Monday, January 07, 2013

Digital rights cyberlaw clinics

Thanks to an energetic group of academics including Martin Kretschmer, Lilian Edwards, DaithĂ­ MacSĂ­ghigh, Burkhard Schafer and many others including Tony Clayton at the UK Intellectual Property Office, CREATe, the Research Council's centre for copyright and new business models in the creative economy will be launched at the end of January.
"With an ambitious programme of 40 projects delivered by an interdisciplinary team of academics (law, cultural economics, management, computer science, sociology, psychology, ethnography and critical studies), CREATe is a pioneering academic initiative designed to help the UK cultural and creative industries thrive and become innovation leaders within the global digital economy...
The research programme links seven interrelated themes: (i) Good, Bad and Emergent Business Models; (ii) Openness and Open Business Models; (iii) Regulation and Enforcement; (iv) Creative Practice and the Creative Environment; (v) Intermediaries and Platforms; (vi) User Creation, User Behaviour and Community Norms; and, (vii) Human Rights and the Public Interest."
It's a great research initiative which will hopefully begin to get to the heart of these issues with empirical evidence, so more power to their collective elbows.

The Open Rights Group's Executive Director, Jim Killock is one of eight members of CREATe's governance board. Last year ORG which is run on a shoestring budget, and is one of the few organizations campaigning effectively in the UK on digital rights, had to make special appeals for funds to intervene in the Golden Eye case and to recruit a legal officer. The Golden Eye case is the first in what ORG hope will be a number of legal interventions in the public interest.

Even with a legal officer in place, however, ORG are not going to have the capacity to tackle all the necessary cyberlaw cases. Likewise the Foundation for Information Policy Research, Privacy International, Consumer Focus (soon sadly to be no more), Big Brother Watch or Index on Censorship.

I was half joking with colleagues before Christmas that we should be setting up a pro bono legal clinic to challenge the bad behaviors of the evil empires of the internet and the collective ignorance of parliament about technology. The public interest is vastly under-represented in the evolution of our information society and ORG, brilliant though they undoubtedly are, can only do so much with limited resources.

It is time for the academy to step up to  the plate. There are multiple academic managed and student fueled legal clinics throughout UK academia focused on a range of areas of law. A network of effective ORG pro bono clinics would be a small step in the right direction. Additionally, the direct intervention of groups of academic lawyers in key cases via amicus briefs and/or their direct professional support for ORG in such cases might be a welcome development.

With notable exceptions we're nothing like as well organized or active on this side of the pond as our cyberprof colleagues in the US. ORG has nothing like the resources of US equivalents like the EFF, EPIC or ACLU. If you're an academic with expertise in (ottmh) -
  • Digital rights
  • Anonymity
  • Privacy
  • Data protection
  • Data retention
  • Data management
  • Defamation
  • Identity
  • Biometrics
  • Blogging
  • Constitutional and administrative law
  • Medical privacy
  • Freedom of expression
  • Censorship 
  • Education
  • Environment
  • Employment
  • EU
  • Extradition
  • Extraordinary rendition
  • Freedom of information
  • Immigration
  • Mass surveillance
  • NotW phone hacking
  • Public protest
  • Search and seizure
  • Smart meters
  • State secrets & secret trials
  • Terrorism
  • Torture
  • Travel, PNR, airports, border control, TSA etc
  • Watchlists
  • Web tracking
  • Whistle blowing
  • Wiretapping
  • Surveillance
  • Security
  • Cybercrime
  • Digital forensics
  • E-commerce
  • Economics
  • E-voting
  • Governnance
  • Intellectual property - copyright, patents, trademarks, 3 strikes, databases, DRM, DMCA, EUCD, P2P, Berne, ACTA, DEA, gene patents, Google book, Hargreaves, image rights, levies, medical diagnostics, pharmaceuticals, publicity, section 301 reports, news-speak, software patents, business method patents, trade negotiations, TPP, CETA, trade secrets, web blocking, WIPO,
  • Intelligence and policing
  • Internediaries
  • Jurisdiction
  • Legal process
  • Libraries
  • Mobiles and tablets
  • International law
  • Net neutrality
  • Online child protection
  • Open access
  • Open source
  • Open data
  • Science and media
  • Search
  • Social networking
  • Statistics
  • Tort
- and short of a new year resolution, offering practical help to ORG and like minded public interest organisations in this way would not be a bad place to start.

The length of the list is illustrative of the challenge and that was just off the top of my head. I broke down the IP point into some constituent issues just to demonstrate how demanding this whole challenge is even if we were only focusing on IP. A nice summary of the Apple/Microsoft/Sony/RIM v Google/Intel bidding battle on the Nortel patents auction from 2011 gives a hint of what's at stake in just the mobiles and tablets wars.

A short review of just the IP story of 2012 I did for a colleague prior to the holidays included:
UK –

Hargreaves is still in play in the UK – the IPO have done an implementation report but the government have not given it a lot of attention Ofcom have done work on the DEA implementation and details of sanctions for suspected infringers.

One department in government has declared the blocking provisions of the DEA are defunct; another has introduced blocking on a protect kids from porn basis;

The Finch report let everyone down going for “gold” standard open access.

Richard Clayton and Consumer Focus published a terrific report on traceability of P2P copyright infringement

Lots of cases – eg DEA fake fine letters, Richard O'Dwyer, Newzbin, Meltwater appeal

Three big deals on EU level –

Commission signed ACTA in the early part of the year then got it rejected by the EU parliament in the summer (the parliamentarians got the idea there might be a problem following mass public protests in Poland). ACTA is reportedly dead but in reality in temporary stasis. At least 2 Commissioners have stated an intention to push it through regardless of what the parliament want. Additionally the new ACTA, “CETA” is now on the table (ACTA+).

EU approved (limited) directive on orphan works.

The Unitary Patent has been endorsed by the Council of Ministers just before Christmas. The theory is there should be a one stop euro patent shop rather than patent applicants having to going through expensive multi-jurisdictional patent application processes. Also proposing a specialist EU patent court so the ECJ would not have to deal with patent cases. The detail of the proposals is widely considered to be shambolic with IP experts almost universally opposed to the specifics as opposed to the overarching ideas.

Lots of interesting EU cases – eg ECJ decision in AstraZeneca v Commission in December (relating to alleged abuse of dominant position by preventing the marketing of generic drugs)

WIPO’s most recent SCCR ended in December. Various developments perhaps the most significant being the EU theoretically supporting a treaty for the blind and visually impaired; for the first time leaving the US isolated in opposing. (Particularly interesting in the light of EU siding with US to block the treaty in the summer and Judge Baer’s decision in the HathiTrust case in October).

The ITU summit on Net governance has a lot of hidden detail – similar to ACTA provisions – related to IP.

Myriad and the BRCA 1 and 2 patents have been in the news again, coming EU side plus a US court decision.
And lots of other interesting cases…
the mobile/tablet wars (Apple, Samsung, Google, Microsoft, Motorola, Nokia etc.) probably being the biggest… (Groklaw is terrific on the Apple v Samsung case)...
Viacom v Youtube (April) on intermediary liability, the silly automated takedowns (e.g. of NASA’s Mars Rover footage, the Hugo Awards and the Michelle Obama’s speech from the Democratic National Convention) and the Golan v Holder US Supreme Court decision from September which was something of a re-run of the Eldred v Ashcroft SCOTUS case in 2003 on copyright term extension. The reductionists had high hopes for Golan but it ultimately went the same way as Eldred (except with a 6-2 rather than a 7-2 majority this time). Rosetta Stone v Google was important on keyword advertising and trademarks in relation to functionality – if used in functional way it’s not infringement (though this will likely be narrowly interpreted) Akami v Limelight arguably expanded the scope of inducing patent infringement or ‘secondary patent infringement’ in US. The Sony v Tenenbaum and Capital v Thomas-Rasset cases were back in court this year on damages for p2p file sharing. Tenenbaum damages $675k upheld; Thomas-Rasset damages of $220k upheld. Plus of course Google wiped the floor with Oracle in the Java APIs copyright case.
And there were lots of interesting small events like the Republican Party issuing a report urging major copyright reform and immediately disowning it after a few heated phone calls from Hollywood executives...

Then there was... the Tobermory Cat dispute; Richard Posner started getting active on the dysfunctionality of the patent system – put himself in the middle of the Apple v Motorola case and threw it out and declared modern patents, especially software patents, restrict competition and creativity excessively; the big US Supreme Court rejection of drugs use patent in Mayo v Prometheus, US six strikes.
A full digital rights review of 2012 would be much longer but would include -
  • the temporary curtailment of SOPA/PIPA in the US
  • similar knocking of ACTA into temporary cryogenic stasis by the EU parliament
  • the conclusion of the Twitter joke trial and a variety of social networking offensive speech prosecutions, 
  • the developments with the horrendous Communications Data Bill (CDB, CCDP), 
  • ICO's siding with UK government on refusing to release 2008 draft of CDB
  • one branch of government's intention to drop the web blocking provisions of the Digital Economy Act followed by another's passion for web blocking with the excuse of protecting children
  • the Education Secretary's touting of open commerical access to the national pupil database
  • export of surveillance technologies to despotic regimes
  • Olympics rights and wrongs
  • Aviation industry's demands that FAA ignore privacy
  • ECJ 1st sale doctrine decision on software
  • EPDS opinion on EU data protection reform proposals
  • Partial conclusion of McKinnon and O'Dwyer extradition cases
  • FTC's instigation of data brokers investigation
  • Further evolution of the airport naked scanners saga
  • Big tech cos tax status
  • multiple cases of large personal data leaks
  • limited Protection of Freedoms Act
  • EU Data Protection agencies ordered Google to take positive steps to improve user privacy following the company's rationalisation of its multiple privacy policies in March
  • a US Presidential Commission on bioethics published "Privacy and Progress in Whole Genome Sequencing."
  • blog censorship by mobile operators
  • international trade negotiations
And again this list is barely scratching the surface of the issues.

In a rather long winded way - apologies for that - this brings me back to the point. There are too many important ongoing developments in digital rights for the excellent Open Rights Group and handful of other public interest actors to fight these battles on their own. So how about some energy from the academy, equivalent to that behind the CREATe programme, to enable the establishment of a network of ORG related digital rights cyberlaw clinics? In addition some active direct professional engagement,  through amicus curiae briefs in key cases would not go amiss, funded, if necessary, via specially targetted research grants.