses through their ISPs, they could not be party to the proceedings; but delays involved tracking down these people could lead to an increased spread of the images causing further damage to AMP. However it was straightforward to define a class of defendant, "namely any person in possession or control of any part or parts of the relevant files containing the relevant digital photographic images".

The key issue in terms of the practicalities of any injunction, not explicitly referred to by the court but nicely articulated by Andrew Murray, was that AMP was an ordinary person, not a modern celebrity or person of interest to the tabloid media. So people sharing or torrenting the sexually explicit images are likely to know or be acquainted with AMP personally. Therefore there is a fair chance they will be resident in the UK and hence subject to the jurisdiction of the Court.  Any injunction with sufficiently severe sanctions related to its breach would have a respectable chance of succeeding in deterring people who know AMP from spreading the images around. It is a little depressing to note that that partial protection declines exponentially if ever AMP did attain some degree of celebrity, as long as the images remain in the possession of actors with nefarious intent or purposes.

In terms of the legalities, AMP claimed the protection of the Copyright Designs and Patents Act 1988, the Human Rights Act (article 8 privacy) 1998 and the Protection from Harassment Act 1997.  Mr Justice Ramsey focused exclusively on the latter two in his judgement.  He gives a very careful analysis (paragraphs 23 to 38) of the human rights issues and why AMP's right to privacy clearly, in this case, trumps the (Article 10 free speech) right of persons unknown to store, index and distribute AMP's photos. Likewise he concludes AMP has a case for protection from harassment:

"44. ... I consider that, on the current evidence, there has been conduct on at least two occasions; the conduct was targeted at the Claimant; it was calculated, in an objective sense, to cause alarm or distress; objectively judged it would be oppressive and unacceptable in the context in which it occurred and, in my judgment would cross the line and be conduct which amounts to harassment, alarm or distress.
45. There is therefore a good arguable case that the conduct of disseminating the digital photographic images amounts to harassment of the Claimant under the Protection from Harassment Act 1997 and that this is a case where it is appropriate to grant an injunction."

The judge also re-affirms an earlier order under civil procedure rule (CPR) 39.2(4) that AMP's anonymity be  maintained (paragraph 46) before concluding with a strong interim injunction.

"Conclusion
47. ... I consider that this is an appropriate case for the court to grant relief both in relation to a breach of the Claimant’s right to privacy and also a breach of the provisions of the Protection from Harassment Act 1997.
[...]
49. This is a case where the Claimant is entitled to an interim injunction to prevent the distribution of the digital photographic images, either by conventional downloading from a site or by downloading by the use of the BitTorrent Protocol.
50. I therefore grant an interim injunction in the following terms against persons unknown being those people in possession or control of any part or parts of the files listed in Schedule C to the order who are served with this order:
(1) shall immediately cease seeding any BitTorrent containing any part or parts of the files listed in Schedule C of this Order.
(2) must not upload or transmit to any other person any part or parts of the files listed in Schedule C of this Order.
(3) must not create any derivatives of any of the files listed in Schedule C of this Order.
(4) must not disclose the name of Claimant (or any other information which might lead to her identification) or the names of any of the files listed in Schedule C of this Order."

AMP's legal team will now need to identify and contact UK residents whose computers are involved in the further distribution of her images.  Anyone involved in such activity, whatever their motives might be, would be well advised to stop.  This was a civil action but breach of the injunction attracts criminal sanctions. See sections 3(6) and 3(9) of the Protection from Harassment Act.

For the moment AMP has had a clear win in the High Court. However, it follows years of expensive legal proceedings in the UK and US, the embarrassment and stress of having intimate photographs on public display and no indication that the original phone thief and/or blackmailer(/s) or possibly collective of actors of disreputable intent have been found. Though the police were notified of the phone being stolen there is no indication in the decision whether there was a subsequent criminal investigation either of the theft or of the blackmail.  I assume, since it was a civil case, there was no criminal harassment investigation or proceedings and the deletion by AMP of the Facebook blackmail threats may have made such an investigation difficult.

In a lot of ways this was an easy case for the judge to decide.  The rights of the ordinary woman, with no celebrity status, to privacy and protection from harassment, trump those of unknown persons spreading her private photos around the internet. The injunction may help to cut the distribution of the images by people resident in the UK, as AMP and her legal team hope, but it can't fully repair the damage of what's happened. It will be interesting to see if the 'not a celebrity' feature has a wider application in the future.

Council conclusions on the open internet and net neutrality in Europe

The Council of the European Union has published the Council conclusions on the open internet and net neutrality in Europe. Some highlights:

The Council adopted the following conclusions:

"THE COUNCIL OF THE EUROPEAN UNION

1. WELCOMES
The Commission Communication of 19 April 2011 on "The open internet and net neutrality in
Europe"...

3. RECOGNISES...

d) The importance of preserving the open character of the Internet and ensuring the
maintenance of a robust best efforts Internet for all while respecting fundamental rights
such as media pluralism, linguistic diversity, freedom of expression and information as
well as freedom to conduct a business;

e) The need to encourage investment in new network infrastructures by both the public and
private sector, without prejudice to the negotiations on the Multi-Annual Financial
Framework, and to allow innovative business models to serve the needs of the market.

4. NOTES
a) That, although ICT is fundamental to the running of EU economies across all sectors, the
establishment of a well-functioning competitive digital single market still poses challenges
that need to be addressed;

b) That the open character of the Internet fosters innovation by creating a level playing field
for all actors involved and significantly contributes to the fulfilment of the Digital Agenda
for Europe goals;

c) The existence of some concerns, in regards to

- Discriminatory forms of traffic management and treatment of data, in particular
throttling of data and blocking of content, applications and services;
- Price transparency and quality of service, in particular the discrepancy between
advertised and actual delivery speeds for an Internet connection;
- Network congestion, mainly as a result of growing data streams;
- Sustainability of business models of network operators and Internet service
providers, due to investments needed to adequately respond to the growing
Internet traffic;
- Personal data protection.

d) The positive steps that can be taken by industry, in consultation with other stakeholders
and in coordination with National Regulatory Authorities, to provide effective transparency
to end users, notably on the scope of their services and on issues such as traffic
management, connection speeds and any restriction placed on data delivery.

5. UNDERLINES
a) The need to preserve the open and neutral character of the Internet and consider net
neutrality as a policy objective, which is consistent and interrelated with a number of
policy objectives already identified in article 8 of Directive 2002/21/EC (Framework
Directive) and with the corresponding provisions included in the amended EU Regulatory
Framework for Electronic Communications Networks and Services, namely in aspects
such as the promotion of the ability of end users to access and distribute information or run
applications and services of their choice, the increased transparency in the characteristics
and conditions of the service providers and the powers conferred to National Regulatory
Authorities to impose minimum requirements on quality of service;...

e) The importance of the enforcement by National Regulatory Authorities of the provisions
under the EU Regulatory Framework for Electronic Communications Networks and
Services (inter alia article 20 of Directive 2002/21/EC -Framework Directive-, article 5 of
Directive 2002/19/EC -Access Directive-, articles 20, 21 and 22 of Directive 2002/22/EC -
Universal Service Directive-), including promoting the publication of transparent,
comparable, adequate and up-to-date information on applicable prices and tariffs as well as
quality of service;

f) The importance of ensuring efficient transparency, i.e. enabling consumers to make better
and informed choices, particularly through effective implementation of articles 20 and 21
of Directive 2002/22/EC (Universal Service Directive) and the promotion of innovative
technological solutions;

g) The importance of addressing the issues of discrimination and degradation of service that
may arise from certain traffic management practices (inter alia blocking, hindering and
restrictive connection and interconnection policies), particularly through effective
implementation of article 22 of Directive 2002/22/EC (Universal Service Directive);

h) The importance of promoting the ability of users to create, distribute and access online
content, applications and services of their choice, as required in Directive 2002/21/EC
(Framework Directive);

i) The importance of the application of the principle of technology neutrality, underlying the
objectives of the EU Regulatory Framework for Electronic Communications Networks and
Services;

6. WELCOMES...

c) The Commission’s commitment to issue a Code of existing EU Online Rights by 2012...

7. INVITES THE COMMISSION TO
a) Encourage its dialogue with Member States and stakeholders on net neutrality while
supporting Member States in ensuring the rapid development of broadband;

b) Monitor, jointly with BEREC, the issue of traffic management to allow for a smooth flow
of proportional, necessary and transparent traffic management practices that do not affect
net neutrality; ...

d) Continue studying, with the support of BEREC's investigations, any aspects of net
neutrality where significant and persistent problems are substantiated, including charges
and conditions that mobile operators impose on VoIP users as well as throttling of content,
applications and services;...

e) Further assess, jointly with BEREC, the discrepancy between advertised and actual
delivery speeds occurring in Member States, and report to the Council and to the European
Parliament on the situation thereof by 2012;

8. INVITES MEMBER STATES TO
a) Encourage the application of the principle of net neutrality and continue their dialogue with
the Commission and stakeholders on the openness of the Internet and net neutrality, taking
into account ongoing analyses;
b) Ensure the open and neutral character of the Internet as their policy objective.

9. INVITES STAKEHOLDERS TO
a) Continue the dialogue with Member States, National Regulatory Authorities, BEREC and
the Commission to further the benefits of an open and innovative Internet;

b) Develop behaviours and economic choices that support an open Internet platform, thus
preventing the exclusion of small players and innovative models, and enabling access to, or
the transmission of, online content, applications and services;

c) Seek wide consensus on the aspects of net neutrality through balanced discussions between
all participants in the knowledge economy and the Internet and electronic communications
sector, civil society and users' organisations."

Just to sum up, they

• welcome an open & neutral net in Europe
• recognise the importance of net neutrality but accept the maintenance of a robust best efforts Internet for all
• understand the need for network infrastructure development
• understand openness facilitates innovation
• have concerns about discriminatory traffic management, throttling and blocking; price transparency and quality of service; discrepancy between advertised and actual delivery speeds; network congestion; personal data protection. 
• underline the need to preserve the open and neutral character of the Internet and for National Regulatory Authorities to address discriminatory anti-neutrality behaviour on the part of network operators
• emphasise the importance of the ability of users to create, distribute and access online
  content, applications and services of their choice
• welcome the Commission’s commitment to issue a Code of existing EU Online Rights by 2012
• would like member states to sign up to net neutrality as a policy principle or objective
• encourage public and civil society involvement in policy development

That's a round to the net neutrality advocates, though the important get-out clause for industry is in 3(d) "ensuring the maintenance of a robust best efforts Internet for all". The telcos and big technology companies can drive a plethora of coaches and horses through that. And in fairness to them, as long as infrastructure capacity and investment are overloaded and underfunded respectively, they have a defensible stance. Despite the economic crisis it's time for Keynesian network economists to be making the case for massive modern infrastructure investment and development.

There is no such specific get-out clause for the copyright industries when the Council Conclusions underline "The importance of promoting the ability of users to create, distribute and access online content, applications and services of their choice, as required in Directive 2002/21/EC (Framework Directive);"

Overall it is, perhaps, a surprisingly positive commitment in principle by the EU Council to an open and neutral internet.  Whether it will have any real meaning in practice remains to be seen.

Council of Europe book on media and human rights

At the invitation of Article 19, I attended the launch of a new Council of Europe book on Human Rights and a changing media landscape yesterday at the Free Word Centre in London. Thomas Hammarberg, the Council of Europe Commissioner for Human Rights, led the panel of authors in a wide ranging discussion of freedoms in a digital age.  The website has a nice synopsis of the book

"The media play a crucial role in the protection of human rights. They expose human rights violations and offer an arena for different voices to be heard in public discourse. Free, independent and pluralistic media are a core element of any democracy. However, the power of the media can also be misused to the extent that the very functioning of democracy is threatened. Some media outlets have been turned into propaganda megaphones for those in power. Others have been used to incite xenophobic hatred and violence against minorities and other vulnerable groups.

Now the phenomenon of social media presents us with a range of fresh challenges. Blogs, video and social networking sites have become a key forum for political debate and organisation – so much so that they have provoked counter-responses from some repressive states. While there is a need to ensure better protection of personal integrity in social media, the right to freedom of expression must not be undermined.

The purpose of this publication is to contribute to a more thorough discussion on media developments and their impact on human rights in a constantly changing media landscape. Eight experts were invited to contribute their personal assessments of trends and problems. They have not shied away from addressing controversial issues or providing far-reaching suggestions. Together their texts indicate that there is a need for stronger protection of media freedom and freedom of expression in Europe today. These are clearly topics of paramount importance which demand serious public debate."

But actually there is nothing like hearing it first hand from the authors.

The Commissioner opened proceedings noting the human rights cause really needs a free and professional media.  Rights organisations fundamentally depend on free and professional media but he is seriously worried about current trends in this area all over the world.  We can note the positive effects of social media and the internet's value for demonstrators.  But governments have been very active in regulating new media and it is important that we understand how to avoid strangling fundamental rights of freedom of association and expression in the process.

Some of the threats are the same as they have been with traditional media and the Commissioner wanted to highlight the abuse and murder of journalists in Russia, Turkey and Azerbaijan.  In some of these cases a killer has been caught and prosecuted but those responsible for orchestrating  the murder have escaped and continue to escape justice.  This creates a chilling effect where people are afraid to speak out for fear of their lives.

There are other pressures on a free press such as the criminal defamation laws in about half the member states of the Council of Europe.  In some cases these laws lead to journalists getting imprisoned or subject to disproportionate and unreasonable fines.  This also creates a chilling effect.  There are currently 70 journalists in prison in Turkey as a result of their writings alone.

Governments like to control media output and that desire for control is not limited to repressive regimes. Hungrary's implementation of a new liberty bashing media law earlier this year at the same time as the country was holding the presidency of the EU is an important example.

Freedom of information is fundamental, the Commissioner believes.

Another threat is monopolies in the private sector.  Pluralism in radio and newspapers is under a more serious threat than for a very long time.  The oligarchs who control the media have their own agendas and bend their media control to serve those interests.  The Commissioner noted that transparency of ownership is key here but even that apparently obvious condition has become controversial in Albania.  Many journalists have been dismissed for attempting to do old style investigative journalism in particular when there was a possibility it might expose some nefarious activity that might be associated directly or indirectly with media oligarchs or their preferred social/professional/political circles.

The ethics of journalism is under threat, an important example being the News of the World phone hacking scandal.  It is important that the Leveson inquiry gets full support and comes up with recommendations that will be useful not just in the UK but in the wider European context.

The Council of Europe formally supports self regulation of the press.  But the Commissioner bluntly stated that it simply has not worked in many countries, including most of Europe.  Why is that?  Well very often the dominant media don't cooperate because it doesn't fit the interests of the oligarchs in control.

The result is there is less ethical journalism and serious journalists are having difficulty being heard.  You could argue, therefore, that there is a case for public service media.  Where there has been public service media it has been positive but we can't ever believe they will be completely objective.  The holy grail of total objectivity does not exist but public service media where they exist should strive to be as objective as possible.

The Commissioner therefore asked a collection of experts to contribute to the book and the 6 chapters therein broadly cover the points he outlined above.

Dr Agnès Callamard, Executive Director of Article 19, followed Commissioner Hammarberg

So there is a pressing need for public service media but the trend is not looking good on this. And the financial crisis has been an extra burden/excuse in that regard.

The disturbing trend of physical violence against journalists continues. A journalist in Azerbaijan was murdered 2 weeks ago.

Additionally Dr Callamard is concerned about legal violence against journalists and has observed a "deterioration by imitation" around Europe as countries copy each others' worst laws. There has been some progress on the decriminalisation of defamation but not much. The use and abuse of defamation laws remain a major impediment to freedom of expression.  There are multiple legal attacks in this area in western as well as eastern and central Europe.

And quite simply regulatory violence has a chilling effect.

Dr Callamard wanted to highlight the case of Hungary's terrible media law.  Hungary is a member of the Council of Europe and the EU.  When they got away with it, others will emulate it.

She also noted that the OSCE met this week and declined to adopt a declaration on freedom in a digital age. Yet the fundamental freedoms don't change with technological development so press freedom does need to be protected in our digital age.

Ali Sheikholeslami, the London correspondent for Euronews, who was chairing the panel, at this point noted it had been a "dark cold summer" for journalism with the phone hacking scandal and occasionally off the back of that it sometimes makes him ashamed to admit to anyone he's a journalist.

Aidan White, author of chapter 2 on ethical journalism and human rights, then came in and robustly suggested there was no reason for journalists to feel ashamed of their profession.  The issue in the News of the World case was corporate culture not journalism. It was also important to note that the nefarious criminal behaviour involved was exposed not by the police, the self regulators or the government but by journalists.

Mr White passionately believes we have to look again at the principles and values that underpin journalism and that this should feed into ethical behaviour in public life as a whole - including politicians and corporate leaders.

How do the media respectfully report the cruelties and tragedies of the world in which we live? Journalism is in crisis but sound ethical investigative journalism has a great future.  Good journalism, contrary to popular opinion, dominates access to information on the Net.  The debate about principled behaviour in journalism is really important but it can't be restricted to newsrooms.

Ethics has to be management led. (Mr White is a very articulate, convincing and passionate speaker but at that point I have to admit that the thought "is that a realistic prospect" ran through my head.).

He noted a lot of key problems are highlighted in the book and that we have to deal with energetic and sustained deceit in journalism.

Do we do this through regulation?  Well in nearly every country the print press is self regulated and the broadcast press is subject to statutory regulations.  Changing technology makes this approach useless. Therefore we need an open debate.  But we don't need what has happened in Hungary.  Though they have not used the draconian tools in the law there yet, they will.  South Africa are doing likewise and both have used the News of the World phone hacking scandal as an excuse.

The notion that media organisations can avoid any form of statutory control is not sustainable.  It is probably no longer possible to have self regulation of the press.  Co-regulation, that awkward compromise between statutory and self regulation, is the necessary path forward but we need to have the hugely important public debate on this.  It may also be necessary to have a privacy law but there must be built in protections in such a law for public interest journalism.

Prof Douwe Korff, joint author of chapter 6 along with Ian Brown, was the next speaker.  Prof Korff explained social media have features that are different to conventional media the most obvious being access to speech tools and audiences which were previously restricted to the professionals or the wealthy. He suggested the problem with social media was that ordinary people use it for private communications whereas organisations use it for professional ends.  At the professional end of the scale you can apply legal and ethical standards.  Private communications have different legal boundaries.

The technologies that are widely used for censorship in despotic regimes are the same technologies supposedly used for benign ends - like controlling copyright infringement or distribution of child pornography - in the West.

The data retention directive requires mass surveillance of people not suspected of any crime. How's that for a despotic law?

When technology can be used for abusive ends it will be so adopted and we have no cause to be smug in that regard in the West because governments and the private sector are engaged in unethical mass surveillance using these technologies.

Human rights standards are universal and should apply in the online as well as offline worlds. Offline they can be tailored to the specific sovereign jurisdiction and the European Court of Human Rights accepts multiple variations in the specific regulations governing freedom of expression in member states.  Yet if we are to apply the most restrictive of these laws online then you end up with unconscionable cases like the US citizen of Thai descent getting arrested and jailed for two years when he visited Thailand for something he wrote on the Net in the US.  Such transnational applications of domestic legal standards lead to real problems.

Another key issue in relation to human rights is that the internet is effectively controlled by the private sector.  How, therefore, do you ensure the private sector not only respects but also upholds the rights of users?  These private companies are not equipped to do so.  They cannot be expected to make subtle human rights judgments.  They are in business to make money so neither are they motivated to protect the rights of users.

So when these companies operate in repressive regimes they will do the will of those regimes and we have seen multiple examples of this.

Prof Korff also mentioned he is working with his fellow author Ian Brown on a framework to encourage the private sector to respect human rights.  In many online contexts punishment is arbitrary, lacks transparency, lacks due process, with limited access to remedies or appeals. That is not an environment in which human rights will be respected and so intermediaries like the telecoms companies and ISPs need support in protecting human rights.

Boyko Boev of Article 19 and co-author with Barbara Bukovska of chapter 5 on public service media and human rights, was the last of the panel into the fray before the audience got the opportunity to ask questions.  He symbolically instructed the audience to open the book at page 133, the first page of his chapter, before pointing out that public service media is a hot issue in Europe. The problems with public service media in Europe have been highlighted by a Council of Europe expert group.  Their report noted 4 key issues

1. the transition from public service broadcasting to public service media
2. competition with the private sector
3. securing the independence of public service media from the state and the powerful private sector
4. lack of funding

He tried to look at public service media from a human rights perspective focusing on transparency and accountability and found it instructive to use the epistemological framework relating to a "rights based approach to development". And the Article 19 issue paper, Public service media regulation in Europe: future or funeral was his starting point.

The problem of public service media is not recognised in a lot of countries.

From an economics perspective there is no money. From a human rights perspective there is no question but that public service media are essential.

Then Ali Sheikholeslami addressed 2 questions to Aidan White and Commissioner Hammarberg:

1. How do we guarantee conglomerates will not have too much power
2. How do we guarantee governments don't undermine freedom of expression.

Mr White answered that transparency and disclosure are the key - who is saying what and why; who owns what; what are their interests etc.  It is scandalous for corporate power to have influence without disclosing potential conflicts of interest.

On regulation we need to modernise the root and branch of regulatory institutions because the existing ones are creaking and not fit for purpose. We have an opportunity to move towards more forms of self rule and we have to find a way to make self regulation workable through co-regulation.  This can't be a restraint on the right to report but a regulatory body should have the power to do minimal investigations and e.g. call witnesses.  The Press Complaints Commission is bound by a lack of authority.

We can make self regulation more creditable through co regulation.

Commissioner Hammarberg concluded this part of proceedings by noting transparency is really important.  He had just come from Ukraine where private sector media oligarch control and public service media control are coming together just as it did in Italy under Berlesconi and likewise in Georgia and Azerbaijan.  He agrees with Mr White that self regulation, attractive though it might be in principle, does not work in practice.  We need a thorough analysis of how to make it effective without restricting or damaging freedom of expression.  The idea of having a co-regulatory legislative basis is worth discussing and exploring.  But the key is who is going to be involved in making such laws and civil society's input is crucial.  The structures of the EU are certainly not ready to take this on, however.

At this point the floor was opened to questions and I will endevour to do another short report on the Q&A when time and a following wind allow.

The lobbyists and the PM: Bell Pottinger calling the kettle black

The Independent's front page story today is on PR company Bell Pottinger's alleged influence on the UK government. It's based on an undercover investigation carried out by the Bureau of Investigative Journalism.

I'm not a big fan of lobbyists but some of the individuals caught on camera actually come out of the story slightly better than you might expect.  They are quoted as showing interest in working to improve the image of the Uzbekistan regime but only if that government demonstrates an intent to improve its behaviour on human rights.

"A number of [our client] governments have had serious reputational issues,"[...]
But he also stressed a need for genuine commitment to reform. "Everything we are recommending is predicated on the agreement by the government to change," he said. "[That] justifies why a PR company is representing a country which previously people shouldn't have been talking to. Now it actually wants to change it is fully acceptable."

Another executive stressed, whilst talking about one of the firm's clients: "I wouldn't actually represent a client whom I didn't believe."

He added: "Just trying to sell the situation as it is or to say that things are changing when in reality they aren't is not going to work. Once we're clear that we've got the collateral, the proof that things are changing, then obviously we have the connections to get the message through to the right people."

They're also reported as boasting easy access to and influence over government, though that's hardly surprising in a meeting where they are attempting to promote their services to secure a lucrative contract.

It's probably the government and in particular the prime minister who comes out of this with the least credit, if the PR consultants (or the journalist's reports) are to be believed.  Mr Cameron and the deputy prime minister Nick Clegg have been repeatedly quoted about the damaging effects of the disproportionate degree to which lobbyists and big business influence government. They even have plans for a register of lobbyists.

The alleged lightning speed at which a business can get a message through a PR firm to the prime minister, who then instantly takes that complaint to a foreign head of state, in this case China, therefore, will be cause for concern. Whether that concern arises from being found out or a desire that such influence should not be so powerful is another question.  What was predicatable in the world of Westminster, the media and PR was that the PM's office would issue a denial:

"Bell Pottinger nor any other lobbying firm has any say or influence over government policy."

The almost amusing part of the story comes at the tail end where, through their lawyers Carter Ruck, Bell Pottinger declare:

"The conduct of the Bureau of Investigative Journalism does not remotely constitute responsible journalism. It is an attempt by unethical, deception to manufacture a story where none exists."

A case of the Bell Pottinger calling the kettle black? {Assuming you define a kettle (or the Bureau of Investigative Journalism) as 'a vessel designed to withstand high temperatures, used in various processes such as refining and brewing' (stories)}

Open University Access to Success fund for poorer students

I just got an email from the Open University's Director of Development regarding a fund the OU are setting up to facilitate access to our courses for poorer students who will not have access to student loans or the government's new National Scholarship Funding. It deserves wider circulation hence I've reproduced a copy below.

"Dear Colleague,

I am writing to you as I am concerned about future funding for some widening participation students in England who take part in introductory Openings courses. For many students, successfully completing an Openings course means that they have the skills and the confidence to forge ahead to complete their chosen qualification.

However, the new National Scholarship Programme will not be available to Openings students, and nor will those students be eligible for loans. Those courses, though, are a vital gateway to OU study and give confidence to people with no prior Higher Education experience.

We have created an Access to Success fund which will specifically provide financial support for Openings students who cannot afford to pay their own fees. The University has asked the Development Office to raise money for this fund to ensure that those taking their first steps into Higher Education can do so without finance being a barrier to entry. I was delighted that the first £100,000 was donated by OU students themselves through a generous gift from the OU Students Educational Trust. I am now writing to you as a member of staff to ask you to consider making a donation. A wider fundraising appeal will start next year.

Ahead of a public launch, we have been given a time-limited opportunity for donations to be matched by Sir Alec Reed CBE, a friend and generous supporter of the OU, and the OU’s Pro-Chancellor and Chair of Council, Lord Haskins. It means that a donation made next week through The Big Give Christmas Challenge (Sir Alec’s fundraising initiative) could be match-funded by both The Big Give and Lord Haskins. In addition, Gift Aid can be added. This means that in total, a donation of £10 could be worth £23 towards the new fund.

This is the first time that many OU staff members have been directly asked to consider making a donation to the University. These are unprecedented times for the institution. We are determined to ensure that we can continue to provide opportunities for the most disadvantaged.

Many members of staff already choose to contribute in this way. The OU is an educational charity and, over the years, many of its alumni, students, staff and friends have shown their support through donations. In fact, just last year, more than 9,000 people and organisations made contributions to the University totalling more than £2.4 million.

As a member of staff, your contribution to enriching our students’ lives is invaluable. I am hoping that you might consider joining me in supporting our students through this appeal and I will be in touch again next week to let you know how to donate.

Best wishes,

Edith Prak

Director of Development

The Open University"

ICT & schools - we're getting it all wrong

The Next Gen. Skills campaign is kicking off today:

"One of the founding fathers of interactive entertainment and fiction Ian Livingstone OBE and Double Negative MD Alex Hope OBE will announce that some of the biggest names from the UK digital, creative and hi-tech industries have joined up with leading skills and educational bodies to back a new campaign aiming to improve the computer programming skills needed for the future growth of the UK’s economy.

Launching a day before the Chancellor’s Autumn statement, the Next Gen Skills campaign showcases:

• Announcement of major industry supporters
• Key policy objectives and industry demands
• How high-tech skills contribute to the growth agenda
• Reactions to the Government’s response to the Livingstone-Hope Review"

Three cheers for Alex Hope on the BBC this morning where he did a great job of explaining to the ever technophobic Today folk the importance of teaching kids about how computers work.  It is a truly appalling indicator of the state of our broadcast culture and education system that we are even having to ask the question.

I knew the ICT curriculum in schools was not even in terminal decline - that would have implied it once had a spark of life in it - but completely devoid of even the pedagogic DNA that might one day give it life, on talking to an ICT teacher a few years ago.  He explained to me with some enthusiasm one of the "exciting" activities, particularly for the boys, his class had been engaging in for that past few weeks. The activity?  Drawing up a balance sheet for a hypothetical car dealership using Microsoft Excel.

"Exciting?" I queried, a little less impressed than he had anticipated.

"Because Boys like cars, don't you see." he replied, baffled at my lack of outwardly visible joyful exhilaration (or was he just amazed at my remarkable self control?).

Kids learn more about computers from mucking about with Gamemaker or Scratch or the dreaded (by parents) MMORGs, or the plethora of wireless enabled gadgetry they own than they do in a school ICT class. IF the substantive chunk of the next generation, necessary to sustain a robust 21st century economy, are to learn to use computer and networking tools creatively and productively then it is vital that it be underpinned by a strong educational infrastructure.

It's an opportune time to remind people of the 20 recommendations of the Livingston Hope Review:

"Twenty recommendations across the talent pipeline

Schools

Recommendation 1. Bring computer science into the National Curriculum as an essential discipline.

Recommendation 2. Sign up the best teachers to teach computer science through Initial Teacher Training bursaries and ‘Golden Hellos’.

Recommendation 3. Use video games and visual effects at school to draw greater numbers of young people into STEM and computer science.

Recommendation 4. Set up a one-stop online repository and community site for teachers for video games and visual effects educational resources.

Recommendation 5. Include art and computer science in the English Baccalaureate.

Recommendation 6. Encourage art-tech crossover and work-based learning through school clubs.

Recommendation 7. Build a network of STEMNET and Teach First video games and visual effects Ambassadors.

Recommendation 8. Introduce a new National Video Games Development and Animation Schools Competition.

Recommendation 9. Design and implement a Next Generation of Video Games and Visual Effects Talent Careers Strategy.

Recommendation 10. Provide online careers-related resources for teachers, careers advisers and young people.

Universities, Colleges and Vocational education

Recommendation 11. Develop kitemarking schemes, building on Skillset accreditation, which allow the best specialist HE courses to differentiate themselves from less industry-relevant courses.

Recommendation 12. HEFCE should include industry-accredited specialist courses in their list of ‘Strategically Important and Vulnerable’ subjects that merit targeted funding. Industry commits to these courses through industrial scholarships and support for CPD for lecturers.

Recommendation 13. Raise awareness of the video games and visual effects industries in the eyes of STEM and arts graduates.

Recommendation 14. Give prospective university applicants access to meaningful information about employment prospects for different courses.

Recommendation 15. Develop a template for introducing workplace simulation into industry-accredited video games and visual effects courses, based on Abertay University’s Dare to be Digital competition.

Recommendation 16. Leading universities and FE colleges sponsor a high-tech creative industries University Technical College (UTC), with clear progression routes into HE.

Recommendation 17. Kitemark FE courses that offer students the best foundation in skills and knowledge to progress into Higher Education.

Training and continuous professional development

Recommendation 18. Skillset Creative Media Academies and e-skills UK’s National Skills Academy for IT to work with industry to develop specialist CPD training for video games and visual effects industries.

Recommendation 19. Support better research-oriented university-industry collaborations in video games and visual effects.

Recommendation 20. Continue to treat the 18 visual effects occupations on the Government’s shortages list as shortage occupations."

None of this is new - you'll see the same recommendations in multiple government reviews of maths, science and language education.  Some of it I don't agree with - the kite/quality mark stuff is energy sapping, distracting, superficial inspection based tick box nonsense.  But the baseline recommendation:

of putting smart dedicated teachers together with decent tools/facilities, a broad based relevant curriculum with sufficient professional freedom to experiment and kids with a natural curiosity about this stuff

would, if the political establishment had sufficient guts and long term vision to pursue it [sic], create magic.

ECJ rule out blanket filtering in Scarlet v SABAM

The European Court of Justice has published its decision in the case of Scarlet v SABAM, Case C‑70/10. This is the Belgian case where the entertainment industry and creative artists representative body SABAM had sued Scarlet, an ISP, in an effort to have the respondent compelled to install filters. The filters desired were pretty broad and crude, though, and the Court, predictably, ruled in favour of the ISP, on a narrow interpretation of the facts.

Expect a positive spin on the decision from both sides in spite of the apparently crystal clear outcome in favour of Scarlet.

The conclusion was:

"the Court (Third Chamber) hereby rules:

Directives:

–        2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’);

–        2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society;

–        2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights ;

–        95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data; and

–        2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications),

read together and construed in the light of the requirements stemming from the protection of the applicable fundamental rights, must be interpreted as precluding an injunction made against an internet service provider which requires it to install a system for filtering

–        all electronic communications passing via its services, in particular those involving the use of peer-to-peer software;

–        which applies indiscriminately to all its customers;

–        as a preventive measure;

–        exclusively at its expense; and

–        for an unlimited period,

which is capable of identifying on that provider’s network the movement of electronic files containing a musical, cinematographic or audio-visual work in respect of which the applicant claims to hold intellectual-property rights, with a view to blocking the transfer of files the sharing of which infringes copyright."

The bottom line is that the Court believed the ISP level filtering demanded by SABAM, a system to filter:

– all electronic communications passing via its services, in particular those involving the use of peer-to-peer software;

– which applies indiscriminately to all its customers;

– as a preventive measure;

– exclusively at its expense; and

– for an unlimited period,

was over-reaching. That the decision was so short - a mere 55 paragraphs - and clear is an indication that it wasn't that difficult a challenge for the Court in relation to the specific facts of the case.

I can only agree with Jeremy Phillips, however, that the decision is quite narrowly focused and the race will now be on to see what kind of filtering will be considered acceptable. Newzbin 2 anyone?

The Court makes reference to the excessive surveillance features of the SABAM demanded filtering system and the disproportionate interference with

(a) the right of the ISP to engage in commercial enterprise and
(b) the fundamental rights of the individual

that such filtering would result in.

They also refer approvingly to the earlier ECJ Promusicae case which emphasised  the need to respect intellectual property rights but not at the expense of more fundamental freedoms such as privacy and free expression. The key elements are:

"39      Preventive monitoring of this kind would thus require active observation of all electronic communications conducted on the network of the ISP concerned and, consequently, would encompass all information to be transmitted and all customers using that network.

40      In the light of the foregoing, it must be held that the injunction imposed on the ISP concerned requiring it to install the contested filtering system would oblige it to actively monitor all the data relating to each of its customers in order to prevent any future infringement of intellectual-property rights. It follows that that injunction would require the ISP to carry out general monitoring, something which is prohibited by Article 15(1) of Directive 2000/31...

43      The protection of the right to intellectual property is indeed enshrined in Article 17(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’). There is, however, nothing whatsoever in the wording of that provision or in the Court’s case-law to suggest that that right is inviolable and must for that reason be absolutely protected.

44      As paragraphs 62 to 68 of the judgment in Case C‑275/06 Promusicae [2008] ECR I‑271 make clear, the protection of the fundamental right to property, which includes the rights linked to intellectual property, must be balanced against the protection of other fundamental rights...

47      In the present case, the injunction requiring the installation of the contested filtering system involves monitoring all the electronic communications made through the network of the ISP concerned in the interests of those rightholders. Moreover, that monitoring has no limitation in time, is directed at all future infringements and is intended to protect not only existing works, but also future works that have not yet been created at the time when the system is introduced.

48      Accordingly, such an injunction would result in a serious infringement of the freedom of the ISP concerned to conduct its business since it would require that ISP to install a complicated, costly, permanent computer system at its own expense, which would also be contrary to the conditions laid down in Article 3(1) of Directive 2004/48, which requires that measures to ensure the respect of intellectual-property rights should not be unnecessarily complicated or costly.

50      Moreover, the effects of that injunction would not be limited to the ISP concerned, as the contested filtering system may also infringe the fundamental rights of that ISP’s customers, namely their right to protection of their personal data and their freedom to receive or impart information, which are rights safeguarded by Articles 8 and 11 of the Charter respectively.

51      It is common ground, first, that the injunction requiring installation of the contested filtering system would involve a systematic analysis of all content and the collection and identification of users’ IP addresses from which unlawful content on the network is sent. Those addresses are protected personal data because they allow those users to be precisely identified.

52      Secondly, that injunction could potentially undermine freedom of information since that system might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications. Indeed, it is not contested that the reply to the question whether a transmission is lawful also depends on the application of statutory exceptions to copyright which vary from one Member State to another. Moreover, in some Member States certain works fall within the public domain or can be posted online free of charge by the authors concerned.

53      Consequently, it must be held that, in adopting the injunction requiring the ISP to install the contested filtering system, the national court concerned would not be respecting the requirement that a fair balance be struck between the right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information, on the other.

54      In the light of the foregoing, the answer to the questions submitted is that Directives 2000/31, 2001/29, 2004/48, 95/46 and 2002/58, read together and construed in the light of the requirements stemming from the protection of the applicable fundamental rights, must be interpreted as precluding an injunction made against an ISP which requires it to install the contested filtering system."

So in summary the SABAM required filtering system is crude and damaging because it doesn't respect the right to privacy, freedom of expression or the freedom to conduct a business. The case is a nice illustration of why Cory Doctorow argues that there is no longer such a thing as copyright policy but doesn't really get us a whole lot closer to a ceasefire in the copyright wars.

Update: ECJ press release on the decision is also available. What's interesting about the press release is that it states the decision of the Court in stronger terms than I suspect the Court intended:

"EU law precludes the imposition of an injunction by a national court which requires an internet service provider to install a filtering system with a view to preventing the illegal downloading of files
Such an injunction does not comply with the prohibition on imposing a general monitoring obligation on such a provider, or with the requirement to strike a fair balance between, on the one hand, the right to intellectual property, and, on the other, the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information"

A reading of the press release alone may have led some members of the press to interpret the decision as meaning that filtering on copyright protection grounds is universally prohibited. What the Court actually said was that the specific kind of filtering demanded by SABAM would breach a plethora of directives on ecommerce, copyright & related rights, data protection and intellectual property enforcement.

Update 2: SABAM are disappointed.
Glyn Moody wonders if it is a turning point in EU law.

Minister: UK music industry a huge success

Largely unremarked in the mainstream press the Parliamentary Under-Secretary of State for Culture, Olympics, Media and Sport, Ed Vaizey, (and other MPs) had some very upbeat things to say about the UK music industry in the House of Commons yesterday. His contribution to the discussion begins at 1.49pm.

"I congratulate my hon. Friend the Member for Selby and Ainsty (Nigel Adams) on securing this important debate. The fact that so many hon. Members have attended, intervened and made speeches shows that there is large-scale recognition throughout the House of the success of the music industry, and support for it...

We talked about the huge success of the British music industry—and it is a staggering success, with almost £4 billion of sales. Britain is the only country apart from the United States and Sweden that is a net exporter of music..

We have a thriving and vibrant music scene...we have a vibrant music ecology in this country..."

Sadly he also engaged in loose platitudes about "intellectual property theft", the alleged dazzling brilliance of the digital economy act and the Newzbin blocking activities and vague references to the Hargreaves report.

It does beg the question though that if the UK music industry is doing so spectacularly well, why so much energy continues to be expended on the expansion of copyright?  It would also be interesting from an economic perspective to see the underlying evidence for the suggestion that it is currently a nearly £4 billion industry and what specifically that £4 billion entails.

BBC legal advice on HD DRM

The BBC has now responded to my internal review request in relation to disclosing their legal advice on competition issues associated with HD DRM.  The review is very thoughtful and the analysis of the issues clear and enlightening. In summary the response suggests that:

(a) the BBC had no formal structured legal advice on the competition issues relating to introducing DRM on the HD Freeview platform;

(b) the legal advice that was sought was ad hoc and given in email communications on a range of issues over a number of weeks;

(c) the BBC should disclose the draft document (“Draft Submission”) they prepared on some of the competition and copyright legal issues which was intended for submission to Ofcom (but in the end not actually submitted);

(d) the BBC are going to review the relevant document before releasing a redacted copy by the 25th of November (next Friday).

Copy of the review below.

"Reference: 
  IR 
2011027 

Date: 

   17 
November 
2011 


Original Request and the BBC’s Decision 
By a request made on 6 June 2011, the requestor sought copies of all BBC
communications with Ofcom relating to the Ofcom consultation “Content
Management on the HD Freeview Platform”.  A number of documents were
then disclosed by the BBC under cover of a letter from Steve Gutteridge (BBC
Distribution) dated 8 July 2011.

The requestor then raised a series of questions relating to the disclosed
material.  Relevant to this internal review, the requestor asked if the BBC had
sought and/or received “professional legal advice on the competition issues
relating to:

(i)
Mandatory DRM removing the ability of consumers to purchase
receivers without DRM and the BBC leveraging its position as
holder of the multiplex licence to mandate DRM thereby affecting
competition at the level of the manufacturers;

(ii)
Rights holders’ possible collective efforts to pressurise public
service broadcasters into mandating HD DRM?”

In its response dated 25 August 2011, Rachel Ward (Information and
Compliance) confirmed that the BBC “did seek legal advice on our approach
to HD content management”.

Perhaps not surprisingly, the requestor then, on 25 August 2011, requested
disclosure of that legal advice and also copies of BBC documents and/or
briefings summarising that advice.  On 23 September 2011, Mr Gutteridge
wrote to Mr Corrigan informing him that the BBC was withholding this
information on the basis that it was subject to legal professional privilege.  It is
this final decision that I am now asked to review.

Issues Under Review 

Although the requestor has asked that the review focus on the foundation of
one argument relied on by Mr Gutteridge (that legal professional privilege is
perhaps at its strongest where it relates to a public body or quasi-public body),

---

I do not consider it to be my role to scrutinise specific pieces of reasoning
which led to the decision to withhold information.  My role is to look at the
issue afresh and to decide whether an exemption applies in respect of the
information that is sought.  I therefore summarise the issue that I am to
address simply in the following terms:

Whether the Section 42 (1) exemption (legal privilege exemption) requires
that the information be withheld.

Consideration 
In undertaking this review, I have considered the provisions of the Act and the
guidance issued by the Information Commissioner’s Office and the Ministry of
Justice on the exemption relating to legal professional privilege.  I have also
consulted individuals within the BBC, both in its Legal Division and in BBC
Distribution, who were responsible for advising the BBC on the content
management proposals relating to HD on the DTT platform and for
corresponding with OFCOM on this issue.

I have gathered together a very considerable body of information relating to
the BBC’s proposal for content management on the DTT platform.  In many
instances, one or more internal lawyers were party to internal communications
which fed into the BBC ‘s response to Ofcom’s consultation on HD Content
Management.  However, having spent a very considerable amount of time
gathering this information and reviewing it, it is clear that only occasional input
was sought or offered by lawyers on competition law issues.  It is important to
note, also, that there was no set piece formal legal advice that was provided
and, further, that the legal issues addressed in this advice do not closely
mirror the two issues highlighted by the requestor.

My assessment, therefore, is that legal advice was sought and given in email
communications on an ad hoc basis over a number of weeks on a range of
issues (“the Advice”), only some of which touch on (but do not mirror) the
issues highlighted by the requestor.  In addition to the Advice, a document
was prepared for possible submission to Ofcom outlining some of the
competition and copyright law issues that had been identified. It appears from
my enquiries that this separate legal document (“the Draft Submission”) was
not in the event submitted to Ofcom.

The requestor is seeking the BBC’s internal legal advice and also
documents/briefings which summarise that advice.  I consider that the Advice
corresponds with the first category of documents and that the Draft
Submission corresponds with the second category.

Notwithstanding the requestor’s observation that not all advice given by
lawyers is privileged legal advice (based on the House of Lords decision in
the Three Rivers Litigation), the wording of the request makes it clear in my
view that peripheral advice relating to business issues that may have been
provided by lawyers is not is what is being sought.  The requestor in terms
seeks “professional legal advice” on “competition issues relating to two

---

specific issues”.  Any presentational and/or commercial advice given by a
lawyer would fall outside the scope of the request.  I am satisfied, therefore,
that the Advice held by the BBC is subject to legal professional privilege.

Section 42 (1) is for qualified exemption and it is therefore necessary to
consider the public interest test.  In this case, apart from furthering the general
public interest in disclosure of information relating to public authorities, it also
possible that the public interest is served by the public understanding the
tenor of legal advice that was received may further the BBC’s accountability in
respect of the its actions.  However, in the absence of a formal, structured
piece of advice on the competition law issues highlighted by the requestor, the
disclosure of the Advice would in fact shed little light. I consider that the public
interest in disclosure is clearly outweighed in respect of the Advice by the
public interest in legal privilege being maintained (recognised by the
Information Tribunal in Bellamy v Information Commissioner as being a strong
public interest).  I see no factor in other words which displaces the public
interest in an organisation being able in confidence to seek and be given
candid legal advice on complex legal issues.

However, slightly different considerations apply to the Draft Submission
because, although this can be seen as addressing some of the same issues
as the Advice, it was prepared with a view to being provided to Ofcom as
representing the BBC’s considered position on the legal issues it addressed. It
was therefore prepared with a view to any legal privilege attaching to it being
waived.  This document can be regarded in my view as a BBC document
and/or briefing which to a degree summarises the legal advice that was
received (albeit, understandably, it does not address the full process by when
the BBC came to form its legal position).  Whilst legal professional privilege
does still apply to this document, it is of a lower order than attaches to the
Advice in respect of which, as I have explained, it is vital that organisations
can seek, receive and consider legal advice candidly and in confidence.  

I also believe that there is some public interest in disclosing the Draft
Submission.  This is because it may aid public understanding of the legal
basis of the BBC’s submission to Ofcom on HD Content Management
because the Draft Submission provides legal analysis of some of the issues
raised by the BBC in its submission.  The disclosure of this document does
not risk in my view revealing the train of thought of the legal advice that was
sought and received and, therefore, does not undermine the confidentiality of
that important and sensitive process.  

Decision 

I endorse the BBC’s application of the Section 42(1) (legal professional
privilege) exemption so as to withhold the legal professional advice sought
and provided to the BBC on the two issues that the requestor has highlighted.

However, I have concluded that the same does not apply to the final version
of the Draft Submission document that was prepared with a view to it being
provided to Ofcom.  Whilst earlier drafts of that document should not be

---

disclosed because they may reveal the train of the legal advice that was
sought and given, the final draft can be seen as setting out the BBC’s settled
position for external submission.  My conclusion, therefore, is that the final
draft of the Draft Submission only can be disclosed, redacted to remove any
personal or commercially sensitive data in accordance with the Freedom of
Information Act and redacted so as to remove information that is not relevant
to the request. "

More Panasonic DMR EX75 DVD tinkering

My Panasonic DMR EX75 DVD recorder with the dodgy DVD drive was back on the blink this week. It started refusing to pick up the Freeview signal again.  It's been a year since I replaced the capacitor that's prone to overheating on these machines and, sure enough, on lifting the lid and inspecting the over-stressed replacement capactor, that's the problem again.

You need to remember if you're going to tackle this problem that when you take the metal cover off there is still some dismantling to do. This is the picture under the metal cover:

At this point you need to unplug the connector strips from both sides of the green PCB and remove the screws from the corners of that PCB and carefully unplug it.  There's a smaller green pcb towwards the front of the machine above the one you're removing and you'll need to loosen the two retaining screws on this as well before lifting out the bigger board.  You can then get at the dodgy capacitor.

Clip the old capacitor legs off as high as you can in order to leave plenty of purchase to crimp your new capacitor legs on.  This makes the subsequent soldering much easier.  If you cut the legs too close to the surface of the board soldering is extremely fiddly and it's very difficult to get a clean connection.

Now carefully replace the pcb.  I wasn't careful enough and snapped the newly replaced capacitor off the bottom board.  Back to square one.  Pcb off, re-solder the capacitor and carefully replace the pcb. Plug the connector strips back in.  Put the metal cover back on and you're done!

Except that in my case I wasn't.

On connecting the machine back to the TV and switching on, the DVD drawer comes out, the display starts flashing and eventually tells me I've got a U61 error.

This is the same DVD drive that the machine's DRM is preventing me from using. After a lot of communications with them last year, Panasonic eventually agreed to replace the faulty DVD drive free of charge via J.F. Associates.  Shortly thereafter the stressed capacitor failed and I replaced it.  At this point the Pansonic's DRM decided it didn't approve of my DVDs and wouldn't play any of them!

Ok I haven't been able to use the DVD drive anyway so I'll live with the U61 DVD drive error.  No can do says the machine.  Because as long as there is a U61 error it is going to keep whirring and flashing, sticking the DVD drawer in and out, switching the stations on the TV, sticking messages on the TV screen and generally making it impossible to watch the TV or use the hard drive on the Panasonic. Honestly it's like a scene out of a Morecombe and Wise sketch.

It's resort to the manual and online forums time.  On consulting the troubleshooting section in the manual it tells me this is not a fault (the forums beg to differ) and that I should just let the machine go through the motions of resetting itself; and then turn it on when it powers down.  I let the machine whirr and flash and guess what - the manual is wrong and the forums are right.  The problem persists and no amount of automated resetting is getting rid of the fault.

I tried a variety of fixes none of which worked.  Then I decided to try unplugging the connector strips connecting the DVD drive to the circuit board and connecting the machine to mains electricity with the DVD drive disconnected. The theory was that whatever software loop was causing the automatic reset to fail might be bypassed if I disconnected the drive, thus enabling a fix. There are four of these connectors:

It's probably best isolate them with insulating tape to avoid shorting, before replacing the machine cover and plugging into the mains. I gave it about 15 to 20 minutes to reset (I hoped though not with a great deal of optimism) before disconnecting it from the mains again. 

The final stage was to plug the four DVD drive connector strips back into the green pcb, put the lid back on and try connecting it up to the TV and mains again.  This time it worked. The Panasonic can pick up the Freeview signal and record to and playback from the hard drive again.

Now dare I believe that, as a side effect of this tinkering, some sense might have been knocked into the machine's DRM, to the extent it might play my DVDs again? I know if I try it the system will have a heart attack and just give up but I can't help myself.

Open the DVD drawer.

Put in a DVD (Red fwiw).


Close the DVD drawer.

Hold my breath.

Whatdaya know...

It plays!

Why didn't I think of doing a disconnect reset this time last year! [Probably because at that point in the saga I had given up (unfairly as it turned out) on Panasonic ever helping and bought a cheap DVD player to play my discs.]

In any case the DMR EX75 is back in operation until the next time... I'm hoping at the very least that it survives the stress of the holiday season.

Note: pictures, as before, are from the AVForums thread that pointed me at the suspect capacitor this time last year.

The anti-social nature of social networks

Whilst working on other things I came across two excellent essays on social networking today, one from maciej on Pinboard and the other from Charlie Stross. The former articulately describes the highly anti-social nature of the architecture of social network services. The latter critically assesses a social network analytics firm.

There are echoes of Alessandro Acquisti's SCL 6th Annual Policy Forum keynote address in both. Acquisti is interested in the behavioural economics of privacy.

Maintaining privacy in a social networking context involves engaging in the complex calculus of balancing an immediate cost (eg deciding not to participate) against a future benefit (preservation of privacy) and we're not particularly good, as social creatures, of tipping the balance in favour of the long term benefit.  Hence the traditional Schmidt/Zukerberg 'solutions' to privacy -

[let the market decide]/[no one's forcing you to participate]/[transparency]/[user control] = privacy expedited

don't work.  Counterintuitively, the experiments that Acquisiti has done demonstrate that the user, who believes that they have more control over their personal data, trusts the entity offering that superficial control and ironically discloses more personal data. Whereas natural suspicion of economic agents (companies) not offering that apparent control leads to more limited disclosure.

One of the many other problems with mass personal data pollution is that the negative events/perceptions show a greater longevity than the positive.  Or as Acquisti says, when it comes to privacy, "the bad is not only stronger than the good it is also discounted differently."

If there is a record on a social network or elsewhere in the personal data morass on the internet of someone getting a major award, engaging in a heroic act or just doing something which shows them to be a decent human being, the social kudos associated with that postive event has a limited life.  If it was 5 years ago, for example, we ask what has he done in the meantime?  But a negative event is much longer lasting - a bad deed five years ago will still be held against you.  That's human nature.  The net takes away the ability to forget and the human pscyche makes it difficult to forgive, particularly in an era of a 24 hour news cycle with a voracious appetite for bad news.

(Just an aside, it's been impossible in the spotlight of that news cycle, for any kind of rational public debate to emerge on the border control story in the past few days because of the competition in shrill tough talking hysteria; and the opportunity to explain the power of intelligence led surveillance compared to irrational and unworkable blanket/mass surveillance is lost in the fear of potential media accusations of being soft on immigration/terrorism/crime/[pick your favorite bogeythreat])

So,

1. the architecture of social networks, 
2. our lack of capacity to weigh up or fully grasp the myriad of complex down stream uses of our personal data (we just cannot predict as consumers/citizens how our data will be used), 
3. our psychological tendency towards immediate gratification bias (give up data now, hang the consequences later), 
4. the rapid devaluing of past good deeds compared to the long-lasting impact of the bad 
5. and the power of technology to mine "anonymous" data and link it to individuals (eg through improving face recognition technologies) 
6. before we even think about the relative economic/information power relationship disparity

mean that the proposed solutions of

• transparency - telling the user this is your data and this is how we use it
• and superficial user control of data (here are some privacy setting buttons)

are not an adequate response to the complex problem of ensuring respect for private and family life in an information age.

Hargreaves’ exceptions: format-shifting, parody, research and archiving Prt II

Returning to the the Pictfor/Consumer Focus Hargreaves panel event, at the House of Commons on Tuesday evening this week, the fourth speaker on the night was James Sedry of Greenpeace, who admitted he had very little knowledge of intellectual property law and wasn't even aware of the Hargreaves review until recently but came to tell the story of how Greenpeace ran into problems in the past few months with IP.  Parody is critical for campaigning.  He didn't know there was a problem with it until Greenpeace produced a parody of a Volkswagen 60 second TV ad - the most shared ad online ever he said - of the little boy in a Darth Vadar costume trying to make things move with the force of his mind.  Greenpeace produced a parody of the ad criticising Volkswagen's opposition to controls on carbon dioxide emissions:



The parody went viral.  Four days into the release it had 2 million views and been shared 200k times on Facebook.  Then it was removed by YouTube following a complaint from George Lucas.  Greenpeace were shocked - they'd put a lot of money into it.  But they do have well paid lawyers who took it up with Google on fair use grounds and the ad was re-instated on YouTube.  That put the ball back in George Lucas' court - he can now take the matter up directly with Greenpeace if he wishes.  After two months Greenpeace has not yet heard from his lawyers.

The video was offline for two weeks during a key part of the Greenpeace campaign and Mr Sedry reckons it damaged the campaign. He is concerned that smaller grassroots organisations will not take the risk of running this kind of parody.

There was a slightly bizarre set of exchanges then when the chairman, Mr Dowd MP, put Mr Sedry - a copyright novice - on the spot by asking him how he would shape copyright parody exceptions. The Greenpeace man talked about maybe allowing non commerical parody and the whole thing got side tracked, until a member of the House of Lords (who was also a lawyer) in attendance intervened to give Mr Sedry a break, since he'd admitted he was not a copyright expert, and essentially said there would be no justification for banning commercial parodies; that we need a parody exception in the UK and unless there was a question of passing off and trademark infringement in the commercial context, where more than adequate remedies were available to commercial rivals, then there was no justification for slicing parody exceptions into an irrational commercial v non-comercial dichotomy.

There was a lively subsequent discussion during which the most significant contributions came from a Google representative, Professor Fiona MacMillan of the University of London, Barbara Stratton of the Libraries and Archives Copyright Alliance, a representative from Intellect and Saskia Walzel of Consumer Focus.

The Google rep suggested to Martin Brennan, "If you knew what you were asking people to do was illegal and you'd talked to lawyers you would not have got any investment." He went on to say that a Martin Brennan or Greenpeace would not find themselves on the wrong side of the law if they were based in New York, implying the US copyright regime was preferable to that of the UK. Big claim that... cough... DMCA... cough.  Martin Brennan responded by saying the VCR was illegal when it was launched but he wasn't necessarily concerned about designers having to push boundaries - he was concerned they find themselves outside irrational boundaries that they never would have expected to breach or simply did not know existed.  He also mentioned being aggravated by the BBC who point blank refused to mention the JB7 in a series of programmes that was heavily praising (rip, mix and burn) Apple iPods.

The Intellect rep asked Martin Kretschmer why couldn't format shifting be permitted universally.  Professor Kretschmer reasonably pointed out that the analysis of harm was a complex business and we need a carefully constructed IP landscape to encourage creators to create, investors to invest and consumers to buy. Unfortunately we seriously lack the empirical evidence base to provide a sound analysis of harm to inform policy.  Though Prof K. has made a significant contribution to that with his report for the IPO this week.

Saskia Walzel of Consumer Focus then raised the issue of economic harm in relation to the JB7.  In the case of the JB7 and the Greenpeace parody ad there was no economic harm.  The JB7 was enabling people to enjoy music they had already bought. Where is the economic harm. Additionally where is the economic harm to rightsholders from achiving? Why should the BFI be exposed to the kinds of risks black letter copyright law lays down when all they are trying to do is preserve and protect our cultural heritage.

Barbara Stratton of the the Libraries and Archives Copyright Alliance made the point that libraries and archives were essential for creativity. Dark archives are of no use if no one can access them. She passionately believes we need to change the law or we will get to a point where even the limited exceptions of the 1988 Copyright Designs and Patents Act will only apply to the analogue world and our digital heritage will be locked away behind the paywalls of aggressive content monopolies.

Professor MacMillan then very eloquently - and I'm really sorry I didn't write her words down at the time because I'm pretty sure I'd be repeating them relentlessly - pointed out the key public interest function of intellectual property law and how we seem prone to forget or ignore it.

Depressingly Jim Dowd MP declared, just before he had to disappear for a vote in the House, that if the government don't get round to implementing Hargreaves in the next couple of years it will not get done in this parliament, if ever.  In addition to the damage it would do the economy, that would be an insult to the work of the many people who fed into the review and to the memory of my friend, Mark Rogers, who considered it sufficiently important, in the final months of his life when he knew he was terminally ill, to devote time to producing evidence for the review (not to mention other earlier work he fed into it).

Martin Kretschmer neatly concluded proceedings by explaining that Hargreaves wants us to be careful not to over regulate but to understand that copyright policy - the subject of the evenings discussions - should focus on where it can make a difference to the creators, the investors (or as Mark Rogers would gently remind us that economists call them, the economic agents) and the consumers.

Well done to Consumer Focus & pictfor for setting up the evening and keeping the Hargreaves reforms in the spotlight and thanks for inviting me along.