Lauren Gelman, Assistant Director of Stanford Law School's Center for Internet and Society, writing for Findlaw, believes that despite the laudable efforts of the Howard Dean campaign, we have yet to see a real Internet election.

She has it absolutely right on the potential of the net to revolutionise elections through decentralization. Sharing the pessimistic outlook of her colleague at Stanford, Larry Lessig, however, I wonder at the collective ability of liberal democratic electorates to raise ourselves above the usual level of cynical apathy, to the extent that would energise the many to many participative real democractic process she describes.

I think she is also a little optimistic about the best ideas/debates/creative inputs automatically rising to the top. As Tim O'Reilly has so wisely said in the past, with billions of conversations or creative works, we can't read them all - we still need aggregators, who can put the producers in contact with those interested in the products of their creative endeavours. So even with a sufficiently participative electoral process along the lines the Net could facilitate, I predict that there would be an evolution to a kind of halfway house (between total central control and decentralization) of electoral process information supernodes. The centralizing urges of politicians and media moguls would be likely to attempt to converge on a kind of Clear Channel Communications model of control of these supernodes. But on the positive side, I'm a believer in the cock-up rather than the conspiracy theory of history and don't see a future of total control - there will always be leakage and the power of networks of people (note I didn't say the Internet) to nurture that leakage is very strong.

AOL are getting blamed for the increasing incidences of STDs in the US. Gives you a whole new perspective on computer viruses.

STDs are not the kind of infection worrying the security experts who assessed the proposed $22 million online system to allow Americans overseas to vote via the internet.

The experts said the system has numerous serious insecurities and should be abandoned, so naturally the politicos are going to go ahead with it. When you find yourself riding a dead horse the best advice is to dismount. This one is a lot more serious that putting lots of resources into trying to get a dead horse to move with living impairment enhancements, though. Why does this stuff have to be so difficult to communicate to people? I think I'm going try muttering "computers are not magic but they can be fantastic" repeatedly, to see if that has any affect.

The Electronic Privacy Information Center, EPIC, were not happy to find out that NorthWest Airlines, like JetBLue, had also been handling over passenger details for government related research on airline/airport/aviation security. They have complained formally to the Department of Transportation. They are also intending to sue NASA to find out what they did with the information supplied by the airline.

The Electronic Frontier Foundation, EFF, are calling for a congressional inquiry "into who has been seeking,
getting and giving passenger data to the government".

Meanwhile, E-Data, have settled a patent infringement suit with Microsoft over "downloading of information onto a tangible object." "We are quite pleased with this settlement, as it further reinforces the scope and validity of (our) patent in Europe," said E-Data hairman Bert Brodsky in a statement. "While the OD2 service is still in the nascent stage…the agreement sends an important essage to other companies infringing upon our intellectual property."

Looks like they may be planning to go after Apple's iTunes next.

Yet another example of the kind of idiotic "security measures" post 9/11 panic has triggered at airports is beautifully told at the Mommy blog.

"Luckily, this year we will all be traveling together on the same flight because we were able to find decent fares. Neither of us will have to brave it alone, like I did once last year, and will endeavor never to do again. I could not believe what they put me through. That rule about not holding a baby during a search--what is up with that?? Believe me, I am fully capable of holding my child far enough from my body to get that little wand where it needs to go, but there was just no negotiating a compromise. I had a purple, writhing, screaming baby, a toddler, and a preschooler with me, not to mention a double stroller clogging up the gate, and in the end I actually had to put the baby on the ground so that they could put me in the off-balance stance, search me, and invesitgate the wire in my bra.

By this time our 4 year old was a sniffling mess because we had forgotten to warn him that they would put his stuffed dinosaur through the x-ray machine. He actually threw himself onto the conveyor belt and crawled in after it, so I had to go in after him and then carry him through the sensor under my arm, wailing and wriggling like a marlin. I am normally polite and understanding, but this time I glared holes into the forehead of the woman who made my put my scared and screaming baby on the floor and asked her, "Do you have children? I do, and they were very secure children until a few minutes ago. They were very excited about this trip, and now I have six more hours to go, several of which will now be devoted to explaining why this is necessary, but not something to be afraid of." Total strangers came up to offer their sympathy and wonder at my composure. I wanted to shake that woman for putting her training so firmly in front of her line of sight that she couldn't see that it was scaring the children and pissing off the passengers. "

"The U.S. Supreme Court reversed an emergency stay on a case involving DVD descrambling Jan. 3. "

They said Matthew Pavlovich, who lives in Texas, cannot be sued in California, so he can now post the DeCSS (DVD descrambling code) up on the web again.

According to Larry Lessig,

"CBS is said to have refused to run MoveOn’s winning ad, citing its policy not to run commercials dealing “with controversial issues of public importance.” CBS will instead run ads from the White House Office of National Drug Control Policy — apparently an issue of public importance that is not controversial. Who would of thought an ad criticizing a $1 trillion deficit was more “controversial” than an ad about the war on drugs?

Here’s what the true libertarians have been saying for a long time — the biggest reason to worry about concentrated media in a world where media is regulated is exactly this."

Professor Susan Crawford is has been refreshing her cyberlaw syllabus and asked for ideas on what should be included.

Ernest Miller, amongst others, has replied.

Prof Crawford's syllabus for Spring 2004 is here.

ISP's without exception are not cooperating with the RIAA's new approach suspected file sharer identification, in the wake of the surprise decision in favour of Verizon just before Christmas. The RIAA are now asking the ISPs nicely to notify specific customers that they are RIAA suspects.

"Under the proposal, the RIAA would supply an identifying IP address of a suspected infringer to its ISP, which would then send a notice of infringement to the subscriber. "

An federal judge in the Microsoft v Eolas technologies case has upheld the huge patent infringement damages awarded against Microsoft by a jury in the summer of 2003.

"This motion rehearses a set of arguments that failed the first time around," Zagel wrote in his opinion. "While I am not entirely comfortable with the large size of the judgment, it is not my comfort that matters."

"San Francisco – Jan. 13, 2003 – TRUSTe, widely known for its global privacy
seal program, today announced four new additions to its board of directors,
including Joseph Alhadeff, vice president for global public policy for
Oracle Corporation; Hans Peter Brondmo, senior vice president of strategy
and corporate development for Digital Impact, Inc.; Peter Cullen, chief
privacy strategist for Microsoft, and Bennie Smith, chief privacy officer
for DoubleClick. Leveraging highly successful business and management track
records, the new board members will support TRUSTe as it provides guidance
and enforcement to its members and consumers on emerging privacy issues
such as wireless location-based services and spam"

Interesting.

According to Michael Cross in the Guardian, those of us opposed to the Home Secretary's national ID card scheme are 'nutters', 'ignorant' and 'inconsistent'. Doesn't that go a long way towards raising the quality of the debate?

Interesting contrast with an Economist article I pointed to before Christmas, saying

"Spurred by the misplaced enthusiasm of governments around the world, biometrics seem headed for dramatic growth in the next few years. But calm, public discussion of their benefits and drawbacks has been lamentably lacking. Such discussion is necessary both to prevent the waste of public money in the short term?for the most part, the private sector has been wiser in its adoption of biometrics?but also to regulate what will eventually have the potential to become a powerful mechanism for social control."

Whadaya know, the Guardian coming in to the right of the Economist.

McDonalds have been testing the use of biomentrics - fingerprint and handprint scanners - to monitor empoyees.

"At McDonald's, the scanners are connected to the payroll
department and save on paperwork, Christianson said. They also
free managers from record keeping and get them out working with
staff and the public, he added. "

The British Phonographic Industry director general, Andrew Yeates, has laid the ground for the roll out of RIAA-type individual lawsuits, on this side of the pond, for p2p file sharing:

"We want to increase awareness of the legal implications of file-sharing. If these are not working, there has to be a degree of enforcement".

He confirmed this position a the RSA's "Music And Technology: Policy Frameworks for the Future" which I attended yesterday. (More on that when I get a minute to myself).

I learn via "the importance of" that an Italian judge has declared Sony Playstation mod chips legal in a cleverly crafted opinion. From the judge:

"Ironically, [it is Sony who first] had supported strongly the thesis that a playstation is a true computer and not just a game console, when asked by the EU to pay for custom duties imposed over the consoles (while computers aren’t subjected to this tax)."

Ernest Miller's view:

"Ooops. Avoid those taxes, create an opening for the argument that the PlayStation is a computer (the use of which should be unrestricted)..."

Nice.

These are good - winners in the George Bush in 30 seconds ads competition. I hope they do the same for the eventual democratic candidate and for Tony Blair in the UK.

A judge has put a spoke in Lindow's chief Michael Robertson's attempts to help consumers claim their share of the $1.1 billion class action settlement against Microsoft in California.

"Lindows.com Inc.'s site, MSfreePC.com, promised to simplify the
process and provide instant gratification. Users, after answering a few
questions, were given Lindows' Linux operating system or other
open-source software instantly rather than having to wait six months
for paper claims to be processed.

Microsoft said MSfreePC violated the integrity of the claims process.
Lindows countered that Microsoft did not want to simplify the process
so that it could collect a bigger portion of any unclaimed money."

The judge sided with Microsoft.

Off the back of the IBM and Intel initiative I mentioned yesterday, it seems that Novell are to follow suit and offer legal protection (against SCO) to their linux customers.

Edward Hasbrouck, aka the practical nomad, has been delving into a privacy impact assessment for the US-VISIT scheme whereby visitors to the US get fingerprinted and photographed.

"The requirement for fingerprinting and photographing of visitors to the USA (except for short-term tourists from a few
countries, almost all of them inhabited mainly by white people) has gotten most of the attention paid to US-VISIT. But the real
privacy invasion feature of US-VISIT is buried deeply, and its significance evaded, in the Privacy Impact Assessment:
US-VISIT will be used to maintain a lifetime travel dossier for anyone who ever visits the USA, just as CAPPS-II will enable
the maintenance of lifetime travel dossiers on anyone who ever travels by air to, from, or within the USA...
In order to implement US-VISIT more quickly than would otherwise have been possible, it is being treated for Privacy Act
purposes as merely a "modification" of existing systems, rather than a new system. The US-VISIT data flow diagram on page 4
of the Privacy Impact Assessment includes a "modified database" labelled "biometric and biographic travel history", to be
included within the ADIS (Arrival Departure Information System).

These "travel histories" aren't mentioned anywhere in the so-called "assessment", which says of ADIS and other records only
that, "The policies of individual component systems, as stated in their SORNs [System of Records Notices under the Privacy
Act], govern the retention of personal information collected by US-VISIT." To find out anything about the policies governing
these records, one has to look at the most recent SORN for the ADIS system , which was published in the Federal Register on
12 December 2003.

Only there, deep in the acronym soup at 68 Federal Register 69412-69414, does one learn that these records may be
disclosed without restriction to any law enforcement agency in the USA or any other country (even if not actually relevant to
any specific investigation) and, even more significantly, that "Records will be retained for 100 years." Full stop."

A Belgian consumer group, Test-Aankoop, have decided to sue the music industry over copy-protected CDs that don't play in many CD players. EMI, Universal Music, Sony Music and BMG are the specific companies on the receiving end.

A former Treasury official in Australia is questioning the apparently "obvious" link between music downloading and reduced sales of CDs.

"If the healthy state of CD sales in the face of massive do-it-yourself competition surprises you, you are in good company. Midway through last year the Chicago University economist Stan Liebowitz was warning of annihilation. The recording industry loved him for it. He said large-scale unauthorised copying could soon make it obsolete.

Liebowitz has since had a change of heart. In a new study entitled Will MP3 Downloads Annihilate the Record Industry? he concedes that the evidence for annihilation has failed to materialise...

He concludes that the impact has not been large and says his best guess is that the worst of it is over, given that most homes that would want CD burners now have them."

The BBC have a similar report about CD sales in the UK. Apparently album sales were at a record high in 2003 up by 10 million units on the previous year. "Album sales in the UK rose by 7.6% in 2003 to a record high, fuelled by falling CD prices - in spite of piracy fears, according to an industry report. "

The editor-in-chief at Wired, Chris Anderson, has penned an open letter with some useful advice to Jack Valenti's forthcoming successor at the MPAA.

"You've still got a little time to figure this out, but a lot
less than your advisers are telling you...
Customers who feel they're getting their money's worth are less likely to turn into pirates...
You're at risk of alienating your customers like the music industry did...
the Napster for movies has been born. It's called BitTorrent...
So what should you do? Start by accepting that new technology means a new way of doing business...
And don't fight the technology. People want their digital media the way they want it: every way imaginable."

Net users and ISPs in France are not very happy with the proposed law to make ISPs responsible for filtering online material for illegal content.

Derek Slater is looking deeply into the potential conflict between intellectual property and free speech, off the back of the recent Pew report which suggested that the RIAAs tactics of suing individual file sharers was having a significant impact on the volume of P2P traffic.

Ernie Miller is puzzled at HP CEO Carly Fiorina's attack on digital piracy. "How strange the spectacle of a major computer manufacturer calling for an all out war on what computers enable"

Broadband is to be the FCC's top issue in 2004 according to this report at CNet. "Federal Communications Commission Chairman Michael Powell said that he doesn't yet support regulating broadband telephone service providers, but thinks instead that a national "forum" to guide the young industry is more appropriate." He re-iterated his feelings on VoIP, saying it should not be regulated like the existing phone companies and even called California's and Minnesota's attempts to do this "scary". Good for him. I didn't agree with Powell's call on media ownership but he's got it right on this one.

IBM and Intel and others are creating a $10 million dollar defense fund to pay the legal costs of companies getting sued by SCO.

The Gaurdian reports that "The residents of one Yorkshire town got so fed up with being passed over for broadband access that they set up Britain's first ISP cooperative."

28 entertainment companies have agreed, in court, not to sue ReplayTV owners for skipping ads.

The RIAA are sending troops out onto the streets to crack down on street vendors - "Though no guns were brandished, the bust from a distance looked
like classic LAPD, DEA or FBI work, right down to the black "raid"
vests the unit members wore. The fact that their yellow stenciled
lettering read "RIAA" instead of something from an official
law-enforcement agency was lost on 55-year-old parking-lot
attendant Ceasar Borrayo...
"They said they were police from the recording industry or something,
and next time they?d take me away in handcuffs," he said through an
interpreter. Borrayo says he has no way of knowing if the records,
with titles like Como Te Extra?o Vol. IV ? Musica de los 70?s y 80?s,
are illegal, but he thought better of arguing the point."

The Grocery Maufacturers of America have, none-too-cleverly, sent an email to a consumer group, CASPIAN, suggesting they are trying to dig up some dirt "about the
group's founder, Katherine Albrecht." Albrecht has spoken out strongly against RFID tags in the past.

Finally for today, check out lots of interesting stories at Instapundit.

A Very Belated Happy New Year.

Folks at The Independent are concerned about the UK government's new Civil Contingencies bill and a scared new world.

The RIAA had a bit of a setback just before Christmas in their pursuit of individual file sharers when an appeal court on the D.C. circuit rejected their subpoenas to Verizon to identify suspects. So theoretically ISP no longer have to hand over customer details to the RIAA. The appeal court was pretty blunt and said the text of section 512 (h) of the DMCA "does not authorize the issuance of a subpoena to an ISP acting as a mere conduit for the transmission of information sent by others." Donna has more.

Miriam Rainsford has an interesting commentary on Siva Vaidhyanathan's P2P essays at OpenDemocracy. She echoes, in this particular context, something John Naughton has been saying for some time: "we overestimate the short-term impacts of technology while underestimating long-term effects." I agree with Miriam also about the problematic use of emotive words but it does highlight a frustrating dilemma - in a world of short attention spans, before you can convince an audience of your perspective, you have to gain their attention. And using words like "anarchist" is a way to do that. If the language only leads to the usual polarised debate we see in the mainstream media then it gets us no further forward. However, if you can use it as a tool to alert sensible folk to the fact that there is a debate to be had and that it is a bit more complicated than the usual soundbites lead most people to believe, then there is some hope of progress. In the latter regard, I'd recommend both Siva's and Miriam's writings.

BTW folks I'm looking into switching my weblog to an OU server in the none-too-distant future, so look out for a url change for b2fxxx soon. We'd like to do some more active integration of blogs into some of our courses and it will make sense for my own blog to be in-house. It's time we started pushing some of the boundaries of what we can do with these kinds of technologies in an educational context again.

Merry Christmas to everyone. I'm off on a two week sabbatical for the festive season.

The Appeal Court in Norway has given Jon Johansen of DeCSS noteriety an early Chrismas present. There are a couple of factual errors in this BBC report in that Johansen did not actually create DeCSS and the MPAA did not bring the case against him, the Norwegian authorities did. But they get the aquittal right which I guess is the main thing. Trying to portray Johansen as a "serial hacker" is stretching things a bit but the MPAA are clearly disappointed at the outcome.

Creative Commons folk have had a party and a new animation to celebrate their first year in existence. (Warning the animation is pretty big, so unless you're on Broadband, it might be better to give it a skip, until they produce a smaller version).

The Dutch Supreme Court have just dismissed a case brought against the developers of Kazaa by the Dutch music copyright levy collection agency, BUMA. Kazaa creators cannot be held liable for the actions of their users.

It appears as though the Court's decision was procedural i.e. Kazaa won on a technicality. BUMA had wanted Kazaa changed in such a way that it would make copyright infringement using the program impossible but didn't file the correct legal documents in the correct way within the required deadlines. So the ruling is about procedures rather than directly about the liability of Kazaa for P2P file sharers actions. BUMA may try again.

Comment from the usual suspects imminent.

I'm buried in exam marking and a pre-Christmas admin. mountain, so won't be posting much. Some things of note going on, not least of which is the Canadian Copyright Board's decision to stick a levy on MP3 players and suggest P2P downloading is legal (although uploading copyrighted files is not).

Susan Crawford is all for the RIAA litigationagainst individual copyright infringers but she is puzzled:

"If all bicycle manufacturers said all bicycle purchasers have to buy a particular form of bicycle, and that no bicycle can be loaned to a friend, we'd be upset -- and some black-market bicycle makers would show up with cheaper goods that consumers liked. What's so special about songs? Why do they get such special treatment? It must be true that all law is becoming intellectual property law -- it's like the growth of Chinatown. It's taking over... We're left with shards of rights, compliant devices, and expensive tunes...

So: I'm all for the lawsuits, that's fine, but you can't build a marketplace through litigation. Just as you can't demand that you come from a happy family, and make that true by fiat, you can't create loyalty to a product or a service by suing some of your customers. "

A Chisnese court in southwestern province of Sichuan has allegedly sentenced a man to eight years in jail for writing on the Web about corruption amongst Sichuan officials.

The re-trial of Jon Johansen, who originally posted DeCSS on the Net, has ended with the prosecuters calling for a suspended jail sentence. The Appeal court is due to issue it's verdict in about ten days. Nice Chrismas present for somebody?

Michael Robertson will be less than pleased that a Swedish court has at least temporarily sided with Microsoft in their trademark claims against Lindows.

Robert Cringely on "Why the Current Touch Screen Voting Fiasco Was Pretty Much Inevitable" A taste:

"Voting is nothing more than gathering and validating data on a huge scale, which these days is almost entirely the province of IT. And like many other really big IT projects, this touch screen voting thing came about as a knee-jerk reaction to some earlier problem, in this case the 2000 Florida election with its hanging chads and controversial outcome. Punch card voting was too unreliable, it was decided, so we needed something more complex and expensive because the response to any IT problem is to spend more money making things more complex...

In the case of this voting fiasco, there was a wonderful confluence of events. There was a vague product requirement coming from an agency that doesn't really understand technology (the U.S. Congress), foisting a system on other government agencies that may not have asked for it. There was a relatively small time frame for development and a lot of money. Finally, the government did not allow for even the notion of failure. By 2004, darn it, we'd all have touch screen voting."

Spot on.

The Irish government have just published their proposed implementation of the EU directive on copyrights and related rights in the information society. Looks like a provision of existing Irish copyright law, Section 374 of the Copyright and Related Rights Act 2000, which explicitly allows the circumvention of "Rights protection measures" for fair dealing purposes is being replaced. So the construction of digital fences around existing access rights may now be premitted by law in Ireland. I have not reviewed the document in detail yet, so I'll need to have a proper look.

According to Groklaw, the judge in the SCO v IBM case has ordered SCO to disclose the specific code they claim IBM is infringing on. SCO had wanted IBM to turn over all their code so that SCO could pick through it to find infringements.

The Economist have a thoughtful article about the increasing market for biometrics, concluding,

"Spurred by the misplaced enthusiasm of governments around the world, biometrics seem headed for dramatic growth in the next few years. But calm, public discussion of their benefits and drawbacks has been lamentably lacking. Such discussion is necessary both to prevent the waste of public money in the short term—for the most part, the private sector has been wiser in its adoption of biometrics—but also to regulate what will eventually have the potential to become a powerful mechanism for social control."

I attended a really interesting seminar given by Oxford Balliol College Research Associate, Ms Tina Piper, last week on Tuesday December 2, 2003. Entitled 'The Unpatentability of Medical Diagnostic Methods: A Promise and Its Perils', it was one of the Oxford Intellectual Property Research Centre's Seminar Series. These are my notes on Ms Piper's fascinating talk.

Article 52.4 of the European Patent Convention excludes "medical methods" (of which "diagnostic methods" are a subset). This kind of exclusion is included in the patent law of 80 countries and the technical excuse for it tends to be that medical methods are not "capable of industrial application." This is a bit of a fudged construct but the law sometimes works like that.

The medical methods exclusion applies to the UK, Europe, Canada and New Zealand and there is a compromise on the exclusion in the US, which effectively gives medical practitioners immunity from being sued for patent infringement for using a patented technique. Medical methods are not excluded from patentability in Australia. "Diagnostic methods" are excluded in the UK and EU.

The US originally had an exclusion, then lost it and then partly regained it in the wake of the notorious Pallin v Singer case, when one eye surgeon sued another for patent infringement for performing a specific type of cataract operation. The Omnibus Appropriations act of 1996 made it possible for doctors to get patents on medical or surgical (but not "diagnostic") procedures but banned them from suing other doctors using the procedure in the course of their work. A congressional representative in 2002 introduced a bill called the Genomic Research and Diagnostic Accessibility Act but she has since been voted out of office and Ms Piper was unsure of the current status of her bill. This would have introduced patent infringement liability for diagnostic methods/tests.

The definitive UK case in the area for most of the 20th century was apparently a 1914 patent case (C and W's Application, Re (1914) 31 PRC 235, 36 Digest (Repl) 656, 104?). The UK Patent Act of 1977 suggested a definition for a diagnostic method - it must include all the steps in making a diagnosis (and it lists the steps). The Cygnus case challenged this definition saying the determining factors should be that the procedure is carried out by a skilled practitioner on or in the body i.e. it doesn't apply to samples taken from the body and tested in the laboratory.

There is supposed to be an overriding governing principle in this whole area, derived from the Baker Norton Pharmaceuticals case and guidelines from the European Patent Office, which states that:

Patents will not hamper doctors valuable life saving work.

Unfortunately in practice the principle is more represented in the breach than the observance. Ms Piper suggested there were a number of problems with the principle -

1. The exceptions from patentability of medical methods exist on paper but not in practice - judges and lawyers pretend the exception does not exist (In the Eli Lily case in 1976, the judge said that there was no logic to the idea of a medical methods exception and that it was based on ethics rather than logic).
2. There is little evidence of a principled approach in practice - drugs are patentable, diagnostics are not but the divide is artificial because diagnostics can take place in the lab rather than in the traditional face to face way. Skin tests applied to the body are not patentable yet the same test applied to a remote sample in a lab would be patentable.
3. There is little substantive protection of what are perceived to be healthcare goods - i.e. the exception covers very little in practice.
She then asked why should we care and provided some very succinct answers to her own question -

1. It is important to ask whether some technologies morally should or should not be patentable.

2. We are currently exporting our intellectual property laws to other countries through international treaties and trade agreements, so we should understand intimately the impact of these laws.

3. The state of the law may affect access to or cost of patented technologies and in the case of medical methods this is a public interest issue. An example is Myriad Genetics patent claim on the BRCA genes that can indicate a predisposition to develop breast cancer. Similarly in the case of the international outbreak of the SARS virus in 2003 there was a three way race to find and patent a causal gene sequence.

4. The state of the law will affect the type of technologies that will be affected, even if we only believe the inventive function of IP law. (If you add access to the knowledge base required to create those technologies there is a whole new dimension).

How did we get to where we are on medical methods patents? It turns out that it is all down to history.

In the mid 1800s medicine was a two tier profession. Wealthy upper class specialists and poor GPs. There was no standard training and anyone could set themselves up as a doctor. There were also lots of unsafe and useless medicines (like the carbolic smoke ball, the object an important contract law case Carlill v Carbolic Smoke Ball Company in 1893) and very little standardisation there either, in terms of treatment.

At that time 20% of all patents awarded were for medical treatments or medicines. The system was just a registration process, not the kind of examination and prior art process we have today. Anybody could register a patent and it was used as a marketing gimmick, a promotional badge supposedly giving the medicine the legitimate government stamp of approval.

Then the medical profession or elements therein decided to take control of the situation. How? They essentially created a parallel system to the patent system of the time, operating within a self-regulated medical profession. The self-regulation was effectively based on a set of ethical principles derived from the Hippocratic oath.

The profession:

1. Defined, facilitated and created a set of education standards that doctors who were to be registered had to meet. Basic training was standardised.
2. They encouraged collegiality and fraternity - in the spirit of the scientific method - medics shared their knowledge.
3. They got public support by creating a code of ethics which doctors were required to work to and opted out of the free market.
4. They gained state support and licensing and then self-regulation
5. They excluded regulations by other professions i.e. they booted out the lawyers

So they had created a parallel system to the patent system, (where lawyers and snake oil salesmen reigned), by replicating a number of functions of the patent system. Also medical inventions were evaluated on merit through peer review. (Now the peer review process has its own problems with hierarchy, convergence on the status quo, personality clashes etc. but we won't go into that as Ms Piper didn't). This new system meant that the incentive to invent was based on the acquisition of reputation. A fundamental aim was disclosure of new methods, products and processes - encouraged by the code of ethics and in the public interest, since it facilitated wider public access to effective treatments. There was also an indirect monetary effect in that the doctors with the best reputations were guaranteed a secure professional income.

Medicine was situated outside the market and until the 1920s and 1930s medics were completely against the patenting of medical methods because of this history. It was considered unclean for doctors to think about registering such patents - just not the done thing. In taking the profession outside the market, it also removed unseemly public legal disputes between doctors, such as the later (US) Pallin v Singer case, from the courts. Doctors don't like these kind of spats as they reflect badly on the whole profession. Even nowadays as we saw earlier Pallin v Singer led eventually to a change in US law. This was largely due to the general horror amongst powerful elements of the profession that a surgeon should be obliged to take three years of his life and run up $0.5 million in legal fees to defend his right to do his job using the best methods at his disposal.

One of the guiding principles was that patents should not hamper doctors pursuit of a decent income.

The original restrictions (late 1800s and early 1900s) imposed by this new medical profession governed regime required no patenting of substances, treatments or methods, though some patents on devices were allowed. And the rules were specifically enforced against doctors. The British Medical Association and the Medical Research Council enforced the rules.

There was some conflict and for example insulin and treatments for things like scarlet fever did get patented. The Association of British Medical Manufacturers also lobbied the BMA and MRC aggressively to open up the way to allow medical patents again. They justified their stance by saying that medical ethics insisted upon by the BMA et al were too strong and it was resulting in doctors being denied access to valuable rewards that would accrue from research. Doctors who wanted to take advantage of the patent system were being made to feel dirty about it.

The lobbying led to a series of developments in the law -
1. Dedication of medical patents to the MRC
2. Compulsory licensing, whereby patent holders were precluded from denying access to their innovations to but could derive some income from them
3. A medical methods exception to patents to avoid the Pallin v Singer type court case.

Effectively formal law was irrelevant to the reality of how medical patents were treated by the profession, the industry or the courts. When anyone wanted to change the law they formed a coalition and lobbied the BMA and the MRC. Ms Piper's (tongue-in-cheek) conclusion from all this was that, in reality, the lack of patents did not hinder doctors' access to a decent income.

What it did mean though was there was a lack of clarity and no logical conclusions as to what could be patentable in the area of medical methods.

What initial lessons is she drawing from her research to date?

1. Intellectual property law developed as the profession and the industry developed and evolved.
2. Intellectual property is about the interaction of legal and social norms. (We could add Lessig's architecture and market forces to that).
3. Intellectual property law can be and does get changed by well organised and resourced lobbyists.
4. When a law is widely ignored the whole legal system is undermined to a degree which can be dangerous.
5. We should recognise that the world has changed drastically and ask whether the appropriate balance in intellectual property has been maintained or whether it requires a re-alignment.

She finished with a question about how best to ensure access to medical methods and what role an exception for diagnostic or medical methods patents would play in that.

It seemed to me from the substance of Ms Piper's talk and her responses to the questions from the convened gathering afterwards, that she is very concerned about the public interest in all this. Basically, as in the US, well funded and organised self-interested groups can get together to change the law and the reality of medical methods patents but Jo Public does not get a seat at the table. (Interesting parallels here then with the situation in the US, where the relevant interest groups sit down, negotiate changes to the law, draft the new law and hand it to Congress for ratification. Jessica Litman, in Digital Copyright, describes this process with crystal clarity). Where indeed does the public interest get represented or, more importantly, factored in?

Perhaps it will be by making the general public more aware of the kind of work being done by the Tina Pipers of this world? Medical methods patents are a particularly stark illustration of the way in which intellectual property has serious impacts on ordinary people. We only have to look at the tragedy of AIDS in Africa and the lack of access to drugs with a track record of inhibiting the progress of the disease, to see this. If apathetic, disinterested Jo Public cannot be made to sit up and take notice of the life and death consequences of getting the balance right in intellectual property in this area, then it's never going to happen. My worry, however, is that it is just too emotive and attractive to the elements of the media interested in stoking up newspaper-selling public rows. The result is black and white sound bites from the extreme ends of the spectrum getting exposed and a complete lack of understanding of the real complexity of the issues we need to address to move forward.

Anita Ramasastry on Why we should fear the Matrix.

Larry Lessig is worked up about SCO's CEO, Darl McBride, insulting the constitution by claiming it supports his case against IBM and Linux.

California is about to criminalise the act of sneaking a video camera into a cinema.

In the wake of Jon Johansen posting some software to help get round Apple iTunes digital rights management, some previously happy customers are feeling a bit put out. Not that Johansen has created the foundations of a workaround (though there are folk being less than polite about that) but rather that they feel conned into buying into DRM.

Can't really blame Apple, who made it pretty clear the files were protected, though they did deliberately fudge the issue of first sale.

The WIPO director general told reporters in Geneva yesterday that "Piracy is like terrorism today and it exists everywhere and it is a very dangerous phenomenon... We would like to have consensus by all countries and all nations that piracy is a very dangerous phenomenon today"

This stuff is too important for this kind of claptrap, which really annoys me. People like Idris should be raising the level of the debate, not resorting to ridiculous soundbites. This adds absolutely nothing to the task of waking ordinary people up to the increasing importance of intellectual property laws - now a form of personal regulation not just industrial regulation of the creativity distribution industries, as used to be the case - explaining the complexities of the issues and addressing the problems of piracy and, more generally, balance in intellectual property laws.

After all, in a information society, intellectual property laws are the default rules of the road. Aaaaaargh - now they've got me using soundbites!

According to Computer Weekly, security flaws have been found in e-voting machines from the four major suppliers in the US.

The Irish Labour Party have issued a report outlining their concerns about electronic voting in Ireland and suggest that it may be a threat to democracy. They use a quote from the Gangs of New York at the beginning:

"The voters don't decide the election, the counters decide the election, so keep counting."

Highlights?

Although the individual components of the system have been tested, what the report calls an "integrated end to end test" of the entire system has not been carried out.

Promised cost savings in reducing staff for counting may be outweighed by increased numbers of people required to operate the voting machines.

The lack of appropriate procedures in the use of the system leaves it open to "interference from unauthorised persons".

And the report recommends that the electronic voting in Ireland be suspended until

1. A voter verifiable audit trail is available
2. A sensible set of operational procedures is in place
3. The whole system in fully integrated operational mode is tested and proved to be robust.

All seems pretty sensible really. Will it happen? Mmmm.

The Markle Foundation's Task Force on National Security in the Information Age has released a report saying that there has been a failure in the past to share information effectively amonsgt government agencies to combat terrorism. It also recommends more sharing of information between federal agencies and also use of private sector databases. They also directly criticise the Bush administration for not improving the sharing of information and federal agencies for sharing data on terrorism threats insecurely.

Fighting the worms of mass destruction - the Economist on computer security including comments from Lessig, Schneier and Greer.

The New York Times have caught up with the Diebold story.

The Markle Foundation's Task Force on National Security in the Information Age

Interesting that Jennie Levine, a librarian who started the Sugar Quill Harry Potter fan fiction site, with her friend, Megan Morrison, should have nearly the same name as the Shifted Librarian, Jenny Levine.

Larry Potter v Harry Potter? The Scholastic, Inc. v. Stouffer ended in September 2002 with a federal judge siding with J.K.Rowling and her publishers. Nancy Stouffer had been claiming that Rowling had infringed the copyright of Larry Potter books she had written in the 1980s.

The White House and Congress have reached a compromise about the FCC's new media ownership rules raising the limit to 39% market share.

"Army Quietly Opens JetBlue Probe" says the Wired headline explaining the US Army are looking into the recent JetBlue passenger data scandal. They've not been too successful in keeping it quiet if Wired has got hold of the story.

Looks like Diebold have agreed not to sue at least some of the people publicising their embarrassing internal memos online. The company's submission to the court to this effect is available online.

According to the Register, via Kevin Poulsen at SecurityFocus, the Nachi worm infected Diebold ATMs. Yes the same Diebold that make electronic voting machines. Diebold have a nice list of links to media stories that treat them favourably or at least gently. Some of these provide exemplary examples of the unfair tactics of persuasion that advocates use to persuade people of their point of view. Attacks on people who have criticised Diebold are prominent are is praise for those implementing or defending Diebold. Wonderful "we're the good guys, they're the bad guys" stuff. Pity.

"Reporters Without Borders today urged the Zimbabwean authorities to drop charges against 14 people who were arrested for circulating an e-mail message criticising President Mugabe's economic policies and calling for his departure. They were all released on bail but have been ordered to appear in court on 26 November."

The Australian music industry have decided to sue ISPs "who failed to stop consumers illegally downloading music."

Lawmeme point us to some links on the latest troubles for e-voting machines and some policy proposals over broad copyright claims; and finally one for US 4th amendment scholars on new dog sniffing technology.

Apparently John Johansen of DeCSS fame has released a program on his website called QTFairUse which demonstrates how to get round Apple's iTunes anti-copying technology. Given that he is facing re-trial next month on criminal charges related to the release of DeCSS, I'm not sure that's the best of tactics on his part.

Censored Dance-why Fair Use plus $3.25 will get you a nice latte. Elizabeth Rader razor sharp on how Carol Loeb Shloss’s new biography Lucia Joyce: To Dance in the Wake had to get re-written repeatedly due to intellectual property threats on the part of Stephen Joyce.

"Think of this story the next time someone tells you that fair use is the down parka that
will keep writers from being chilled by virtually limitless copyright terms and
ever-expanding copyright scope. As my mother told me when I wanted to walk out in
the street into moving traffic, “you may have the right of way, but it doesn’t do you
much good after you’re run over.”

Ernest Miller sees end to end as fundamental to a free society.

"The government shall neither create nor sustain a monopoly carrier in the distribution of speech that discriminates in what it will or will not carry.

Sounds suspiciously similar to the end-to-end principle, don't you think?"

Too right!

Eben Moglen, a professor of law at Columbia University Law School and the general counsel of the Free Software Foundation, has done an analysis of SCO's case against IBM on linux/unix and found it wanting.

Patents on human organisms are to be banned in the US according to the Washington Post.

Looks like Derek Slater is off the hook with Harvard for posting the Diebold memos on the web. He's just grateful he had John Slater on his side. Slater himself says,

"I wholeheartedly support Derek in his
assertion of a fair use defense in this matter
for three reasons. First, I think it is
inappropriate to use the copyright law, and
particularly the DMCA's (17 USC Section
512), as a means to stifle political speech of
this sort. Second, I think that every
university has a responsibility to factor in its
academic role, as well as its role as an
Internet Service Provider under certain United
States laws such as the DMCA, when forced
to take up a matter of this sort and when
determining how to respond when its students
are accused in this regrettable manner.
Finally, I am convinced that Derek has a
strong fair use defense and that he ought to be
supported in his assertion of that defense."

Congratulations to Siva Vaidhayanathan, whose latest book, The Anarchist in the Library, is now hitting the printing presses and will be available in the Spring of 2004. I highly recommend his earlier book, Copyrights and Copywrongs, which provides a lovely accessible story of the history of development of copyright law in the US. It was the first time I really appreciated how influential Mark Twain (aka Samuel Clemens) was in the process.

The Guardian actually include some mathematics in an article about ID cards here, to demonstrate reliability problems with biometric schemes. Nice overview and includes a discussion about the UK government's plans to share database information across government departments.

"Ian Brown, director of the Foundation for Information Policy Research, says that governments will find it hard to resist linking data, for example, to tackle obesity by monitoring attendance at leisure centres. "It gives government so many more ways of interfering in people's day-to-day lives," he says. "They say we're not building a big central database. But they don't need to." A series of linked databases will do the job just as well. "

Findlaw issue a reminder that the EU have decided to set up an Internet Security Agency.

Some Republicans are signing up to support the Voter Confidence and Increased Accessibility Act of 2003, which would make paper trails compulsory. They join about 70 Democrats currently support the bill. This, surely, has got to be a cross party issue? At least the Demoncrats and Republicans in Fairfax county seem to see it like that. The Republicans in that case were first off the starting blocks in initiating a complaint about irregularites in the electronic voting. Donna, as usual, has some really interesting material and links on the e-voting controversy and in particular the EFF and students case complaining about Diebold's use of the DMCA to quash online exposure of their embarrassing internal memos. Diebold are now claiming that even publishing parts of the memos constitutes copyright infringement. This is no-brainer territory for me as far as democracy is concerned but things are different in lawyerland.

A judge in Argentina has used the data protection laws as a basis for issuing what is believed to be the country's first injunction to stop a spammer sending unwanted emails.

Bruce Schneier includes an email from Ton van der Putte in his latest CRYPTO-GRAM, November 15, 2003. In September 2000 van der Putte and colleague Jeroen Keuning published a paper, Biometrical Fingerprint Recognition: Don't Get Your Fingers Burnt, on the drawbacks of biometric identification, specifically verification based on fingerprints.

Van der Putte and Keuning say is is now possible to make a dummy finger that will fool a fingerprint reader in 10 to 15 minutes, with materials available at most DIY stores. They also say:

"So it is our opinion, that as long as the manufacturers of fingerprint equipment do not solve the live detection problem (i.e. detect the difference between a live finger and a dummy), biometric fingerprint sensors should not be used in combination with identity cards, or in medium to high security applications. In fact, we even believe that identity cards with fingerprint biometrics are in fact weaker than cards without it. The following two examples may illustrate this statement.

1. Suppose, because of the fingerprint check, there is no longer visual identification by an official or a controller. When the fingerprint matches with the template in the card then access is granted if it is a valid card (not on the blacklist). In that case someone who's own card is on the blacklist, can buy a valid identity card with matching dummy fingerprint (only 15 minutes work) and still get access without anyone noticing this.

2. Another example: Suppose there still is visual identification and only in case of doubt--the look-alike problem with identity cards--the fingerprint will be checked. When the photo on the identity card and
the person do not really match and the official asks for fingerprint verification, most likely the positive result of the fingerprint scan will prevail. That is, the "OK" from the technical fingerprint system will remove any (legitimate) doubt.

It is our opinion that especially the combination of identity cards and biometric fingerprint sensors results in risks of which not many people are aware."

Can somebody please draw this to the attention of our own Home Secretary, who apparently threatened to resign if he didn't get his own way on the national identity card. Just keep repeating the soundbite - biometrics may be unique but they are not secret.

Andrew Cringely is worried about identity theft because his mail was stolen when he was away recently. He's right to be worried.

Preparations for the World Summit on the Information Society in Geneva in December are not running too smoothly, according to a Reuters report in Forbes magazine.

"Developed and developing nations
were wide apart on Saturday on
managing the Internet and closing
the digital divide between rich and
poor at the end of what was meant
as a final meeting before a world
summit."

The latest version of the draft declaration of principles for the summit is available on the web.

From Dan Gilmore, "Via Greg Aharonian's Internet Patent News Service comes the news that AT&T has received this patent for -- I kid you not -- a way to defeat anti-spam measures:

"A system and method for circumventing schemes that use duplication detection to
detect and block unsolicited e-mail (spam.) An address on a list is assigned to one
of m sublists, where m is an integer that is greater than one. A set of m different
messages are created. A different message from the set of m different messages is
sent to the addresses on each sublist. In this way, spam countermeasures based
upon duplicate detection schemes are foiled."

Right. And the other thing being foiled is Internet users' desire to be free of the spam plague. AT&T
should be ashamed of itself."

Derek Slater is feeling a little cynical about the ART act I mentioned yesterday.

The copyright wars are progressing as proponents of expansion introduce a new bill to the Senate in the US.

The "Artists' Rights and Theft Prevention Act" proposes jailing p2p file sharers for three years for having a single copyright infringing file on their computer. Also someone would get jailed for five years for using a camcorder in a cinema.

"In addition to the prison term, the Artists' Rights and Theft Prevention Act would punish making such movies available on a public "computer network" as a federal felony with a fine of up to $250,000. It would not require that any copyright infringement actually take place...

Peter Jaszi, a professor at American University who teaches copyright law, said he is "deeply troubled" by the wording of the draft legislation, because it does not say any actual copyright infringement must take place--only that the file be available in a shared folder, Web site or FTP (File Transfer Protocol) site. "It says we don't care if anybody got any of these copies," Jaszi said. "We're going to conclude that at least 10 people did. It relieves the copyright owner of having to prove that any violation
of their rights actually happened.""

I predict a round of vigorous public debate between the usual protagonists in the US. I can't really see "ART" getting too far off the ground.

Altnet says P2P spies violate patent rights. P2P fighting back?

Some of the big media organisations are picking up the story on electronic voting problems in the US.

Patent office to re-examine Eolas patent. That could have an impact on the $520 million award against Microsoft.

On the other side of the government's IT fence, they have now launched a new UK Central Government Web Archive. Good for them.

Nick Cohen produced his usual diatribe against the government at the weekend. Just conveniently, this time it was on the subject of ID cards.

I heard the UK home secretary, David Blunkett, speaking about ID cards on BBC Radio 4 yesterday morning. He said biometric ID cards made identity theft "impossible." This is false.

Biometrics can be an authentication mechanism - something I have that demonstrates I am who I say am e.g. a fingerprint, iris scan or my dna. Biometrics won't be forgotten (which gives them an advantage over passwords) but they can be lost - that iris scan or fingerprint is no good if the eye or finger gets badly damaged in an accident.

Somebody should also tell Mr Blunkett, that although biometrics may be unique they are not secret. We leave fingerprints and bits of dead skin all over the place for example. What he also seems to forget is the database containing all the details of this biometric information need to be secure and accurate. If somebody steals your biometric e.g a fingerprint from a coffee mug or by copying or changing the database with the biometric details...

Just don't be kidded into thinking identity theft is "impossible" with biometric systems.

James Grimmelmann at Lawmeme tells us "McDonald's is upset about the appearance of "McJob" in the Merriam-Webster's Collegiate Dictionary."

Some of my students have just been marveling at the Mike Batt dispute with the late John Cage's estate over copyright on silence. Cage once composed a piece comprised entirely of 4 minutes and 33 seconds of silence. Batt included a minute's silence in a CD and Cage's estate sued for copyright infringement. I understand that Batt's mother asked him if he knew which part of the silence they were claiming he infringed.

One of the comments on the McDonalds complaint is supportive of the fast food retailer because the dictionary is diluting their trademark.

Looked at by ordinary people these disputes look completely daft. But experts live in a different world to the rest of us when dealing with their narrow professional specialist area. There is an internal logic to the developments within the particular field e.g. in this case intellectual property. But is does not create a good impression for those looking on from outside the expert priesthood.

Copyright and intellectual property more generally are an amazing construct, enabling authors and creators to benefit from their creative endeavors. But the intellectual property specialists do little service to the promotion of the general understanding of their field by engaging in spats like those mentioned above.

And given the likely impact of the rules on intellectual property on the future of the information society, that does no one any favours. The intellectual property priesthood need more translators explaining their subject area in ways ordinary people can understand. That will facilitate informed public debate on developments in an area that is going to affect all of us whether we understand it or not.

Declan McCullagh's piece on the FCC's introduction of the broadcast flag, "Are PCs next in Hollywood piracy battle?", has been published by the New York Times.

"What FCC officials did not stress, but their regulations do, is that the product definitions are broad enough to cover not just TV
tuners but also PCs. "This necessarily includes PC and (information technology) products that are used for off-air DTV (digital
television) reception," the FCC's order says...

Will Rodger, director of public policy at the Computer and Communications Industry Association (CCIA), said the rule is
troubling because it means the FCC is encroaching on a technological sector that has flourished in the absence of regulation."

As Ernest Miller said earlier in the week,

"Prof. Ed Felten makes a good point on Freedom to Tinker about the FCC's justifications for the Broadcast Flag - they are incoherent (The Broadcast Flag, and Threat Model Confusion). The justifications for the broadcast flag and the effect of the broadcast flag are tangentially related at best. In the words of the FCC, "the broadcast flag seeks only to prevent mass distribution over the Internet." Additionally, according to the FCC, "consumers’ ability to make digital copies will not be affected."

Whether or not you agree with the justifications is not the question. The issue is whether the means the FCC has chosen are suited to the justifications. As Felten points out, they are not. The action the FCC has taken will not significantly, if at all, "prevent mass distribution over the Internet." It will, however, impede the average consumer's ability to make copies for friends and family.

A New Zealand anti war activist has apparently been charged with mis-using the phone under the Telecommunications Act for sending an email to the US embassy protesting the war in Iraq.

"Mr Hubbard last night said he had been charged under the Telecommunications Act and had been told by police they would seize information from his computer under the Counter-Terrorism Act."

I doubt this story is as simple as this report makes it appear.

For T182 students familiar with the Diebold electronic voting machine controversy, Ernest Miller engages in a timely discussion of bias in online sources, just as we've started looking at the issue in the course.

Someone is criticising Mary Hodder at bIPlog at the University of Berkeley, California, for her short note about the EFF and Stanford suing Diebold.

Miller, JD Lasica of the Online Journalism Review and Mary Hodder herself mount a robust defense of the posting.

Which of the following tactics do you think the complainant engages in -

appealing to emotion and prejudice;

extrapolating opposition argument to the absurd and then refuting the absurd;

using sarcasm, innuendo, denigration and other forms of humour to belittle opponents;

grouping all opponents under one label, a category easy to dismiss;

using jargon to confuse;

non sequitur - drawing an illogical conclusion from sound data.

(There are, of course many more but let's stick with these for the moment).

He does make a couple of interesting points:

1. Although the case was fast-tracked the judge refused to issue an injunction preventing Diebold from continuing to send out their cease and desist letters until the hearing.

2. A question - do rules of "fairness and accuracy" apply in the "blogosphere" - are blogs more or less reliable sources than traditional media?

Hodder, Lasica and Miller all have comments on the latter.

It seems that some Penn State University students are about as impressed as Derek Slater when it comes to the deal with Napster.

The World Intellectual Property Organization have agreed to develop a draft treaty on webcasting by April 2004, based on a proposal put forward by the US.

"Jamie Love, who works for the Ralph Nader-affiliated Consumer Project on Technology, says the treaty is worrisome because it creates an additional legal protection for works in the public domain that are Webcast...

Seth Greenstein, a partner at law firm McDermott Will & Emery who represents the Digital Media Association, said the treaty is necessary to protect the rights of Webcasters in WIPO nations that do not have copyright laws as extensive as those in the United States...

He acknowledged Love's concern about the sweep of the treaty, but said such restrictions were necessary to protect the economic investment of Webcasters."

According to the Legal Media Group, Microsoft are looking to do an IBM with their intellectual property assests and have hired the former IBM IP guru, Marshall Phelps to do it for them. IBM derive a large income from licensing their vast portfolio of patents. Microsoft have about 3000 patents in total but IBM file more patent applications than that in an average year. With Phelps at the helm, Microsoft now have over 5000 patent applications sitting to be reviewed in the US Patent Office. Phelps has this to say about software patents,

"I think there's a fundamental lack of understanding [in Europe] that there isn't a real difference between software and hardware. I also think there are large political forces driving this issue... Some on either side approach these issues with an almost religious fervour... Also, I can give you all kinds of software implementations that used to be in hardware. Apart from the plug in the wall, anything you used to do in hardware you can do in software. Just think about the media player that exits when you boot up your software on your machine. It looks just like any other media player - it's got fast forward and stop and pause and all that stuff. That's software. Is there a hardware version of that? Sure, any DVD player you want to go and buy. Or if you look at some laptops, there's a little button in the middle which is basically the mouse. You think that moves, but it doesn't. It's really a strain gauge that calculates where you want the cursor to go by how hard you push it and in what direction. How does it do that? Well, there's an algorithm for an x-axis and an algorithm for the y-axis - that's software. Is there a hardware implementation for that? Sure, every mouse that's practically ever been built is a hardware implementation of that.

I think people react to software as if it's an animal from another planet, and I don't think that, at the end of the day, the distinction [between software and hardware] is a very useful one."

It's an attractive argument. Why shouldn't a new invention, which involves and inventive step and has practical technical effect and is useful be patentable, even if it is purely software? A reasonable suggestion cutting through the usual religious fervour. As long as the law can be precisely couched in such a way as to avoid patenting something which involves no invention, no inventive step and is a pure software implementation of an obvious idea?

Derek Slater is getting irritated at what he calls "crummy reporting" on the P2P front. The latest piece he is annoyed about claims that Penn State University have done a deal with the new Napster service,owned by Roxio, to provide "free" music to students.

"Yes, Roxio and the RIAA are providing this service all out of the goodness of their hearts. And Penn State will not be charging their students directly or indirectly for the service. As I've said before, this is one heck of a spin machine."

Here's a criminal waste of space and a funny judge, Mr Justice William W. Bedsworth.

Apparently Cryptome's John Young has had a visit from the FBI. Somebody had reported Cryptome as a source of information that might be harmful to the US.

I sympathise with the FBI special agents, who in the post September 11th world probably had little choice but to follow up the complaint. But they're really on a hiding to nothing visiting civil liberties campaigners, who will, understandibly publicise the visit. So the agents are getting distracted by wild goose chases when they would undoubtedly themselves prefer to be getting on with effective appropriately targetted law enforcement. Limited law enforcement capacity gets stretched thinner and thinner and the real bad guys laugh all the way home from their undetected crimes, comfortable in the belief that the chances of getting caught are on an ever diminishing curve.

The Washington Post is reporting that there have been problems with new electronic voting machines at the election at Fairfax County in Virginia this week. 9 machines were removed from the voting station during the day for repair. Apparently this is against the law so the Republicans are suing. Never mind. They only spent $3.5 million on the machines.

It seems that the intellectual property enforcement directive rapporteur, Janelly Fourtou, is prepared to compromise slightly, now that even Arlene McCarthy (rapporteur of the software patents directive) thinks that article 20 covering criminal sanctions is way over the top. You can see the text of the amendments she's prepared to accept at the europarl website. Fourtou, however, remains keener than ever to ensure the directive gets implemented before the next euro elections in the summer of 2004. She seems to see the sacrifice of article 20 as a quid pro quo to get the implementation procedures on the fasttrack route.

The EFF and The Stanford Center for Internet and Society are suing Diebold for abuse of copyright over their recent cease and desist letters to people linking to online copies of their internal memos.

For T182 students looking in for the first time, Diebold are one of the three largest suppliers of electronic voting machines in the US. There has been some controversy recently about whether these machines do the job as well as they should. I have written about it periodically here but if you're interested in looking at the issue in more detail (when you have finished T182) some people who know a lot about the issues are David Dill at Stanford, Rebecca Mecuri at Bryn Mawr, Aviel D. Rubin at Johns Hopkins University and Bev Harris, author of the soon to be published book Black Box Voting: Ballot Tampering In The 21st Century.

Wal-Mart and the US Department of Defense are driving forward the wide spread implementation of RFID tags. That won't be news to regular readers.

Here's a report on a patent ruling that could throw a spanner in the works of trying to get legitimate music downloading operations in place.

"If a jury decides that SightSound has a right to enforce the patents, it could affect almost any business that sells downloadable music or video online, including the major record labels and music studios. This is increasingly important, as a number of download services emerge to offer people a legal way obtain video and music content online. "

The FCC have mandated the broadcast flag. The FCC Chairman Michael Powell's statement on the issue is here. All 5 commissioners supported the decision though two disagreed with parts of the decision.

Jack Valenti and Rupert Murdoch will be pleased. Lots of other people are not.

It seems the IPC cease and desist letter to the Guardian's director of digital publishing, Simon Waldman, over photos of Hitler in a 1938 Homes and Garden magazine was invalid. They did not own the copyright on the photos that Waldman posted on his weblog.

IPC "conceded that "after
extensive research ... there is no way of ascertaining where
copyright ownership lies after 65 years. Therefore, it is not in our
gift to either agree or withdraw use of these images and words."

For me, this prompted a mix of victory and fury. Yes, I could put
the scans back up on my site, but it was clear that they simply
hadn't made any detailed checks on copyright when I first
contacted them, and had hoped it would all go away with a
single stern email. Fortunately for me, in this internet age, such
clumsy tactics don't work. Their attempt to squash the problem
had simply amplified it."

Wired is reporting that the Aussies are doing it right with e-voting. "They chose to make the software running their system completely open to public scrutiny."

In the wake of their courtroom success in claiming infringement of their streaming patent by the porn industry, Acacia have now decided to go after higher education institutions.

"Acacia has sent Virginia and other colleges a letter making an audacious claim: that the company owns long-forgotten patents covering the use of sound and video on the Web and is entitled to 2 percent of the revenue from courses that use such technology. The patents, which expire in
2011, cover the concept behind storing and transmitting sound and video, not the technical details."

This doesn't surprise me but I'm none the less angry.

Here's a fun test of your political leanings. Apparently I lie somewhere between Nelson Mandela, the Dali Lama, Mahatma Gandhi and Jean Chretien as a slightly left leaning liberal. My friends will be amused and it could have been worse, I suppose. As long as nobody takes it too seriously...

Michael Froomkin is really concerned about the state of civil liberties in the US.

"A secret trial. A SECRET TRIAL. In the US. IN THE USA. Ok. Ok. I refuse to panic until the Supreme Court approves this. That means I have a few weeks at least.

If you had asked me two years ago, I would have said that secret trials were impossible in the USA...

The idea that the government would attempt to hold entire secret star chamber-like trials, closed to the public, trials whose very existence was a secret, is repugnant to this nations’s traditions and fundamental values. And if history teaches us anything about abuses of power, it is that secret trials are dangerous...

The government’s — successful! — attempt to inaugurate a regime of secret trials and secret detentions is a really lousy signal about the state of panic among our ruling class — and about the brittle state of our liberties. What really boggles the mind is that two courts have allowed this to happen — now only the Supreme Court stands between us and a country with secret trials into which suspects (recall - they’re innocent until proven guilty!) just vanish into the system.

Before you say ‘terrorism is different’ or ‘we’re at war now’, note that the government says they want to use this tactic in drug cases too. Worry. Really worry about this one. We’re one step closer to the day when this might not be a joke.

And in fact, the subject of this secret trial isn’t some super-ninja terrorist from beyond the deep. He’s an Algerian waiter. And he is obviously not that dangerous, since he’s been out on a $10,000 bond since March 2002."

What's got Prof Froomkin so worked up is this report in the Christian Science Monitor on the "Secret 9/11 case."

(Thanks to Eugene Volokh at the Volokh Conspiracy for the pointer to this).

Mark Cooper, Director of Research of the Consumer Federation of America and affiliated to the Center for Internet and Society at Stanford, has published a new book, Media Ownership and Democracy in the Digital Information Age. The book can be purchased in the conventional way or it can be downloaded for free under a Creative Commons Attribution-NonCommercial-ShareAlike license. A weighty tome and at 313 pages there won't be too many people reading it off the screen.

The LA Times says the new MIT music file swapping service has run into a few licensing problems. Loudeye Corp. the company supplying the service with songs didn't have the right to do so for the kind of service MIT were setting up. MIT blame the company. The company blame MIT. MIT have removed Vivendi Universal's songs and are negoitating separately with the music giant.

Siva Vaidhyanathan reports that Fox News threatened to sue Fox Entertainment because of a Simpsons parody. You can just see Rupert Murdoch gently pointing out to his underlings that he is not too keen on the idea of suing himself.

Here's an amusing barbed commentary from Ed Foster on the Diebold memos. He starts with his amended version of the first amendment:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of the speech, or of the press ... except as needed to allow trademark and copyright holders complete power to control discussions about their brands."

In response to the UK Office for National Statistics consultation exercise on "Modernising Civil Registration" FIPR has called on the government to ensure that a new electronic database of life events -- births, marriages, deaths etc. -- supports rather than reduces privacy and liberty. All very sensible as you would expect from FIPR.

Declan McCullagh tells us that the US Copyright Office have offered qualified support to Static Control in their ongoing DMCA dispute with Lexmark. Lexmark have successfully sued and got an injunction against Static Control to prevent them supplying cheaper refill cartridges for Lexmark printers. The cheaper refills apparently bypassed copy control technology built into the Lexmark versions. A good example of an OEM cornering the market in spares by building in digital fences and throwing their weight around on the anti-circumvention provisions of the DMCA - and not what the law was intended to be used for. The law already says you can bypass copy control/access measures "for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability." That is a less well known provision of the DMCA.

It remains to be seen how this opinion from the copyright office will affect the case. There are other substantive issues such as Static Control's alleged direct copyright infringement of Lexmark programs that may still swing the case Lexmark's way at the appeal.

PS Don't miss this Wired article on Brewster Kahle, Amazon's new search engine and "The fondest dream of the information age ... to create an archive of all knowledge."

I'm in a rush today but just wanted to draw your attention to this, which at first glance looks like a possible step in the right direction to getting a resolution to the file sharing issue.

A couple of MIT students have come up with a new system which taps into the MIT campus licensed cable TV network. The files are analogue not digital, which means the sound quality resides somewhere between a radio broadcast and a CD.

It means that the students get access to a big library of music and the copyright holders get paid a license fee. Sounds a better for the RIAA than a bunch of expensive lawsuits and PR disasters about suing 12 year olds and grannies.

James Grimmelmann, like Edward Felten yesterday, asks "Where will the madness end?"

"Here's a link to a site that links to a site that links to a site that links to a site that links to a site with the memos. Whoops, that's the Diebold home page. "

Beautiful.

The Authors Guild are concerned about Amazon.com's new search tool.