I mentioned yesterday that Apple were considering suing RealNetworks under the DMCA for creating 'Harmony' which facilitates interoperability with the iPod, allowing iPod owners to buy songs from a Real music retailer. It turns out that James Boyle had an article in the FT yesterday about the dispute. And as usual James cut right to the heart of the issue with a terrific analysis.
"You could tell it was a bizarre feud by the statement Apple issued, one strangely at odds with the Palo Alto Zen-chic the company normally projects. “We are stunned that RealNetworks has adopted the tactics and ethics of a hacker to break into the iPod, and we are investigating the implications of their actions under the DMCA [Digital Millennium Copyright Act] and other laws.” What vile thing had RealNetworks done? They had developed a program called Harmony that would allow iPod owners to buy songs from Real’s Music Store and play them on their own iPods. That’s it. So why all the outrage? It turns out that this little controversy has a lot to teach us about the new economy...
...The first lesson of the story is how strangely people use the metaphors of tangible property in new economy disputes. How exactly had Real “broken into” the iPod? It hadn’t broken into my iPod, which is after all my iPod. If I want to use Real’s service to download music to my own device, where’s the breaking and entering? What Real had done was make the iPod “interoperable” with another format...
... Their true sin was trying to understand the iPod so that they could make it do things that Apple did not want it to do. As an ethical matter, is figuring out how things work, in order to compete with the original manufacturers, breaking and entering? In the strange netherland between hardware and software, device and product, the answer is often a morally heartfelt “yes!” I would stress “morally heartfelt”. It is true manufacturers want to make lots of money, and would rather not have competitors. Bob Young of Red Hat claims “every business person wakes up in the morning and says ‘how can I become a monopolist?!’” Beyond that, though, innovators actually come to believe that they have the moral right to control the uses of their goods after they are sold. This isn’t your iPod, it’s Apple’s iPod. Yet even if they believe this, we don’t have to agree.
In the material world, when a razor manufacturer claims that a generic razor blade maker is “stealing my customers” by making compatible blades, we simply laugh. The “hacking” there consists of looking at the razor and manufacturing a blade that will fit. But when information about compatibility is inscribed in binary code and silicon circuits, rather than the moulded plastic of a razor cartridge, our moral intuitions are a little less confident. And all kinds of bad policy can flourish in that area of moral uncertainty...
... second new economy lesson. In a competitive market, Apple would choose whether to make the iPod an open platform, able to work with everyone’s music service, or to try to keep it closed...
... If they attempted to keep it closed, competitors would try to make compatible products, acting like the manufacturers of generic razor blades, or printer cartridges. The war would be fought out on the hardware (and software) level, with the manufacturer of the platform constantly seeking to make the competing products incompatible, to badmouth their quality, and to use “fear, uncertainty and doubt” to stop consumers switching...
... If the consumers got irritated enough they could give up their sunk costs, and switch to another product altogether All of this seems fine, even if it represents the kind of socially wasteful arms race that led critics of capitalism to prophesy its inevitable doom. Competition is good, and competition will often require interoperability.
But thanks to some rules passed to protect digital “content” (such as copyrighted songs and software) the constant arms race over interoperability now has a new legal dimension. The Digital Millennium Copyright Act and equivalent laws worldwide were supposed to allow copyright owners to protect their content with state-backed digital fences that it would be illegal to cut. They were not supposed to make interoperability illegal, still less to give device manufacturers a monopoly over tied products, but that is exactly how they are being used."
Friday, August 13, 2004
The ACLU have issued a report stating that the US government are circumventing the checks and balances on surveillance operations by increasingly using private corporations to gather the information for them. Private companies are not subject to the same restrictions on the gathering of personal information and people trust them more than they trust the government, so are more willing to unquestioningly hand over personal details.
"The Privatization of Surveillance
The U.S. security establishment is rapidly increasing its ability to monitor average Americans by hiring or compelling private-sector corporations to provide billions of customer records. The explosive growth in surveillance by government and business is creating a "Surveillance Industrial Complex" that threatens all of our privacy."
Wired have an article covering the report.
"The Privatization of Surveillance
The U.S. security establishment is rapidly increasing its ability to monitor average Americans by hiring or compelling private-sector corporations to provide billions of customer records. The explosive growth in surveillance by government and business is creating a "Surveillance Industrial Complex" that threatens all of our privacy."
Wired have an article covering the report.
Thursday, August 12, 2004
From the Home Affairs select committee report on the UK government's proposed natioal identity card scheme:
"The proposed system is unprecedentedly large and complex. It will contain sensitive personal information on tens of millions of individuals. Any failure will significantly affect the functioning of public and private services and personal and national security. Measures to ensure the integrity of the design, implementation and operation of the system must be built in to every aspect of its development. As we will remark at a number of points throughout this report, the Government's lack of clarity about the scope and practical operation of the scheme, and the nature of the procurement process, does not give us confidence that this will be achieved."
"The proposed system is unprecedentedly large and complex. It will contain sensitive personal information on tens of millions of individuals. Any failure will significantly affect the functioning of public and private services and personal and national security. Measures to ensure the integrity of the design, implementation and operation of the system must be built in to every aspect of its development. As we will remark at a number of points throughout this report, the Government's lack of clarity about the scope and practical operation of the scheme, and the nature of the procurement process, does not give us confidence that this will be achieved."
Some interesting comments on electronic voting over at Politech.
"
It is important to differentiate between "electronic voting", which has immense promise to make voting more accessible to many people, as well as improving the efficiency and accuracy of the voting process, and "Direct-Recording Electronic" voting systems, a type of electronic voting system that record votes _only_ electronically, with no human verified physical record, which raise many concerns, and have had numerous operational problems in actual use, leading to (for example) decertification of DRE's in California.
It's critical to be aware that there are many electronic voting systems that provide all of the benefits that the LCCR cares about (prevention of overvotes, reduction of undervotes, spoken prompts for hearing or reading impaired voters, support for multi-lingual ballots, voters like touchscreen voting), but that are not DRE's."
"
It is important to differentiate between "electronic voting", which has immense promise to make voting more accessible to many people, as well as improving the efficiency and accuracy of the voting process, and "Direct-Recording Electronic" voting systems, a type of electronic voting system that record votes _only_ electronically, with no human verified physical record, which raise many concerns, and have had numerous operational problems in actual use, leading to (for example) decertification of DRE's in California.
It's critical to be aware that there are many electronic voting systems that provide all of the benefits that the LCCR cares about (prevention of overvotes, reduction of undervotes, spoken prompts for hearing or reading impaired voters, support for multi-lingual ballots, voters like touchscreen voting), but that are not DRE's."
"All children to go on ‘big brother’ computer" reads a Sunday Times headline from 25 July. The national ID card by the back door in one generation.
Microsoft have agreed to pay Lindows $20million to change its name to Linspire. Can't see Michael Robertson and Bill Gates walking off into the sunset as bosom buddies though.
BT say their new Net filtering system is blocking 23000 attempts per day on average to access child pornography. Meanwhile the prime minister has invited ISPs to one of his summits to encourage them to follow BT's line.
The EU competition authorities have approved the merger between Sony and Bertelsmann's music businesses.
A UK company is suing Apple and Microsoft for patent infringement.
James Grimmelmann has a nice take on yet another Simpsons copyright story.
There is a new UK anticircumvention decision to follow Sony v Owen. It's called Kabushiki Kaisha Sony Computer Entertainment Inc. (Also Trading As Sony Computer Entertainment Inc.) v Ball et al. Since Sony v Owen happened before the implentation of the EU copyright directive of 2001, I'm assuming this latest case is now the definitive one, though I haven't yet had the time to puruse the decision in detail.
"The defendants are involved in the design, manufacture, sale and installation of an electronic chip, called Messiah 2. It can be fitted into a PS2 console and works so as to trick the console into believing that the CD or DVD being played has the necessary embedded codes. By this means, the modified PS2 console can be made to play not only authentic PS2 games designed for the geographical area for which the console was intended, but also unauthorised copies and also games from either of the two regions which are "foreign" to the console."
The decision deals (paras 19 to 26) with a possible loophole for exporters of the Messiah 2 mod chips prior to the the implementation of the EUCD but clearly finds in favour of Sony.
Senator Hatch will be falling further out of favour with Larry Lessig with his call for the banning of p2p networks in a Senate hearing on the proposed INDUCE act.
There's an interesting paper in the May 2004 issue of THE YALE LAW JOURNAL, according to Lawmeme. Extract from the abstract:
"The struggle to define the role of the legislature in the modern administrative state has been central to constitutional politics in Western countries. That struggle was especially intense in Germany and France from the 1920s to the 1950s. Contrary to claims of certain interwar theorists, like Carl Schmitt, the apparent demise of the legislature was not the consequence of an "insurmountable" opposition between parliamentary democracy and the demands of executive power in an era of administrative governance.
Rather, for both Germany and France, the constitutional flaw was traceable to a basic tenet of traditional republicanism inherited from the nineteenth century. This view held that a republican parliament, as the privileged institutional expression of national sovereignty, necessarily possessed plenary authority to allocate power among the branches as it alone deemed expedient in the circumstances. In the interwar period, the German and French parliaments repeatedly relied on this notion to cede full powers to the executive, a practice that ultimately provided the legal foundation for dictatorship.
After 1945, the drafters of the West German and French postwar constitutions gleaned two lessons from the interwar experience: first, that there had to be a substantive "reserve" of governing authority that a republican parliament could not delegate; and second, that an independent body had to have power to enforce those delegation constraints against the parliament itself. Although such constraints ran contrary to older conceptions of parliamentary supremacy in a republican form of government, the drafters concluded that they were necessary to ensure the place of the parliament in a democratic system of separation of powers. "
Extremely pertinent in the light of recent battles in the UK between the House of Lords and the the government over constituional reform.
"The struggle to define the role of the legislature in the modern administrative state has been central to constitutional politics in Western countries. That struggle was especially intense in Germany and France from the 1920s to the 1950s. Contrary to claims of certain interwar theorists, like Carl Schmitt, the apparent demise of the legislature was not the consequence of an "insurmountable" opposition between parliamentary democracy and the demands of executive power in an era of administrative governance.
Rather, for both Germany and France, the constitutional flaw was traceable to a basic tenet of traditional republicanism inherited from the nineteenth century. This view held that a republican parliament, as the privileged institutional expression of national sovereignty, necessarily possessed plenary authority to allocate power among the branches as it alone deemed expedient in the circumstances. In the interwar period, the German and French parliaments repeatedly relied on this notion to cede full powers to the executive, a practice that ultimately provided the legal foundation for dictatorship.
After 1945, the drafters of the West German and French postwar constitutions gleaned two lessons from the interwar experience: first, that there had to be a substantive "reserve" of governing authority that a republican parliament could not delegate; and second, that an independent body had to have power to enforce those delegation constraints against the parliament itself. Although such constraints ran contrary to older conceptions of parliamentary supremacy in a republican form of government, the drafters concluded that they were necessary to ensure the place of the parliament in a democratic system of separation of powers. "
Extremely pertinent in the light of recent battles in the UK between the House of Lords and the the government over constituional reform.
Friday, July 16, 2004
The Practical Nomad, Edward Hasbrouck, is skeptical about the apparent cancellation of the US CAPPS II airline passenger profiling system.
The European commission have written to the UK government about their concerns that UK data protection legislation may not be in comlpiance with the EU data protection directive of 1995, especially in the light of the recent Durrant v Financial Services Authority case.
"OUT-LAW understands that the failure of the UK Government to guarantee the right of access to personal data is likely to be a strong feature of the letter. Other concerns appear to include insufficient controls on international transfers of data and a lack of investigative powers given to the Commissioner."
There is a hint of irony about this letter coming at the same time as Tom Ridge confirming the killing off of CAPPS II.
"OUT-LAW understands that the failure of the UK Government to guarantee the right of access to personal data is likely to be a strong feature of the letter. Other concerns appear to include insufficient controls on international transfers of data and a lack of investigative powers given to the Commissioner."
There is a hint of irony about this letter coming at the same time as Tom Ridge confirming the killing off of CAPPS II.
According to Tom Ridge, head of US Homeland Security, the airline passenger profiling system is now dead. I wonder if that will give the EU bureaucrats food for thought on their agreement to hand over EU passenger data to the US for CAPPS II?
Thursday, July 15, 2004
Wired is reporting that the demand for e-voting paper trails is escalating in the US.
Lawmeme have produced an index to Ernest Miller's writings on the INDUCE (Inducing Infringement of Copyrights) Act.
"His coverage matters to lawyers, techies, copyfighters, and consumers. That is, everyone. Ignore it at your peril. The IICA is one of the most dangerously misguided and malicious pieces of technology legislation to rear its ugly head in the last decade. Ernie's obsessively detailed articles are a powerful indictment of a bad idea. "
Lawmeme have produced an index to Ernest Miller's writings on the INDUCE (Inducing Infringement of Copyrights) Act.
"His coverage matters to lawyers, techies, copyfighters, and consumers. That is, everyone. Ignore it at your peril. The IICA is one of the most dangerously misguided and malicious pieces of technology legislation to rear its ugly head in the last decade. Ernie's obsessively detailed articles are a powerful indictment of a bad idea. "
Monday, July 12, 2004
The DMCA has been used, Lexmark fashion, to secure a preliminary injunction "against a third party service vendor who tried to fix StorageTek tape library backup systems for legitimate purchasers of the system." Further evidence of unintended effect of killing after sales spares/service competition.
The NYT had a feature over the weekend about a film producer who is making a documentary critical of Fox News and the potential copyright issues he might run into when using the company's news clips. The film is called "Outfoxed: Rupert Murdoch's War on Journalism"
" The film is an obsessively researched expose of the ways in which Fox News, as Greenwald sees it, distorts its coverage to serve the conservative political agenda of its owner, the media tycoon Rupert Murdoch. It features interviews with former Fox employees, leaked policy memos written by Fox executives and extensive footage from Fox News, which Greenwald is using without the network's permission."
The NYT had a feature over the weekend about a film producer who is making a documentary critical of Fox News and the potential copyright issues he might run into when using the company's news clips. The film is called "Outfoxed: Rupert Murdoch's War on Journalism"
" The film is an obsessively researched expose of the ways in which Fox News, as Greenwald sees it, distorts its coverage to serve the conservative political agenda of its owner, the media tycoon Rupert Murdoch. It features interviews with former Fox employees, leaked policy memos written by Fox executives and extensive footage from Fox News, which Greenwald is using without the network's permission."
Now this is completely idiotic. Apparently some in the publishing industry think:
"Used books are to consumer books as Napster was to the music industry"
What unadulterated nonsense.
"Used books are to consumer books as Napster was to the music industry"
What unadulterated nonsense.
Thursday, July 08, 2004
Larry Lessig has some interesting background to the INDUCE act and how confusion over copyright reigns in Congress.
Just came across an Microsoft reader e-book version of the US Constitution. Amazon say it can't be printed but one of the reviewers say that the license permits it to be printed twice a year. That's funny.
Ben Hammersley at The Guardian looks at the issue of EU software patents in an accessible piece.
On the copyright front, those aggravated by Michael Moore's latest film, Farenheit 9/11, are suggesting a distributed Net based critique of the entire film in small chunks.
"The internet is filling up with point by point exposes of Michael Moore’s deceptions. (See for instance MooreWatch, fahrenheitfact, and various reviews.) Would it be legal to compile these Fiskings into a filmic refutation of Fahrenheit 9/11, using the same video feeds that Moore uses, and some of his own footage? Would it be “fair use” to in effect take clips from Fahrenheit, replace Moore’s narration with honest narration, and run the modified clips side by side with the originals?
Perhaps the effort could be decentralized, with lots of people or little groups of people each putting together individual snippets. Surely fair use allows a person to put together one little comparison piece."
Michael Moore is on record as saying he doesn't mind people downloading his film as long as they are not making a profit out of it because he didn't like the state of intellectual property laws. I'm not sure that this was what he had in mind though.
I'm no fan of soundbite propaganda from any part of the political spectrum and that's one of the nice things about the Net - it's potential as a tool for reasoned argument and not just a point by point propaganda based dissection of an opponents' arguments. Sadly the temptation is to run with the unfair advocacy tactics rather than reasoned arguments because so many of us can be persuaded in that way. Mr Moore's film is only really likely to further convince President Bush's opponents that they still don't like him and convince Mr Bush's supporters that they don't like Mr Moore. It would be significantly more useful if either side focussed on enlightenment rather than playing to the mob.
On the copyright front, those aggravated by Michael Moore's latest film, Farenheit 9/11, are suggesting a distributed Net based critique of the entire film in small chunks.
"The internet is filling up with point by point exposes of Michael Moore’s deceptions. (See for instance MooreWatch, fahrenheitfact, and various reviews.) Would it be legal to compile these Fiskings into a filmic refutation of Fahrenheit 9/11, using the same video feeds that Moore uses, and some of his own footage? Would it be “fair use” to in effect take clips from Fahrenheit, replace Moore’s narration with honest narration, and run the modified clips side by side with the originals?
Perhaps the effort could be decentralized, with lots of people or little groups of people each putting together individual snippets. Surely fair use allows a person to put together one little comparison piece."
Michael Moore is on record as saying he doesn't mind people downloading his film as long as they are not making a profit out of it because he didn't like the state of intellectual property laws. I'm not sure that this was what he had in mind though.
I'm no fan of soundbite propaganda from any part of the political spectrum and that's one of the nice things about the Net - it's potential as a tool for reasoned argument and not just a point by point propaganda based dissection of an opponents' arguments. Sadly the temptation is to run with the unfair advocacy tactics rather than reasoned arguments because so many of us can be persuaded in that way. Mr Moore's film is only really likely to further convince President Bush's opponents that they still don't like him and convince Mr Bush's supporters that they don't like Mr Moore. It would be significantly more useful if either side focussed on enlightenment rather than playing to the mob.
Monday, July 05, 2004
For copyfighters - Ernest Miller is continuing his hatchet job on the INDUCE (now IICA) act at his Importance of... weblog. INDUCE and the DMCA, small businesses, RIAA lawsuits against individuals, Finlaw survey on same, derivative works et al. Ernest is on a roll and when someone this smart and sensible gets this worked up, it is worth taking notice.
The EFF want to scupper the broadcast flag. Any devices created in advance of the regulation coming into effect, which can bypass the technical restrictions engendered by the broadcast flag, will still be legal afterwards. So the EFF are encouraging the creation of so many such devices with so many better features than technology that will be required to be approved, that the market for the latter will just not exist. This could be usefully called the Charles Nesson approach - don't complain about what "they" are doing to the potential of the technology, just gets lots of people using it creatively.
"Today, you can use any device you like with your television: VCR, TiVo, DVD recorder, home theater receiver, or a PC combining these functions and more. A year from now, when the FCC's broadcast flag mandate [PDF] takes effect, some of those capabilities will be forbidden.
Responding to pressure from Hollywood, the FCC has adopted a rule requiring future digital television (DTV) tuners to include "content protection" (aka DRM) technologies. Starting next year, all makers of HDTV receivers must build their devices to watch for a broadcast "flag" embedded in programs by copyright holders. When it comes to digital recording, it'll be Hollywood's DRM way or the highway. Want to burn that recording digitally to a DVD to save hard drive space? Sorry, the DRM lock-box won't allow it. How about sending it over your home network to another TV? Not unless you rip out your existing network and replace it with DRMd routers. Kind of defeats the purpose of getting a high definition digital signal, doesn't it?
The good news is this mandate doesn't take effect for another year. We have until July 1, 2005, to buy, build, and sell fully-capable, non-flag-compliant HDTV receivers. Any receivers built now will "remain functional under a flag regime, allowing consumers to continue their use without the need for new or additional equipment." [PDF] Any devices made this year can be re-sold in the future."
"Today, you can use any device you like with your television: VCR, TiVo, DVD recorder, home theater receiver, or a PC combining these functions and more. A year from now, when the FCC's broadcast flag mandate [PDF] takes effect, some of those capabilities will be forbidden.
Responding to pressure from Hollywood, the FCC has adopted a rule requiring future digital television (DTV) tuners to include "content protection" (aka DRM) technologies. Starting next year, all makers of HDTV receivers must build their devices to watch for a broadcast "flag" embedded in programs by copyright holders. When it comes to digital recording, it'll be Hollywood's DRM way or the highway. Want to burn that recording digitally to a DVD to save hard drive space? Sorry, the DRM lock-box won't allow it. How about sending it over your home network to another TV? Not unless you rip out your existing network and replace it with DRMd routers. Kind of defeats the purpose of getting a high definition digital signal, doesn't it?
The good news is this mandate doesn't take effect for another year. We have until July 1, 2005, to buy, build, and sell fully-capable, non-flag-compliant HDTV receivers. Any receivers built now will "remain functional under a flag regime, allowing consumers to continue their use without the need for new or additional equipment." [PDF] Any devices made this year can be re-sold in the future."
Friday, July 02, 2004
The Dutch paliamemt is forcing the minister who supported the EU software patent directive to withdraw his support. This is apparently the first time in EU history that this has happened.
The EFF have name their top ten most-wanted patents
The EFF have name their top ten most-wanted patents
Tuesday, June 29, 2004
Mattel have paid a heavy price, according to the NYT, for bringing a frivolous copyright and trademark lawsuit against an artist parodying Barbie.
"After a lengthy legal tussle, which included a series of appeals, a federal judge late last week instructed Mattel to pay Mr. Forsythe legal fees of more than $1.8 million...
...Mattel has aggressively protected the Barbie likeness and trademark...
"Plaintiff had access to sophisticated counsel who could have determined that such a suit was objectively unreasonable and frivolous," Judge Lew wrote in his order. "Instead it appears plaintiff forced defendant into costly litigation to discourage him from using Barbie's image in his artwork. This is just the sort of situation in which this court should award attorneys fees to deter this type of litigation which contravenes the intent of the Copyright Act.''
The order also characterized Mattel's claim of trademark infringement as "groundless and unreasonable.''
Jonathan Zittrain, a professor at Harvard Law School who specializes in Internet and copyright law, said, "It's enough to give corporations with brands they want to protect and expand pause to consider whether to simply reflexively unleash the hounds the minute they see somebody doing something that relates to their brand of which they don't approve.
"It may send a signal that a 'take no prisoner' litigation strategy against the little guy has new risks for the plaintiff," he said. "
"After a lengthy legal tussle, which included a series of appeals, a federal judge late last week instructed Mattel to pay Mr. Forsythe legal fees of more than $1.8 million...
...Mattel has aggressively protected the Barbie likeness and trademark...
"Plaintiff had access to sophisticated counsel who could have determined that such a suit was objectively unreasonable and frivolous," Judge Lew wrote in his order. "Instead it appears plaintiff forced defendant into costly litigation to discourage him from using Barbie's image in his artwork. This is just the sort of situation in which this court should award attorneys fees to deter this type of litigation which contravenes the intent of the Copyright Act.''
The order also characterized Mattel's claim of trademark infringement as "groundless and unreasonable.''
Jonathan Zittrain, a professor at Harvard Law School who specializes in Internet and copyright law, said, "It's enough to give corporations with brands they want to protect and expand pause to consider whether to simply reflexively unleash the hounds the minute they see somebody doing something that relates to their brand of which they don't approve.
"It may send a signal that a 'take no prisoner' litigation strategy against the little guy has new risks for the plaintiff," he said. "
There's an interesting article in the Independent about the US scientific community's concerns about the politicisation of science by the current Bush adminstration.
IP Law bulletin (subscriber only access) reported that the US Senate passed the INDUCE (or as it is now called the 'Inducing Infringement of Copyrights'). According to Wendy Selzer at the EFF the report was wrong but the bill is still being rushed through at breakneck speed.
Monday, June 28, 2004
Well PIRATE Act has got past the US Senate. Senator Hatch is backing the legislation and hoping for tens of thousands of enforcement actions by the department of justice (DOJ) on behalf of the entertainment industries. Yes the PIRATE act requires the DOJ and (not the entertainment industry) to spend money on investigators and lawyers to go after those diseased children with copyright infringing tendencies, who Senator Hatch will simultaneously protect with his INDUCE act. The leaps of logic here, if it were possible to produce a physical manifestation of them, would be worthy of a world class gymnast.
Senator Hatch has come a long way since Larry Lessig proclaimed him as someone who understood.
Senator Hatch has come a long way since Larry Lessig proclaimed him as someone who understood.
Friday, June 25, 2004
The INDUCE (Inducement Devolves into Unlawful Child Exploitation) act has had a change of name. It is now to be called the Inducing Infringement of Copyrights Act of 2004. Ernest Miller made his own notes on Senator Hatch's justifications for the bill. Extract (Ernest's comments are in brackets bold and italics):
"A secondary-liability rule that punishes only control also punishes consumers: It encourages designers to avoid “control” by shifting risks onto consumers. [Whereas laws that punish control AND intent punish consumers by eliminating types of software many consumers use quite legitimately. It also punishes consumers by taxing innovation and turning technology development over to Hollywood. Another, less drastic solution would be for the government to sponsor a consumer education program, like those "no smoking" ads. Heck, why should government do it? If Hollywood is so concerned with the consumers, let them pay for an education campaign.] For example, Napster incurred billion-dollar liability because it controlled computers housing a search index that located infringing files. Programs like Kazaa avoid Napster’s “control” by moving their search indices onto computers owned by unsuspecting consumers. [Unsuspecting consumers or willful infringers? Which is it, Senator? If the consumers are unsuspecting, shouldn't we be considering a law absolving them of liability as well?] ...
...But a fallacy lurks here: The “direct infringers” at issue are not the traditional targets for copyright enforcement. [Why is "direct infringers" in quotes? Are they direct infringers or not?] In fact, they are children [Will someone please think of the children?] and consumers: They are the hundreds of millions [Hundreds of millions. That is an awful lot of "direct infringers." Certainly a higher estimate of infringers than I have seen before.] of Americans – toddlers to seniors – who use and enjoy the creative works that copyrights have helped create. [Indeed. Perhaps Hatch should pass a law immunizing children and consumers from infringement lawsuits if he is so concerned.]...
...Worse yet, artists must sue their fans for the sin of misusing devices designed to be easy and tempting to misuse. [Yeah, that IM is just totally too tempting. Oh, wait, Hatch is talking about P2P, as he ... well, he actually never defines it.] That is unfair: When inducement is the disease, infringement can be seen as just a symptom. [You're not guilty of infringement - you're just sick. "Hi, I'm Ernest, and I'm an infringer." "Hi, Ernest!"] Yet artists must ignore inducers who profit by chanting, “Hey, kids, infringement is cool, and we will help you get away with it.” [Well, if they are chanting ... oh, wait, the only one chanting is in Palestine, outside of Hatch's reach. The FTC says the ones in the US give adequate warning of the risks.] Instead, artists can only sue kids [Will someone please think of the children?] who succumb to this temptation. They must leave Fagin to his work – and sue Oliver Twist. [The difference being, however, that Fagin has specific knowledge of the specific individuals he is sending out to commit specific crimes. Slightly different case, don't you think?]
Brilliant. I laughed out loud at: You're not guilty of infringement - you're just sick. "Hi, I'm Ernest, and I'm an infringer." "Hi, Ernest!".
With bipartisan support this thing actually has a serious chance of making it into law. The EFF have composed a hypothetical complaint against Apple based on the proposed Act (previously known as INDUCE).
"Apple's iPod music player seemed particularly vulnerable to attack. Any major record label could bring a strong lawsuit against Apple for "intentionally inducing" infringement under this new law with the iPod, both because it's plausible to argue that having an iPod enhances the lure of using P2P to download music (gotta fill all that space!) and because all the major record labels still believe that private sharing of songs from your CDs with friends is copyright infringement. We still disagree with the labels on these points, but the reality is that no court has yet convinced them that their legal theories are flawed. We also threw in Toshiba for making the iPod's hard drive and CNET for showing people how to move the iPod's music files.
Under the Supreme Court's ruling in Sony v. Universal (the Betamax VCR case), devices like the iPod and CD burners are legal as long as they have legal uses—what the Court called "substantial non-infringing uses." This has been the rule in the technology sector for the last 20 years. Billions of dollars and thousands of jobs have depended on it. Industries have blossomed under it. And any case brought against Apple or HP or Dell would be immediately dismissed because of it.
Now Senator Hatch and his allies want to tear down that rule and substitute a new one with the Induce Act. With it, the fact that a device or product has legal uses, even lots of them, is irrelevant. Filing a lawsuit under the Induce Act is like dropping a litigation bomb on any company that gives users products that have even the slightest potential to assist in copyright infringement. Technology companies will avoid being innovative, and investors will avoid supporting new technologies for fear of being sued out of existence based on the possible conduct of their customers. If this bill had been law in 1984, there would be no VCR. If this bill had been law in 1995, there would be no CD burners. If this bill had been law in 2000, there would be no iPod. If this bill becomes law in 2004, we may lose those devices and many more that we haven't even begun to imagine."
"A secondary-liability rule that punishes only control also punishes consumers: It encourages designers to avoid “control” by shifting risks onto consumers. [Whereas laws that punish control AND intent punish consumers by eliminating types of software many consumers use quite legitimately. It also punishes consumers by taxing innovation and turning technology development over to Hollywood. Another, less drastic solution would be for the government to sponsor a consumer education program, like those "no smoking" ads. Heck, why should government do it? If Hollywood is so concerned with the consumers, let them pay for an education campaign.] For example, Napster incurred billion-dollar liability because it controlled computers housing a search index that located infringing files. Programs like Kazaa avoid Napster’s “control” by moving their search indices onto computers owned by unsuspecting consumers. [Unsuspecting consumers or willful infringers? Which is it, Senator? If the consumers are unsuspecting, shouldn't we be considering a law absolving them of liability as well?] ...
...But a fallacy lurks here: The “direct infringers” at issue are not the traditional targets for copyright enforcement. [Why is "direct infringers" in quotes? Are they direct infringers or not?] In fact, they are children [Will someone please think of the children?] and consumers: They are the hundreds of millions [Hundreds of millions. That is an awful lot of "direct infringers." Certainly a higher estimate of infringers than I have seen before.] of Americans – toddlers to seniors – who use and enjoy the creative works that copyrights have helped create. [Indeed. Perhaps Hatch should pass a law immunizing children and consumers from infringement lawsuits if he is so concerned.]...
...Worse yet, artists must sue their fans for the sin of misusing devices designed to be easy and tempting to misuse. [Yeah, that IM is just totally too tempting. Oh, wait, Hatch is talking about P2P, as he ... well, he actually never defines it.] That is unfair: When inducement is the disease, infringement can be seen as just a symptom. [You're not guilty of infringement - you're just sick. "Hi, I'm Ernest, and I'm an infringer." "Hi, Ernest!"] Yet artists must ignore inducers who profit by chanting, “Hey, kids, infringement is cool, and we will help you get away with it.” [Well, if they are chanting ... oh, wait, the only one chanting is in Palestine, outside of Hatch's reach. The FTC says the ones in the US give adequate warning of the risks.] Instead, artists can only sue kids [Will someone please think of the children?] who succumb to this temptation. They must leave Fagin to his work – and sue Oliver Twist. [The difference being, however, that Fagin has specific knowledge of the specific individuals he is sending out to commit specific crimes. Slightly different case, don't you think?]
Brilliant. I laughed out loud at: You're not guilty of infringement - you're just sick. "Hi, I'm Ernest, and I'm an infringer." "Hi, Ernest!".
With bipartisan support this thing actually has a serious chance of making it into law. The EFF have composed a hypothetical complaint against Apple based on the proposed Act (previously known as INDUCE).
"Apple's iPod music player seemed particularly vulnerable to attack. Any major record label could bring a strong lawsuit against Apple for "intentionally inducing" infringement under this new law with the iPod, both because it's plausible to argue that having an iPod enhances the lure of using P2P to download music (gotta fill all that space!) and because all the major record labels still believe that private sharing of songs from your CDs with friends is copyright infringement. We still disagree with the labels on these points, but the reality is that no court has yet convinced them that their legal theories are flawed. We also threw in Toshiba for making the iPod's hard drive and CNET for showing people how to move the iPod's music files.
Under the Supreme Court's ruling in Sony v. Universal (the Betamax VCR case), devices like the iPod and CD burners are legal as long as they have legal uses—what the Court called "substantial non-infringing uses." This has been the rule in the technology sector for the last 20 years. Billions of dollars and thousands of jobs have depended on it. Industries have blossomed under it. And any case brought against Apple or HP or Dell would be immediately dismissed because of it.
Now Senator Hatch and his allies want to tear down that rule and substitute a new one with the Induce Act. With it, the fact that a device or product has legal uses, even lots of them, is irrelevant. Filing a lawsuit under the Induce Act is like dropping a litigation bomb on any company that gives users products that have even the slightest potential to assist in copyright infringement. Technology companies will avoid being innovative, and investors will avoid supporting new technologies for fear of being sued out of existence based on the possible conduct of their customers. If this bill had been law in 1984, there would be no VCR. If this bill had been law in 1995, there would be no CD burners. If this bill had been law in 2000, there would be no iPod. If this bill becomes law in 2004, we may lose those devices and many more that we haven't even begun to imagine."
Thursday, June 24, 2004
It seems that the number of airlines and travel companies sharing passenger information with the Transportation Security Administration (TSA) for testing of the passenger screening program CAPPS II was more than was originally thought.
The EU parliament might like to throw that into the mix of their ECJ case against the Commission and Council of Ministers on the agreement to share EU passenger data with the US? No? Never mind. We saw how lively EU democracy is on software patents. Why should a little matter like handing over personal details of EU citizens to a foreign government (albeit a friendly one in this instance) give rise for concern? Well from my perspective the reason would be just to demonstrate a remote semblance of respectability of the institutions of the EU and their ability to answer basic questions related to the new constitution and its gaurantee of the charter of fundamental rights. Of course the agreement was concluded before the constitution (which, of course, may well fall apart depending on the results of national referenda). But even without the constitution the EU theoretically offers fundamental gaurantees on privacy which in the past have led to the brink of a trade war with the US, on the issue of how US companies would be required to handle data about European citizens flowing into the US.
In March 2000, after nearly two years of negotiations, the EU and the US reached a tentative agreement on the processing of personal data. The EU Data Protection Directive (Article 25) requires that personal data shall not be transferred to a country outside the EU unless that country "ensures an adequate level of protection." The Directive theoretically guarantees a high standard of personal data privacy for EU citizens. The US was considered by the EU to lack an adequate level of protection.
The negotiators were reportedly trying to work out a way for US companies to meet EU standards of privacy. The Europeans agreed to the Americans' proposed "safe harbour." US companies would sign up to this safe harbour by agreeing to follow certain restrictions on how they processed personal data. They would register with the US Department of Commerce and there would be "adequate enforcement" of the restrictions the companies agreed to. The US Commerce Secretary, William Daley, described the agreement as a "carefully constructed and well-implemented system of self-regulation" which could protect privacy rights.
Critics at the time accused the European negotiators of caving in, since self regulation by industry was what they were trying to avoid. Many EU nation states had not implemented the directive at the time of the negotiations, however. The US therefore had a legitimate complaint - how could they be expected to accept data flow restrictions required by EU law but not yet appropriately implemented there? The European Commission, at the time, was in the process of suing Germany, France, the Netherlands, Ireland and Luxembourg in the European court over their failure to implement the directive.
Critics of the agreement on transfer of passenger data have criticised Commissioner Bolkstein, not of caving in, but of deceit and underhand deals with the US in dark smoky rooms. On this occasion, I can understand the critics' point of view.
The EU parliament might like to throw that into the mix of their ECJ case against the Commission and Council of Ministers on the agreement to share EU passenger data with the US? No? Never mind. We saw how lively EU democracy is on software patents. Why should a little matter like handing over personal details of EU citizens to a foreign government (albeit a friendly one in this instance) give rise for concern? Well from my perspective the reason would be just to demonstrate a remote semblance of respectability of the institutions of the EU and their ability to answer basic questions related to the new constitution and its gaurantee of the charter of fundamental rights. Of course the agreement was concluded before the constitution (which, of course, may well fall apart depending on the results of national referenda). But even without the constitution the EU theoretically offers fundamental gaurantees on privacy which in the past have led to the brink of a trade war with the US, on the issue of how US companies would be required to handle data about European citizens flowing into the US.
In March 2000, after nearly two years of negotiations, the EU and the US reached a tentative agreement on the processing of personal data. The EU Data Protection Directive (Article 25) requires that personal data shall not be transferred to a country outside the EU unless that country "ensures an adequate level of protection." The Directive theoretically guarantees a high standard of personal data privacy for EU citizens. The US was considered by the EU to lack an adequate level of protection.
The negotiators were reportedly trying to work out a way for US companies to meet EU standards of privacy. The Europeans agreed to the Americans' proposed "safe harbour." US companies would sign up to this safe harbour by agreeing to follow certain restrictions on how they processed personal data. They would register with the US Department of Commerce and there would be "adequate enforcement" of the restrictions the companies agreed to. The US Commerce Secretary, William Daley, described the agreement as a "carefully constructed and well-implemented system of self-regulation" which could protect privacy rights.
Critics at the time accused the European negotiators of caving in, since self regulation by industry was what they were trying to avoid. Many EU nation states had not implemented the directive at the time of the negotiations, however. The US therefore had a legitimate complaint - how could they be expected to accept data flow restrictions required by EU law but not yet appropriately implemented there? The European Commission, at the time, was in the process of suing Germany, France, the Netherlands, Ireland and Luxembourg in the European court over their failure to implement the directive.
Critics of the agreement on transfer of passenger data have criticised Commissioner Bolkstein, not of caving in, but of deceit and underhand deals with the US in dark smoky rooms. On this occasion, I can understand the critics' point of view.
Wednesday, June 23, 2004
Spiked have a positive review of Dr Mike Fitzpatrick's new book, MMR and Autism: What parents need to know.
Clay Shirky on DNA, P2P, and Privacy. In the privacy debate about ubiquitous centralised databases,
"Databases have two key weaknesses...The first is that they deal badly with ambiguity, and generally have to issue a unique number, sometimes called a primary key, to every entity they store information on. The US Social Security number is a primary key that points to you,...second weakness: since each database maintains its own set of primary keys, creating interoperability between different databases is difficult and expensive, and generally requires significant advance coordination...
Privacy advocates have relied on these weaknesses in creating legal encumbrances to issuing and sharing primary keys. They believe, rightly, that widely shared primary keys pose a danger to privacy. (The recent case of Princeton using its high school applicants' Social Security numbers to log in to the Yale admittance database highlights these dangers.) The current worst-case scenario is a single universal database in which all records -- federal, state, and local, public and private -- would be unified with a single set of primary keys.
New technology brings new challenges however, and in the database world the new challenge is not a single unified database, but rather decentralized interoperability, interoperability brought about by a single universally used ID. The ID is DNA. The interoperability comes from the curious and unique advantages DNA has as a primary key. And the effect will put privacy advocates in a position analogous to that of the RIAA, forcing them to switch from fighting the creation of a single central database to fighting a decentralized and interoperable system of peer-to-peer information storage."
"Databases have two key weaknesses...The first is that they deal badly with ambiguity, and generally have to issue a unique number, sometimes called a primary key, to every entity they store information on. The US Social Security number is a primary key that points to you,...second weakness: since each database maintains its own set of primary keys, creating interoperability between different databases is difficult and expensive, and generally requires significant advance coordination...
Privacy advocates have relied on these weaknesses in creating legal encumbrances to issuing and sharing primary keys. They believe, rightly, that widely shared primary keys pose a danger to privacy. (The recent case of Princeton using its high school applicants' Social Security numbers to log in to the Yale admittance database highlights these dangers.) The current worst-case scenario is a single universal database in which all records -- federal, state, and local, public and private -- would be unified with a single set of primary keys.
New technology brings new challenges however, and in the database world the new challenge is not a single unified database, but rather decentralized interoperability, interoperability brought about by a single universally used ID. The ID is DNA. The interoperability comes from the curious and unique advantages DNA has as a primary key. And the effect will put privacy advocates in a position analogous to that of the RIAA, forcing them to switch from fighting the creation of a single central database to fighting a decentralized and interoperable system of peer-to-peer information storage."
Microsoft are suing, for defamation, the Brazilian government official promoting open source software use in the public services, Sergio Amadeu. His alleged crime is that he was too nasty when criticising Microsoft because they had
" a ‘drug-dealer practice’ for offering the operational system Windows to some governments and cities for digital inclusion programs. ‘This is a trojan horse, a form of securing critical mass to continue constraining the country’.”
" a ‘drug-dealer practice’ for offering the operational system Windows to some governments and cities for digital inclusion programs. ‘This is a trojan horse, a form of securing critical mass to continue constraining the country’.”
David Blunkett, UK Home Secretary, is the "Judicial equivalent of a football hooligan" according to Simon Jenkins in the Times.
The Washington Post had an article about RFID tags yesterday. It's the usual stuff about the potential of RFIDs to improve business and the worries of privacy advicates. But the thing that jumped out at me as an absolute classic misunderstanding was this:
'"If you know quickly who is in the area, you can customize their experience," said Paul McKeown, who heads IBM's global smart-card efforts. McKeown said he was inspired by an experience his mother had in her small town in England, where for years she was banking at the same branch and one day wasn't recognized and was challenged by a new teller.'
If ever there were folk "who didn't get it" about technology, it is people with this kind of attitude. The whole point about the small town where the banking staff knew and cared about the customers was that people were put in touch with and cared about people. No amount of technology facilitating a "customised experience" can bridge the unmeasurable qualitative difference between treating a person as a person and treating them as a customised number to be processed in accordance with the instructions on the employee's screen.
As Cory said in his DRM speech at Microsoft, "New media don't succeed because they're like the old media, only better: they succeed because they're worse than the old media at the stuff the old media is good at, and better at the stuff the old media are bad at." I'd like to offer an extension to this - new methods and technologies do not succeed because they are like people only better, they suceed because they are worse than people at the stuff people are good at (caring) and better at the stuff people are bad at (rapidly processing and moving around billions of bits). Try not to get confused about that. It's important.
The thing that makes my own organisation, the Open University, so unique and special was that we put people in touch with people. We recognised, 35 years ago, that the way for open and distance university education to work for students with no prior qualifications was to put good people (vast numbers in the OU) in touch with good people with unrecognised potential (our students) and that we could be all-inclusive. We've had well over a million graduates since then, many of whom would never have had the opportunity to take a university degree.
The thing that makes the Internet so special is that it puts people in touch with people. Sure it is a bottomless sink of information and a useful communications infrastructure for commerce but the key is that it is a many to many communcations medium putting people in touch with people.
I'll stop there lest I be accused of becoming too evangelistic...
'"If you know quickly who is in the area, you can customize their experience," said Paul McKeown, who heads IBM's global smart-card efforts. McKeown said he was inspired by an experience his mother had in her small town in England, where for years she was banking at the same branch and one day wasn't recognized and was challenged by a new teller.'
If ever there were folk "who didn't get it" about technology, it is people with this kind of attitude. The whole point about the small town where the banking staff knew and cared about the customers was that people were put in touch with and cared about people. No amount of technology facilitating a "customised experience" can bridge the unmeasurable qualitative difference between treating a person as a person and treating them as a customised number to be processed in accordance with the instructions on the employee's screen.
As Cory said in his DRM speech at Microsoft, "New media don't succeed because they're like the old media, only better: they succeed because they're worse than the old media at the stuff the old media is good at, and better at the stuff the old media are bad at." I'd like to offer an extension to this - new methods and technologies do not succeed because they are like people only better, they suceed because they are worse than people at the stuff people are good at (caring) and better at the stuff people are bad at (rapidly processing and moving around billions of bits). Try not to get confused about that. It's important.
The thing that makes my own organisation, the Open University, so unique and special was that we put people in touch with people. We recognised, 35 years ago, that the way for open and distance university education to work for students with no prior qualifications was to put good people (vast numbers in the OU) in touch with good people with unrecognised potential (our students) and that we could be all-inclusive. We've had well over a million graduates since then, many of whom would never have had the opportunity to take a university degree.
The thing that makes the Internet so special is that it puts people in touch with people. Sure it is a bottomless sink of information and a useful communications infrastructure for commerce but the key is that it is a many to many communcations medium putting people in touch with people.
I'll stop there lest I be accused of becoming too evangelistic...
Tuesday, June 22, 2004
It seems as if the Dutch parliament may consider revoking its support for the EU software patent directive because the Dutch minister responsible for agreeing to the directive in the Council of Ministers and for educating the parliament on the matter, Mr Brinkhorst, er ever so slightly misled them, or should I say "misinformed" them. He suggested in a letter to the Dutch parliament in advance of the vote in the Council of Ministers that there was "agreement" between the EU Parliament and the Commission on the issue, when the two were basically at loggerheads.
I won't suggest that Mr Brinkhorst lied as it would not be appropriate especially since there is a good bet that many of his contemporaries around the EU were equally "informative" with regard to educating their national parliaments on the matter.
The transcript of the discussions in the council of ministers makes interesting reading, if only for those seriously enmeshed in the ethics and politics of sw patents but the final part of this democratic discussion is a classic case of the Irish (IE)chairwoman pushing for the rubber stamping of the business at hand, regardless of the substance of the business.
"IE: And Denmark? Can I hear from Denmark please?
Denmark: I would really like to ask the commission why they couldn't accept the last sentence put forward by the Italians. It was in the original German proposal.
(19:13) IE: I think the Commissioner already answered that question, I'm sorry Denmark. So are you yes, no, abstain?
DK: I think we wouldn't, we're not hap...
IE: Can I assume you're a "yes"?
DK: We're not happy
IE: But are you 80% happy?
DK: But... I think we...
IE: We don't need you you to be totally happy. None of us are totally happy.
DK: I know that, I know that.
IE: If we were, we wouldn't be here
DK: I think we're not very happy, but I think we would, we would...
IE: Thank you very much
DK: ... we would like to see a solution today.
IE: Thank you very much, Denmark.
(19:45) IE: Spain, are you abstention or no?
ES: Sorry, no.
IE: Thank you Spain, Austria?
AT: Abstention.
(20:03) IE: Well, Ladies and Gentlemen, I'm happy to say that we have a qualified majority, so thank you all very very much indeed, and thank you to commissioner Bolkestein.
IE: France... The vote is over France, no more ... for France please
FR: I didn't want to cause confusion. I'm so happy that we've managed to reach this result thanks to your hard work and that of the Commission. I just wanted to say that I'd like to propose a declaration using the words I used in my first statement. A declaration appended to the Council minutes.
(21:04) IE: Yes, thank you France, it's fine."
Democracy in action. I particularly like the "We don't need you you to be totally happy. None of us are totally happy." I'm almost relieved that the Irish presidency of the EU is coming to an end.
I won't suggest that Mr Brinkhorst lied as it would not be appropriate especially since there is a good bet that many of his contemporaries around the EU were equally "informative" with regard to educating their national parliaments on the matter.
The transcript of the discussions in the council of ministers makes interesting reading, if only for those seriously enmeshed in the ethics and politics of sw patents but the final part of this democratic discussion is a classic case of the Irish (IE)chairwoman pushing for the rubber stamping of the business at hand, regardless of the substance of the business.
"IE: And Denmark? Can I hear from Denmark please?
Denmark: I would really like to ask the commission why they couldn't accept the last sentence put forward by the Italians. It was in the original German proposal.
(19:13) IE: I think the Commissioner already answered that question, I'm sorry Denmark. So are you yes, no, abstain?
DK: I think we wouldn't, we're not hap...
IE: Can I assume you're a "yes"?
DK: We're not happy
IE: But are you 80% happy?
DK: But... I think we...
IE: We don't need you you to be totally happy. None of us are totally happy.
DK: I know that, I know that.
IE: If we were, we wouldn't be here
DK: I think we're not very happy, but I think we would, we would...
IE: Thank you very much
DK: ... we would like to see a solution today.
IE: Thank you very much, Denmark.
(19:45) IE: Spain, are you abstention or no?
ES: Sorry, no.
IE: Thank you Spain, Austria?
AT: Abstention.
(20:03) IE: Well, Ladies and Gentlemen, I'm happy to say that we have a qualified majority, so thank you all very very much indeed, and thank you to commissioner Bolkestein.
IE: France... The vote is over France, no more ... for France please
FR: I didn't want to cause confusion. I'm so happy that we've managed to reach this result thanks to your hard work and that of the Commission. I just wanted to say that I'd like to propose a declaration using the words I used in my first statement. A declaration appended to the Council minutes.
(21:04) IE: Yes, thank you France, it's fine."
Democracy in action. I particularly like the "We don't need you you to be totally happy. None of us are totally happy." I'm almost relieved that the Irish presidency of the EU is coming to an end.
Siva's Response to a Senate Staffer on the p2p question,
"I have too much to say about p2p. And my opinions are beyond the pro and con simplifications that get laid out in newspapers...
...Copyright is by design a leaky regulatory system. If the leaks are too big, copyright fails to generate incentives. If they are too small, copyright fails to allow for democratic creativity and sharing -- the essence of culture. So managing leaks is important. But freaking out about them is counterproductive. So far, the content industries have been better at freaking than managing. And we are all worse off because of that...
...The best way to approach this issue is through serious and sincere ethical deliberation. That means avoiding harsh moralizing, threats of criminal or civil action, and blunt technological moves that will only create more problems and ill-will. The goal should be flourishing democratic culture and creativity. It should not be the artificial support of poorly run media companies. Nor should it be the unfettered proliferation of machines and code for the sake of more machines and code. We must be modest and patient -- an unpopular stance in this age of extremes."
Beautifully put.
"I have too much to say about p2p. And my opinions are beyond the pro and con simplifications that get laid out in newspapers...
...Copyright is by design a leaky regulatory system. If the leaks are too big, copyright fails to generate incentives. If they are too small, copyright fails to allow for democratic creativity and sharing -- the essence of culture. So managing leaks is important. But freaking out about them is counterproductive. So far, the content industries have been better at freaking than managing. And we are all worse off because of that...
...The best way to approach this issue is through serious and sincere ethical deliberation. That means avoiding harsh moralizing, threats of criminal or civil action, and blunt technological moves that will only create more problems and ill-will. The goal should be flourishing democratic culture and creativity. It should not be the artificial support of poorly run media companies. Nor should it be the unfettered proliferation of machines and code for the sake of more machines and code. We must be modest and patient -- an unpopular stance in this age of extremes."
Beautifully put.
Rather an obscure case relating to the 4th and 5th amendments to the US constitution was decided by the Supreme Court yesterday.
It about someone having a row in a truck with his daughter, who was stopped by the police (who had been tipped off about the row) and refusing to give his name to the officer who requested it. He was prosecuted and fined $250. Technically what was under scrutiny was the man's right not to incriminate himself (5th) and his right to be free of unreasonable search and seizure (4th). Plus, presumably his right to remain silent. The court decided 5-4 against the man's assertion of his right to remain silent in the circumstances.
Michael Froomkin briefly looks at the technicalities. Apparently it's quite a narrowly tailored decision which need not necessarily have wider implications than the specific case (though Froomkin suggests it might be a slippery slope).
Under a 1968 Supreme Court decision police are allowed to hold someone briefly (called a "Terry stop" after the case) in order to obtain more information, which seems fair enough. The thing that interested me about this particular case, though, is not the specific technicalities but the question of latent ambiguity. Presumably the justices in 1968 had an idea in their heads about the kind of information that an officer could find out about an individual during a brief detention. It would be fairly limited e.g. any parking tickets, was the vehicle stolen, did he match a suspect's description, was someone of that name wanted etc. 36 years on, however, with vasts amounts of information on everybody collected in public and private and networked databases makes the kind of information it is possible to find out about an individual, in a short space of time, qualitatively of a completely different order.
Should not the modern day justices be exploring the boundaries of the information it should be possible to find out? The decision doesn't affect us directly this side of the Atlantic and it would seem on the surface that there are no technological questions at issue in the case but this is a pretty clear example, imho, of where technology has changed things to such a degree that the questions it raises are not solved by a narrow mechanical application of existing laws (whether or not that mechanical application itself would/could provide grounds for dispute).
EPIC have a webpage devoted to the case.
It about someone having a row in a truck with his daughter, who was stopped by the police (who had been tipped off about the row) and refusing to give his name to the officer who requested it. He was prosecuted and fined $250. Technically what was under scrutiny was the man's right not to incriminate himself (5th) and his right to be free of unreasonable search and seizure (4th). Plus, presumably his right to remain silent. The court decided 5-4 against the man's assertion of his right to remain silent in the circumstances.
Michael Froomkin briefly looks at the technicalities. Apparently it's quite a narrowly tailored decision which need not necessarily have wider implications than the specific case (though Froomkin suggests it might be a slippery slope).
Under a 1968 Supreme Court decision police are allowed to hold someone briefly (called a "Terry stop" after the case) in order to obtain more information, which seems fair enough. The thing that interested me about this particular case, though, is not the specific technicalities but the question of latent ambiguity. Presumably the justices in 1968 had an idea in their heads about the kind of information that an officer could find out about an individual during a brief detention. It would be fairly limited e.g. any parking tickets, was the vehicle stolen, did he match a suspect's description, was someone of that name wanted etc. 36 years on, however, with vasts amounts of information on everybody collected in public and private and networked databases makes the kind of information it is possible to find out about an individual, in a short space of time, qualitatively of a completely different order.
Should not the modern day justices be exploring the boundaries of the information it should be possible to find out? The decision doesn't affect us directly this side of the Atlantic and it would seem on the surface that there are no technological questions at issue in the case but this is a pretty clear example, imho, of where technology has changed things to such a degree that the questions it raises are not solved by a narrow mechanical application of existing laws (whether or not that mechanical application itself would/could provide grounds for dispute).
EPIC have a webpage devoted to the case.
Monday, June 21, 2004
Some folks have added some links into Cory Doctorow's DRM talk to Microsoft researchers. Just a sample of what can be done to improve public domain work and facilitate open source learning and free flow of information.
Steven Wu at Lawmeme has been at a convention on the constitution and thinking of the use of software for gerrymandering, discussed by one panel.
"Almost every panelist at one point mentioned a piece of software that has become popular in state legislatures: Caliper's Maptitude for Redistricting, which the website advertises as:
'a special edition of Caliper Corporation's Maptitude GIS for Windows that includes everything you need to build and analyze redistricting plans. As you assign area features to a district, the district boundaries are redrawn and selected attributes are automatically summarized to reflect the district's characteristics.'
Basically, as one of the panelists put it today, Maptitude allows you to do just about anything you want with a redistricting plan, once you plug in the demographic data. You want districts that are as evenly balanced politically/racially/genderly as possible? How about a lot of majority-minority districts? How about districts that will protect incumbents, by filling them with people of the incumbents' political party? Whatever your preferences, Maptitude can generate the appropriate redistricting lines in half an hour or less."
...An unseen part of the evoting story that not too many people have been registering.
"Almost every panelist at one point mentioned a piece of software that has become popular in state legislatures: Caliper's Maptitude for Redistricting, which the website advertises as:
'a special edition of Caliper Corporation's Maptitude GIS for Windows that includes everything you need to build and analyze redistricting plans. As you assign area features to a district, the district boundaries are redrawn and selected attributes are automatically summarized to reflect the district's characteristics.'
Basically, as one of the panelists put it today, Maptitude allows you to do just about anything you want with a redistricting plan, once you plug in the demographic data. You want districts that are as evenly balanced politically/racially/genderly as possible? How about a lot of majority-minority districts? How about districts that will protect incumbents, by filling them with people of the incumbents' political party? Whatever your preferences, Maptitude can generate the appropriate redistricting lines in half an hour or less."
...An unseen part of the evoting story that not too many people have been registering.
Friday, June 18, 2004
The OECD has published their 386 page "Privacy Online" report. Definitely not bedtime reading but could have important policy implications. It's based on an OECD ministerial declaration from 1998 on the "Protection of Privacy on Global Networks" with the objective of ensuring "the effective protection of privacy and personal data as well as the continued transborder flow of personal data on global networks."
You could be forgiven for going "Pardon?" at that point.
Chapter 3, pages 27 - 35 gives the meat of the guidelines.
Legislation and self regulation each have advantages and disadvantages etc. OECD work suggests a mix of the two is best etc. Involvement of all is the key etc. OECD member countries should:
Ensure organisations adoption of privacy policies through internal review and linking to OECD site.
Ensure organisations post privacy policies online by encouraging them to do so and auditing them.
Ensure availability of enforcement and redress mechanisms in case of breach of privacy policies by encouraging the use of online alternative dispute mechanisms and actively fostering compliance with privacy policies by raising organisations' awareness..."
Sorry folks but I stopped at that point. This document does not actually appear to be saying anything at all about privacy or information flows in practice. Some people I have a great deal of respect for, like Ian Lloyd at the University of Strathclyde, are noted as having been involved in its production, so I'm sure there is more to it than the first 30 pages appear to promise (Prof Lloyd is mentioned re Chpt 14) but I'm going to allow somebody else to do the leg work on extracting the relevant information.
You could be forgiven for going "Pardon?" at that point.
Chapter 3, pages 27 - 35 gives the meat of the guidelines.
Legislation and self regulation each have advantages and disadvantages etc. OECD work suggests a mix of the two is best etc. Involvement of all is the key etc. OECD member countries should:
Ensure organisations adoption of privacy policies through internal review and linking to OECD site.
Ensure organisations post privacy policies online by encouraging them to do so and auditing them.
Ensure availability of enforcement and redress mechanisms in case of breach of privacy policies by encouraging the use of online alternative dispute mechanisms and actively fostering compliance with privacy policies by raising organisations' awareness..."
Sorry folks but I stopped at that point. This document does not actually appear to be saying anything at all about privacy or information flows in practice. Some people I have a great deal of respect for, like Ian Lloyd at the University of Strathclyde, are noted as having been involved in its production, so I'm sure there is more to it than the first 30 pages appear to promise (Prof Lloyd is mentioned re Chpt 14) but I'm going to allow somebody else to do the leg work on extracting the relevant information.
Can't wait to see the reaction of the libertarians to the news that a French court has fined AOL for 21 abusive and 11 illegal contract terms. It will be the usual outrage I would expect.
"the contracts said AOL could break the agreement without warning, while customers had no way of ending the relationship without paying a penalty."
'By their own', 'hoist' and 'petard' come to mind but not necessarily in that order.
"the contracts said AOL could break the agreement without warning, while customers had no way of ending the relationship without paying a penalty."
'By their own', 'hoist' and 'petard' come to mind but not necessarily in that order.
Cory Doctorow gave a great speech at Microsoft yesterday about digital rights management (DRM). A taster
"Here's what I'm here to convince you of:
1. That DRM systems don't work
2. That DRM systems are bad for society
3. That DRM systems are bad for business
4. That DRM systems are bad for artists
5. That DRM is a bad business-move for MSFT"
And that was just for starters. It's a bit esoteric if you have not been following the drm and copyright wars but still well worth a read.
"Cryptography -- secret writing -- is the practice of keeping
secrets. It involves three parties: a sender, a receiver and an
attacker (actually, there can be more attackers, senders and
recipients, but let's keep this simple). We usually call these
people Alice, Bob and Carol...
...with dual-key crypto it becomes a lot easier for Alice and Bob to keep their keys secret from Carol, even if they've never met...
...Now, let's apply this to DRM.
In DRM, the attacker is *also the recipient*. It's not Alice and
Bob and Carol, it's just Alice and Bob. Alice sells Bob a DVD.
She sells Bob a DVD player. The DVD has a movie on it -- say,
Pirates of the Caribbean -- and it's enciphered with an algorithm
called CSS -- Content Scrambling System. The DVD player has a CSS
un-scrambler.
Now, let's take stock of what's a secret here: the cipher is
well-known. The ciphertext is most assuredly in enemy hands, arrr.
So what? As long as the key is secret from the attacker, we're
golden.
But there's the rub. Alice wants Bob to buy Pirates of the
Caribbean from her. Bob will only buy Pirates of the Caribbean if
he can descramble the CSS-encrypted VOB -- video object -- on his
DVD player. Otherwise, the disc is only useful to Bob as a
drinks-coaster. So Alice has to provide Bob -- the attacker --
with the key, the cipher and the ciphertext.
Hilarity ensues...
...At the end of the day,
all DRM systems share a common vulnerability: they provide their
attackers with ciphertext, the cipher and the key. At this point,
the secret isn't a secret anymore...
...Here's the social reason that DRM fails: keeping an honest user
honest is like keeping a tall user tall. DRM vendors tell us that
their technology is meant to be proof against average users, not
organized criminal gangs like the Ukranian pirates who stamp out
millions of high-quality counterfeits. It's not meant to be proof
against sophisticated college kids. It's not meant to be proof
against anyone who knows how to edit her registry, or hold down
the shift key at the right moment, or use a search engine. At the
end of the day, the user DRM is meant to defend against is the
most unsophisticated and least capable among us."
Next he tells a story of an honest user a young mum who to avoid the kids getting jam on an expensive DVD tries to make a VHS copy, so that when that gets thoroughly kidified she can copy it again for their use and not have to fork out for another expensive copy of the DVD. This story rings very true with me. I've had to replace one of my son's favourite CDs four times in six years and I only count myself lucky that it has still been commercially available. Cory goes on:
"what this person will do in the long run: she'll find out about
Kazaa and the next time she wants to get a movie for the kids,
she'll download it from the net and burn it for them.
In order to delay that day for as long as possible, our lawmakers
and big rightsholder interests have come up with a disastrous
policy called anticircumvention.
Here's how anticircumvention works: if you put a lock -- an
access control -- around a copyrighted work, it is illegal to
break that lock. It's illegal to make a tool that breaks that
lock. It's illegal to tell someone how to make that tool. It's
illegal to tell someone where she can find out how to make that
tool.
Remember Schneier's Law? Anyone can come up with a security
system so clever that he can't see its flaws. The only way to
find the flaws in security is to disclose the system's workings
and invite public feedback. But now we live in a world where any
cipher used to fence off a copyrighted work is off-limits to that
kind of feedback. That's something that a Princeton engineering
prof named Ed Felten discovered when he submitted a paper to an
academic conference on the failings in the Secure Digital Music
Initiative, a watermarking scheme proposed by the recording
industry. The RIAA responded by threatening to sue his ass if he
tried it. We fought them because Ed is the kind of client that
impact litigators love: unimpeachable and clean-cut and the RIAA
folded. Lucky Ed. Maybe the next guy isn't so lucky...
...Here are the two most important things to know about computers
and the Internet:
1. A computer is a machine for rearranging bits
2. The Internet is a machine for moving bits from one place to
another very cheaply and quickly
Any new medium that takes hold on the Internet and with computers
will embrace these two facts, not regret them. A newspaper press
is a machine for spitting out cheap and smeary newsprint at
speed: if you try to make it output fine art lithos, you'll get
junk. If you try to make it output newspapers, you'll get the
basis for a free society.
And so it is with the Internet...
...
New media don't succeed because they're like the only media, only
better: they succeed because they're worse than the old media at
the stuff the old media is good at, and better at the stuff the
old media are bad at. Books are good at being paperwhite,
high-resolution, low-infrastructure, cheap and disposable. Ebooks
are good at being everywhere in the world at the same time for
free in a form that is so malleable that you can just pastebomb
it into your IM session or turn it into a page-a-day mailing
list.
The only really successful epublishing -- I mean, hundreds of
thousands, millions of copies distributed and read -- is the
bookwarez scene, where scanned-and-OCR'd books are distributed on
the darknet. The only legit publishers with any success at
epublishing are the ones whose books cross the Internet without
technological fetter: publishers like Baen Books and my own, Tor,
who are making some or all of their catalogs available in ASCII
and HTML and PDF.
The hardware-dependent ebooks, the DRM use-and-copy-restricted
ebooks, they're cratering. Sales measured in the tens, sometimes
the hundreds. Science fiction is a niche business, but when
you're selling copies by the ten, that's not even a business,
it's a hobby. "
And so he continues but you should read the original. It doesn't suffer from the indented formatting translation by Blogger. I'm going to have to do something about this template and get and RSS feed plus commenting enabled but time pressures are against me at the moment...
"Here's what I'm here to convince you of:
1. That DRM systems don't work
2. That DRM systems are bad for society
3. That DRM systems are bad for business
4. That DRM systems are bad for artists
5. That DRM is a bad business-move for MSFT"
And that was just for starters. It's a bit esoteric if you have not been following the drm and copyright wars but still well worth a read.
"Cryptography -- secret writing -- is the practice of keeping
secrets. It involves three parties: a sender, a receiver and an
attacker (actually, there can be more attackers, senders and
recipients, but let's keep this simple). We usually call these
people Alice, Bob and Carol...
...with dual-key crypto it becomes a lot easier for Alice and Bob to keep their keys secret from Carol, even if they've never met...
...Now, let's apply this to DRM.
In DRM, the attacker is *also the recipient*. It's not Alice and
Bob and Carol, it's just Alice and Bob. Alice sells Bob a DVD.
She sells Bob a DVD player. The DVD has a movie on it -- say,
Pirates of the Caribbean -- and it's enciphered with an algorithm
called CSS -- Content Scrambling System. The DVD player has a CSS
un-scrambler.
Now, let's take stock of what's a secret here: the cipher is
well-known. The ciphertext is most assuredly in enemy hands, arrr.
So what? As long as the key is secret from the attacker, we're
golden.
But there's the rub. Alice wants Bob to buy Pirates of the
Caribbean from her. Bob will only buy Pirates of the Caribbean if
he can descramble the CSS-encrypted VOB -- video object -- on his
DVD player. Otherwise, the disc is only useful to Bob as a
drinks-coaster. So Alice has to provide Bob -- the attacker --
with the key, the cipher and the ciphertext.
Hilarity ensues...
...At the end of the day,
all DRM systems share a common vulnerability: they provide their
attackers with ciphertext, the cipher and the key. At this point,
the secret isn't a secret anymore...
...Here's the social reason that DRM fails: keeping an honest user
honest is like keeping a tall user tall. DRM vendors tell us that
their technology is meant to be proof against average users, not
organized criminal gangs like the Ukranian pirates who stamp out
millions of high-quality counterfeits. It's not meant to be proof
against sophisticated college kids. It's not meant to be proof
against anyone who knows how to edit her registry, or hold down
the shift key at the right moment, or use a search engine. At the
end of the day, the user DRM is meant to defend against is the
most unsophisticated and least capable among us."
Next he tells a story of an honest user a young mum who to avoid the kids getting jam on an expensive DVD tries to make a VHS copy, so that when that gets thoroughly kidified she can copy it again for their use and not have to fork out for another expensive copy of the DVD. This story rings very true with me. I've had to replace one of my son's favourite CDs four times in six years and I only count myself lucky that it has still been commercially available. Cory goes on:
"what this person will do in the long run: she'll find out about
Kazaa and the next time she wants to get a movie for the kids,
she'll download it from the net and burn it for them.
In order to delay that day for as long as possible, our lawmakers
and big rightsholder interests have come up with a disastrous
policy called anticircumvention.
Here's how anticircumvention works: if you put a lock -- an
access control -- around a copyrighted work, it is illegal to
break that lock. It's illegal to make a tool that breaks that
lock. It's illegal to tell someone how to make that tool. It's
illegal to tell someone where she can find out how to make that
tool.
Remember Schneier's Law? Anyone can come up with a security
system so clever that he can't see its flaws. The only way to
find the flaws in security is to disclose the system's workings
and invite public feedback. But now we live in a world where any
cipher used to fence off a copyrighted work is off-limits to that
kind of feedback. That's something that a Princeton engineering
prof named Ed Felten discovered when he submitted a paper to an
academic conference on the failings in the Secure Digital Music
Initiative, a watermarking scheme proposed by the recording
industry. The RIAA responded by threatening to sue his ass if he
tried it. We fought them because Ed is the kind of client that
impact litigators love: unimpeachable and clean-cut and the RIAA
folded. Lucky Ed. Maybe the next guy isn't so lucky...
...Here are the two most important things to know about computers
and the Internet:
1. A computer is a machine for rearranging bits
2. The Internet is a machine for moving bits from one place to
another very cheaply and quickly
Any new medium that takes hold on the Internet and with computers
will embrace these two facts, not regret them. A newspaper press
is a machine for spitting out cheap and smeary newsprint at
speed: if you try to make it output fine art lithos, you'll get
junk. If you try to make it output newspapers, you'll get the
basis for a free society.
And so it is with the Internet...
...
New media don't succeed because they're like the only media, only
better: they succeed because they're worse than the old media at
the stuff the old media is good at, and better at the stuff the
old media are bad at. Books are good at being paperwhite,
high-resolution, low-infrastructure, cheap and disposable. Ebooks
are good at being everywhere in the world at the same time for
free in a form that is so malleable that you can just pastebomb
it into your IM session or turn it into a page-a-day mailing
list.
The only really successful epublishing -- I mean, hundreds of
thousands, millions of copies distributed and read -- is the
bookwarez scene, where scanned-and-OCR'd books are distributed on
the darknet. The only legit publishers with any success at
epublishing are the ones whose books cross the Internet without
technological fetter: publishers like Baen Books and my own, Tor,
who are making some or all of their catalogs available in ASCII
and HTML and PDF.
The hardware-dependent ebooks, the DRM use-and-copy-restricted
ebooks, they're cratering. Sales measured in the tens, sometimes
the hundreds. Science fiction is a niche business, but when
you're selling copies by the ten, that's not even a business,
it's a hobby. "
And so he continues but you should read the original. It doesn't suffer from the indented formatting translation by Blogger. I'm going to have to do something about this template and get and RSS feed plus commenting enabled but time pressures are against me at the moment...
Nice Guardian article on biometrics, Biometrics - great hope for world security or triumph for Big Brother?
Liberty spokesman,Barry Hugill is quoted: "Once you begin to compile massive databases it's a matter of common sense that you are going to get the most horrendous mix-ups, with the wrong people being accused and the the wrong information being shared around the world."
Law enforcement must have enough technically well trained and experienced people and the best available technology to fight the bad guys and there also has to be checks and balances in the system. There is not a computer scientist in the world who knows how to create, secure and maintain the integrity in practice of massive international databases of the kind that are being discussed here. Blind faith in the technology is not going to work in this instance. The current state of affairs neither re-assures me that we have enough technically trained and experienced law enforcement personel or the best available technology appropriately focussed on the job of catching the real bad guys. It is a tough, complex systemic problem and it will not be addressed by an illusion that it is being tackled through huge investment in technologies that don't work
Liberty spokesman,Barry Hugill is quoted: "Once you begin to compile massive databases it's a matter of common sense that you are going to get the most horrendous mix-ups, with the wrong people being accused and the the wrong information being shared around the world."
Law enforcement must have enough technically well trained and experienced people and the best available technology to fight the bad guys and there also has to be checks and balances in the system. There is not a computer scientist in the world who knows how to create, secure and maintain the integrity in practice of massive international databases of the kind that are being discussed here. Blind faith in the technology is not going to work in this instance. The current state of affairs neither re-assures me that we have enough technically trained and experienced law enforcement personel or the best available technology appropriately focussed on the job of catching the real bad guys. It is a tough, complex systemic problem and it will not be addressed by an illusion that it is being tackled through huge investment in technologies that don't work
Thursday, June 17, 2004
Senator Orrin Hatch, praised in the final chapter of Larry Lessig's The Future of Ideas, is proposing the INDUCE Act, the latest in a long line of attempts at further draconian intellectual property legisation. I doubt Larry will be praising this initiative. I can't do better than Susan Crawford on this:
"The logic is that P2P applications inevitably lead to exploitation of children. With me so far? So the act is called the "Inducement Devolves into Unlawful Child Exploitation Act." I'm not even sure that's how "devolves" should be used. But the crimes here go far beyond the title.
The Act (to be proposed tomorrow by songwriter Sen. Hatch and others) amends the copyright law to say that anyone who "induces" copyright infringement is himself/itself an infringer.
"Induce" means intentionally aids, abets, counsels, or procures. So you can't even hire a lawyer if you're doing something risky.
This is amazing. Now we're waaaaaay beyond contributory and vicarious theories of liability, which are court-created and pretty darn broad on their own. See Napster 9th Circuit, Aimster 7th Circuit. It's not even clear what the limit to this is -- "aids" could mean that even something that would have been fair use under the Sony Betamax decision is now an illegal inducement.
And no one can talk to you if they think there's the slightest risk of copyright infringement liability.
We're back to the CBPTDA -- another hugely broad way of making sure that no unauthorized machines ever enter into our lives. If there was ever a moment to organize (see prior post) this might be it."
The CBDTPA was the now defunct proposal of then Sen Hollings in 2002, the Consumer Broadband and Digital Television Promotion Act wonderfully parodied by the EFF. Susan got the initials slightly out of synch but who can blame her. But the
"Inducement Devolves into Unlawful Child Exploitation Act", in the words of another well known American "You cannot be serious!"
"The logic is that P2P applications inevitably lead to exploitation of children. With me so far? So the act is called the "Inducement Devolves into Unlawful Child Exploitation Act." I'm not even sure that's how "devolves" should be used. But the crimes here go far beyond the title.
The Act (to be proposed tomorrow by songwriter Sen. Hatch and others) amends the copyright law to say that anyone who "induces" copyright infringement is himself/itself an infringer.
"Induce" means intentionally aids, abets, counsels, or procures. So you can't even hire a lawyer if you're doing something risky.
This is amazing. Now we're waaaaaay beyond contributory and vicarious theories of liability, which are court-created and pretty darn broad on their own. See Napster 9th Circuit, Aimster 7th Circuit. It's not even clear what the limit to this is -- "aids" could mean that even something that would have been fair use under the Sony Betamax decision is now an illegal inducement.
And no one can talk to you if they think there's the slightest risk of copyright infringement liability.
We're back to the CBPTDA -- another hugely broad way of making sure that no unauthorized machines ever enter into our lives. If there was ever a moment to organize (see prior post) this might be it."
The CBDTPA was the now defunct proposal of then Sen Hollings in 2002, the Consumer Broadband and Digital Television Promotion Act wonderfully parodied by the EFF. Susan got the initials slightly out of synch but who can blame her. But the
"Inducement Devolves into Unlawful Child Exploitation Act", in the words of another well known American "You cannot be serious!"
Apology
I have to apologise for some of the problems people have been seeing on this blog in recent weeks - in particular (but not limited to) double postings and broken links.
I've been trying to do my posting via my preferred browser, Opera. Unfortunately, however, it doesn't seem to interact too well with the Blogger site leading to the kinds of problems people have noticed, so as of today I'm giving up and sadly reverting to IE for weblog postings.
I have to apologise for some of the problems people have been seeing on this blog in recent weeks - in particular (but not limited to) double postings and broken links.
I've been trying to do my posting via my preferred browser, Opera. Unfortunately, however, it doesn't seem to interact too well with the Blogger site leading to the kinds of problems people have noticed, so as of today I'm giving up and sadly reverting to IE for weblog postings.
It seems I may have made a mistake when I reported recently that the EU Commission and Council of ministers had managed to see off the EU Parliament's court challenge to the decision on transfer of airline passenger data to the US.
According to the latest EDR-gram the legal affairs committee of the EU parliament (JURI) yesterday renewed their decision to take the Commission and the Council of ministers to the European Court of Justice on the issue.
"EU Parliament renews decision to take Commission to court ============================================================
The Legal Affairs Committee of the European Parliament (JURI) decided today to take the European Commission as well as the Council to court over the final agreement to transfer PNR data to the US without adequate guarantees for data protection.
The committee, which met today (16 June 2004) for an extraordinary meeting during the Parliament's present recession, voted to call upon the Luxembourg Court to defer the Commission's so-called adequacy finding. This finding claims that the data will find the same level of protection in the U.S. as in the EU. The committee also voted to take the international agreement to court that was signed by the EU Council with the U.S. Department of Homeland Security on 28 May 2004 (see EDRi-gram 2.11). Today's vote was taken with a two-thirds majority concerning the adequacy finding and 19 to 14 votes concerning the international agreement. This is an even clearer majority than in former votes on the same issue.
The JURI committee's decision must still be confirmed by the EU Parliament's Group leaders in a meeting this evening, but it is widely considered that this confirmation is only a formality after no less than six votes in the Parliament to stop the ongoing transfer.
There are however also indications that the Parliament's outgoing President, Pat Cox, has been trying to turn over the wide consensus against the transfer within the EU Parliament. Before the vote in the Committee, a member of the Parliament's judicial service, which is attached to the President's office and obliged to be politically neutral, tried to convince MEPs in a 25-minute speech that there was no legal basis for taking the other two EU institutions to court. Mr. Cox is one of the possible candidates for the presidency of the EU Commission and could thus become subject to an EU Court of Justice case himself. Outgoing Italian Radical MEP Marco Cappato criticised the Judicial Services' intervention as based 'more on political than on legal grounds' and therefore 'an abuse'.
EU-US air data row hots up (16.06.2004) http://www.eupolitix.com/EN/News/200406/8f1cbb0f-bc0c-4583-b514-4b029ed1f942.htm
PNR data deal signed by European Commission (02.06.2004) http://www.edri.org/cgi-bin/index?id=000100000151
(Contribution by Andreas Dietl, EDRI EU affairs director)"
Update: The FT have picked up the story.
According to the latest EDR-gram the legal affairs committee of the EU parliament (JURI) yesterday renewed their decision to take the Commission and the Council of ministers to the European Court of Justice on the issue.
"EU Parliament renews decision to take Commission to court ============================================================
The Legal Affairs Committee of the European Parliament (JURI) decided today to take the European Commission as well as the Council to court over the final agreement to transfer PNR data to the US without adequate guarantees for data protection.
The committee, which met today (16 June 2004) for an extraordinary meeting during the Parliament's present recession, voted to call upon the Luxembourg Court to defer the Commission's so-called adequacy finding. This finding claims that the data will find the same level of protection in the U.S. as in the EU. The committee also voted to take the international agreement to court that was signed by the EU Council with the U.S. Department of Homeland Security on 28 May 2004 (see EDRi-gram 2.11). Today's vote was taken with a two-thirds majority concerning the adequacy finding and 19 to 14 votes concerning the international agreement. This is an even clearer majority than in former votes on the same issue.
The JURI committee's decision must still be confirmed by the EU Parliament's Group leaders in a meeting this evening, but it is widely considered that this confirmation is only a formality after no less than six votes in the Parliament to stop the ongoing transfer.
There are however also indications that the Parliament's outgoing President, Pat Cox, has been trying to turn over the wide consensus against the transfer within the EU Parliament. Before the vote in the Committee, a member of the Parliament's judicial service, which is attached to the President's office and obliged to be politically neutral, tried to convince MEPs in a 25-minute speech that there was no legal basis for taking the other two EU institutions to court. Mr. Cox is one of the possible candidates for the presidency of the EU Commission and could thus become subject to an EU Court of Justice case himself. Outgoing Italian Radical MEP Marco Cappato criticised the Judicial Services' intervention as based 'more on political than on legal grounds' and therefore 'an abuse'.
EU-US air data row hots up (16.06.2004) http://www.eupolitix.com/EN/News/200406/8f1cbb0f-bc0c-4583-b514-4b029ed1f942.htm
PNR data deal signed by European Commission (02.06.2004) http://www.edri.org/cgi-bin/index?id=000100000151
(Contribution by Andreas Dietl, EDRI EU affairs director)"
Update: The FT have picked up the story.
"A Better Ballot Box" by Rebecca Mercuri, a highly respected electronic voting expert, from Bryn Mawr College explains very clearly the problems with electronic voting. She concludes:
"An observer of voting technology once remarked: "If you think technology can solve our voting problems, then you don't understand the problems and you don't understand the technology." Computerization alone cannot improve elections. Those designing and those buying election systems must be aware of their inherent limitations, mindful of the sometimes conflicting needs for privacy, auditability, and security in the election process, and willing to seek out-of-the-(ballot)-box solutions."
Incidently Rebecca Mercuri was proposing voter verified paper trails for electronic voting machines over ten years ago.
Rebecca was one of a select group of delegates invited to take part in Harvard University's Kennedy School of Government and National Science Foundation "Voting, Vote Capture, and Vote Counting" Digital Voting Symposium a couple of weeks ago.
Ron Rivest of RSA public key encryption fame was another in attendance and someone who sees the difficulties with electronic voting as a challenge which can be overcome with sufficient thought and effort.
"We see that innovations in voting systems are continuing, and will continue. We need to manage well this process of continual improvement. I believe that security in voting systems can be substantially improved. While some current DRE [direct recording electronic] systems definitely seem a step backwards in terms of security, it does appear probable that we can eventually have highly secure electronic voting systems, with a reduced or eliminated need to trust the voting machine equipment and software. We will be developing assurance and certification for the election results, rather than for the voting machines. While paper may not go away, we may be able to eventually have secure electronic ballots, rather than paper ballots."
The organisers of the symposium have drawn up a set of best practices that they believe fairly summarise the overall conclusions of the event. I hope they won't mind me reprinting these in full here. They deserve the widest possible circulation.
Certain immediate steps must be taken.
Election Assistance Commission and National Institute of Standards and Technology open standards must be developed and implemented.
The process is even more important than the underlying technology.
The educational process for given technologies must follow a "chain of trust" where the election workers trust their trainers and are trusted by the public.
Poll workers should be well chosen from a motivated pool with incentives, and monetary incentives have proven to work. Poll workers are more important than the technology.
Poll workers should be well trained to fully understand the technology and how to handle contingencies.
Poll workers should not have to rely solely on the vendors to address observed errors.
Speed and accuracy in the process are both achievable, but not simultaneously possible. The public should be educated about the distinction between the speed that allows immediate returns, and the accuracy required in the official tally.
There should be adequate time for determining the official tally.
There should be provisional voting mechanisms, and adequate time to evaluate provisional votes for the final tally.
A hybrid of paper and electronic systems provides the most effective voting system.
Electronic interfaces can meet the widest range of accessibility needs.
Electronic interfaces enable customized ballots by zip code, party, or disability.
Voter examination of a paper ballot allows the greatest degree of confidence that the ballot was cast as intended.
A paper ballot, when handled properly, allows a robust audit trail for a recount to ensure that the ballot was counted as cast.
Hybrid systems can be designed to accommodate provisional arrangements and contingencies for equipment failure. There are many possible implementations.
Good voting systems require good design standards.
There is no single voting interface that can meet everyone's needs.
An untrained voter should be able to know when voting equipment fails.
Access is critical: not to a specific, single technology, but to the ability to vote in a fashion that provides full civil rights.
Rigorous testing is needed for all voting system components to ensure security, reliability and usability.
Even with full auditing of each vote, testing for usability and reliability remain critical.
Openness of a voting process is critical for the perception of legitimacy of that process.
All security issues should be fully disclosed, although allowing vendors a limited, fixed time between notification and public disclosure could foster more public trust.
If underlying mechanics or software are not in the public domain, they must at least be available for inspection by the larger security research community.
The voting technology acquisition process should be open for public scrutiny from constituents.
The voting technology acquisition process should be open to allow jurisdictions to learn from each other; to be specific, records of difficulties should be made available to all election officials.
Election systems must have built-in auditing capabilities.
The reconciliation procedure must be clear, precise, authoritative, and binding.
The cast ballot must follow a "Chain of Custody" from the moment it is cast to the moment the vote is entered into the final official tally. This chain must be subject to audit and oversight at each step regardless of technology.
If some metric of voting irregularity is exceeded in a given jurisdiction, a court-supervised manual recount should be required.
Auditing should not be implemented by a vendor affiliated with the original system.
The general approach to building and implementing elections processes must carefully targeted.
Policymakers should first focus on the overall election process before selecting a specific technology. However, process details must then be tailored to meet the requirements of each specific technology. Technology neutral policies are inadequate in elections.
Policy makers must specify desirable priorities before designing an election system and its technologies. They must identify the problems they wish to solve and how each proposed solution will solve them.
There is an inevitable trade-off between authentication of voters and access. Requiring greater proof of the right to vote will prevent some from voting; removing any requirement for proof will allow those without the right to vote to cast ballot.
Elections and the surrounding systems should be explicitly designed to handle crises. Policy makers and elections officials should assume in every case that there will be a contested recount and plan accordingly.
Given that no voting system can ever be perfect it is crucial to incorporate technologically appropriate risk management tools into the design and evaluation of voting systems and implementation strategies.
"An observer of voting technology once remarked: "If you think technology can solve our voting problems, then you don't understand the problems and you don't understand the technology." Computerization alone cannot improve elections. Those designing and those buying election systems must be aware of their inherent limitations, mindful of the sometimes conflicting needs for privacy, auditability, and security in the election process, and willing to seek out-of-the-(ballot)-box solutions."
Incidently Rebecca Mercuri was proposing voter verified paper trails for electronic voting machines over ten years ago.
Rebecca was one of a select group of delegates invited to take part in Harvard University's Kennedy School of Government and National Science Foundation "Voting, Vote Capture, and Vote Counting" Digital Voting Symposium a couple of weeks ago.
Ron Rivest of RSA public key encryption fame was another in attendance and someone who sees the difficulties with electronic voting as a challenge which can be overcome with sufficient thought and effort.
"We see that innovations in voting systems are continuing, and will continue. We need to manage well this process of continual improvement. I believe that security in voting systems can be substantially improved. While some current DRE [direct recording electronic] systems definitely seem a step backwards in terms of security, it does appear probable that we can eventually have highly secure electronic voting systems, with a reduced or eliminated need to trust the voting machine equipment and software. We will be developing assurance and certification for the election results, rather than for the voting machines. While paper may not go away, we may be able to eventually have secure electronic ballots, rather than paper ballots."
The organisers of the symposium have drawn up a set of best practices that they believe fairly summarise the overall conclusions of the event. I hope they won't mind me reprinting these in full here. They deserve the widest possible circulation.
Certain immediate steps must be taken.
Election Assistance Commission and National Institute of Standards and Technology open standards must be developed and implemented.
The process is even more important than the underlying technology.
The educational process for given technologies must follow a "chain of trust" where the election workers trust their trainers and are trusted by the public.
Poll workers should be well chosen from a motivated pool with incentives, and monetary incentives have proven to work. Poll workers are more important than the technology.
Poll workers should be well trained to fully understand the technology and how to handle contingencies.
Poll workers should not have to rely solely on the vendors to address observed errors.
Speed and accuracy in the process are both achievable, but not simultaneously possible. The public should be educated about the distinction between the speed that allows immediate returns, and the accuracy required in the official tally.
There should be adequate time for determining the official tally.
There should be provisional voting mechanisms, and adequate time to evaluate provisional votes for the final tally.
A hybrid of paper and electronic systems provides the most effective voting system.
Electronic interfaces can meet the widest range of accessibility needs.
Electronic interfaces enable customized ballots by zip code, party, or disability.
Voter examination of a paper ballot allows the greatest degree of confidence that the ballot was cast as intended.
A paper ballot, when handled properly, allows a robust audit trail for a recount to ensure that the ballot was counted as cast.
Hybrid systems can be designed to accommodate provisional arrangements and contingencies for equipment failure. There are many possible implementations.
Good voting systems require good design standards.
There is no single voting interface that can meet everyone's needs.
An untrained voter should be able to know when voting equipment fails.
Access is critical: not to a specific, single technology, but to the ability to vote in a fashion that provides full civil rights.
Rigorous testing is needed for all voting system components to ensure security, reliability and usability.
Even with full auditing of each vote, testing for usability and reliability remain critical.
Openness of a voting process is critical for the perception of legitimacy of that process.
All security issues should be fully disclosed, although allowing vendors a limited, fixed time between notification and public disclosure could foster more public trust.
If underlying mechanics or software are not in the public domain, they must at least be available for inspection by the larger security research community.
The voting technology acquisition process should be open for public scrutiny from constituents.
The voting technology acquisition process should be open to allow jurisdictions to learn from each other; to be specific, records of difficulties should be made available to all election officials.
Election systems must have built-in auditing capabilities.
The reconciliation procedure must be clear, precise, authoritative, and binding.
The cast ballot must follow a "Chain of Custody" from the moment it is cast to the moment the vote is entered into the final official tally. This chain must be subject to audit and oversight at each step regardless of technology.
If some metric of voting irregularity is exceeded in a given jurisdiction, a court-supervised manual recount should be required.
Auditing should not be implemented by a vendor affiliated with the original system.
The general approach to building and implementing elections processes must carefully targeted.
Policymakers should first focus on the overall election process before selecting a specific technology. However, process details must then be tailored to meet the requirements of each specific technology. Technology neutral policies are inadequate in elections.
Policy makers must specify desirable priorities before designing an election system and its technologies. They must identify the problems they wish to solve and how each proposed solution will solve them.
There is an inevitable trade-off between authentication of voters and access. Requiring greater proof of the right to vote will prevent some from voting; removing any requirement for proof will allow those without the right to vote to cast ballot.
Elections and the surrounding systems should be explicitly designed to handle crises. Policy makers and elections officials should assume in every case that there will be a contested recount and plan accordingly.
Given that no voting system can ever be perfect it is crucial to incorporate technologically appropriate risk management tools into the design and evaluation of voting systems and implementation strategies.
Wednesday, June 16, 2004
In the wake of DirecTV's agreement with the EFF which I reported on yesterday, the 11th Circuit Court of Appeals has ruled that the company
can't sue people for "mere possession" of technology that might be used to freely access satellite broadcast signals. A cynic might suggest they saw it coming... but I wouldn't want to be seen as a cynic.
Findlaw has a link to the decision http://caselaw.findlaw.com/data2/circs/11th/0315313p.pdf
Acacia which has been quietly building a track record of success, suing pornographers and minor educational institutions for patent infringement, has decided the time is right to pick a fight with some of the big broadcasters. Acacia holds a patent on audio and visual transmission via the Net. The notion that anybody should get awarded such a patent is daft but it now gets to get tested by the big guys' lawyers.
can't sue people for "mere possession" of technology that might be used to freely access satellite broadcast signals. A cynic might suggest they saw it coming... but I wouldn't want to be seen as a cynic.
Findlaw has a link to the decision http://caselaw.findlaw.com/data2/circs/11th/0315313p.pdf
Acacia which has been quietly building a track record of success, suing pornographers and minor educational institutions for patent infringement, has decided the time is right to pick a fight with some of the big broadcasters. Acacia holds a patent on audio and visual transmission via the Net. The notion that anybody should get awarded such a patent is daft but it now gets to get tested by the big guys' lawyers.
A PhD student at Duke University has given what I would consider a pretty worrying analysis outlining the ease with which the electronic voting in November's presidential elections could be disrupted. He's entitled it President Nader.
Avi Rubin, meanwhile, who was one of those who brought the problems with electronic voting to public attention, has proposed an interesting challenge: he wants to know if a voting machine that was rigged in favour of a particular candidate could pass certification. What a good idea. Just like undercover agents testing the security at airports.
As Avi says, if a rigged machine makes it through the certifciation process in every state that it is tested, these machines need to be quickly eliminated from the election process.
Avi Rubin, meanwhile, who was one of those who brought the problems with electronic voting to public attention, has proposed an interesting challenge: he wants to know if a voting machine that was rigged in favour of a particular candidate could pass certification. What a good idea. Just like undercover agents testing the security at airports.
As Avi says, if a rigged machine makes it through the certifciation process in every state that it is tested, these machines need to be quickly eliminated from the election process.
The right way to use biometrics - Bruce Schneier is pleased to finally find someone thinking of an appropriate use for biometric technology - bioemtric IDs for airport employees.
" The strong suit of biometrics is authentication: is this person who he says he is. Issuing ID cards to people who require access to these sensitive areas is smart, and using biometrics to make those IDs harder to hack is smarter. There's no broad surveillance of the population; there are no civil liberties or privacy concerns.
And transportation employees are a weak link in airplane security. We're spending billions on passenger screening programs like CAPPS-II, but none of these measures will do any good if terrorists can just go around the systems. Current TSA policy is that airport workers can access secure areas of airports with no screening whatsoever except for a rudimentary background check. That includes the thousands of people who work for the stores and restaurants in airport terminals as well as the army of workers who clean and maintain aircraft, load baggage, and provide food service. Closing this massive security hole is a good idea.
All of this has to be balanced with cost, however. Issuing one million IDs, and probably tens of thousands of ID readers, isn't going to be cheap. But it would certainly give us more security, dollar for dollar, than yet another passenger security system.
Unfortunately, politicians tend to prefer security systems that affect broad swaths of the population. They like security that's visible; it demonstrates that they're serious about security and is more likely to get them votes. A security system for transportation workers, one that is largely hidden from view, is likely to garner less support than a more public system.
Let's hope U.S. lawmakers do the right thing regardless."
" The strong suit of biometrics is authentication: is this person who he says he is. Issuing ID cards to people who require access to these sensitive areas is smart, and using biometrics to make those IDs harder to hack is smarter. There's no broad surveillance of the population; there are no civil liberties or privacy concerns.
And transportation employees are a weak link in airplane security. We're spending billions on passenger screening programs like CAPPS-II, but none of these measures will do any good if terrorists can just go around the systems. Current TSA policy is that airport workers can access secure areas of airports with no screening whatsoever except for a rudimentary background check. That includes the thousands of people who work for the stores and restaurants in airport terminals as well as the army of workers who clean and maintain aircraft, load baggage, and provide food service. Closing this massive security hole is a good idea.
All of this has to be balanced with cost, however. Issuing one million IDs, and probably tens of thousands of ID readers, isn't going to be cheap. But it would certainly give us more security, dollar for dollar, than yet another passenger security system.
Unfortunately, politicians tend to prefer security systems that affect broad swaths of the population. They like security that's visible; it demonstrates that they're serious about security and is more likely to get them votes. A security system for transportation workers, one that is largely hidden from view, is likely to garner less support than a more public system.
Let's hope U.S. lawmakers do the right thing regardless."
The Commission for Racial Equality (CRE)is worried about the UK government's plans for a national ID card. They reckon it could cause a "great deal of unease" among ethnic minorities due to the potential for it to be used as a lever for racial abuse.
You might recall I mentioned some time ago that Mr Blunkett is kindly arranging for me and the rest of the UK-resident Irish diaspora to have a special ID card, unique to the Irish. Hmmm, why doesn't that fill me with confidence? I'd be interested to know the CRE's perspective on this.
You might recall I mentioned some time ago that Mr Blunkett is kindly arranging for me and the rest of the UK-resident Irish diaspora to have a special ID card, unique to the Irish. Hmmm, why doesn't that fill me with confidence? I'd be interested to know the CRE's perspective on this.
"CUTTING EDGE TECHNOLOGY TO MODERNISE UK BORDER CONTROL" shouts the Home Office press release.
"Cutting edge technology is set to revolutionise the UK's immigration controls, with the roll-out of a hi-tech iris recognition system to a number of key UK airports, Immigration Minister, Des Browne announced today.
The state-of-the-art system will store and verify the iris patterns of specially selected groups of travellers, giving watertight confirmation of their identity when they arrive in the UK. This will substantially increase security as well as speed their process through immigration control."
Complete nonsense. I'll say this slowly, Mr Browne, biometrics may be unique but they are not secret and the technology is not very reliable.
"Cutting edge technology is set to revolutionise the UK's immigration controls, with the roll-out of a hi-tech iris recognition system to a number of key UK airports, Immigration Minister, Des Browne announced today.
The state-of-the-art system will store and verify the iris patterns of specially selected groups of travellers, giving watertight confirmation of their identity when they arrive in the UK. This will substantially increase security as well as speed their process through immigration control."
Complete nonsense. I'll say this slowly, Mr Browne, biometrics may be unique but they are not secret and the technology is not very reliable.
Tuesday, June 15, 2004
The EU's Information society commissioner, Erkki Liikanen, has been appointed governor of the bank of Finland. he'll be leaving the Commission on 12 July.
Who comes next?
Who comes next?
Larry Lessig, who incidentally will be doing a short online visit to my Open University T182 course next week, is looking for stories to support the Stanford cyberlaw clinic case Kahle v Aschroft.
"To win the lawsuit, we need your help. We need more examples of people being burdened by these copyright-related barriers to the use of orphan works. You can help us if you have ever wanted to copy, distribute, perform, modify, sample, mash-up, or generally use an orphan work, but were prevented from doing so because:
The cost of trying to find the copyright holder was too high; or
You were unable to find the copyright holder; or
You were able to find the copyright holder and they refused to issue a license; or
You were able to find the copyright holder and you were issued a license, but you have a good story to tell about how difficult the process was."
"To win the lawsuit, we need your help. We need more examples of people being burdened by these copyright-related barriers to the use of orphan works. You can help us if you have ever wanted to copy, distribute, perform, modify, sample, mash-up, or generally use an orphan work, but were prevented from doing so because:
The cost of trying to find the copyright holder was too high; or
You were unable to find the copyright holder; or
You were able to find the copyright holder and they refused to issue a license; or
You were able to find the copyright holder and you were issued a license, but you have a good story to tell about how difficult the process was."
Tim Berners Lee has been deservedly awarded the Millennium Technology Prize from the Finnish Technology Award Foundation.
Always nice to see the good guys getting rewarded.
Always nice to see the good guys getting rewarded.
There's a major turnaround at the League of Women Voters. In the face of mass protest from the membership over their support for electronic voting machines with no paper trail, the leadership of the organisation has been forced into a U-turn. They have dropped their support for paperless voting and adopted a resolution in favour of ``voting systems and procedures that are secure, accurate, recountable and accessible.''
``My initial reaction is incredible joy and relief,'' said computer scientist Barbara Simons, 63, past president of the Association for Computing Machinery and a league member from a chapter in Palo Alto, Calif. ``This issue was threatening to split the league apart. ... The league now has a position that I feel very comfortable supporting.''
Well done Barbara (who I had the pleasure of meeting at a conference in Oxford in recent years) and your fellow protestors.
And meanwhile in Florida (wot won it for Bush, in Sun-speak)state officials have declared that "Touchscreen voting machines in 11 counties have a software flaw that could make manual recounts impossible in November's presidential election".
The story of electronic voting could fill more than one book.
``My initial reaction is incredible joy and relief,'' said computer scientist Barbara Simons, 63, past president of the Association for Computing Machinery and a league member from a chapter in Palo Alto, Calif. ``This issue was threatening to split the league apart. ... The league now has a position that I feel very comfortable supporting.''
Well done Barbara (who I had the pleasure of meeting at a conference in Oxford in recent years) and your fellow protestors.
And meanwhile in Florida (wot won it for Bush, in Sun-speak)state officials have declared that "Touchscreen voting machines in 11 counties have a software flaw that could make manual recounts impossible in November's presidential election".
The story of electronic voting could fill more than one book.
Looks as though the EFF and the Stanford Cyberlaw folks have had some success in getting through to satallite TV company DirecTV about their thousands of threats and lawsuits against innocent users of smart card technology.
"Over the past few years, DirecTV has orchestrated a nationwide legal campaign against hundreds of thousands of individuals, claiming that they were illegally intercepting its satellite TV signal. The company began its crusade by raiding smart card device distributors to obtain their customer lists, then sent over 170,000 demand letters to customers and eventually filed more than 24,000 federal lawsuits against them. Because DirecTV made little effort to distinguish legal uses of smart card technology from illegal ones, EFF and the CIS Cyberlaw Clinic received hundreds of calls and emails from panicked device purchasers.
n August 2003, EFF and CIS created the DirecTV Defense website to provide innocent users and their lawyers with the information necessary to defend themselves. The organizations also began a series of discussions with DirecTV about ways to reform its anti-piracy tactics and protect innocent consumers.
As a result, DirecTV has agreed to make several changes to its campaign. The company will no longer pursue people solely for purchasing smart card readers, writers, general-purpose programmers, and general-purpose emulators. It will maintain this policy into the forseeable future and file lawsuits only against people it suspects of actually pirating its satellite signal. DirecTV will, however, continue to investigate purchasers of devices that are often primarily designed for satellite signal interception, nicknamed “bootloaders” and “unloopers.”
DirecTV also agreed to change its pre-lawsuit demand letters to explain in detail how innocent recipients can get DirecTV to drop their cases. The company also promised that it will investigate every substantive claim of innocence it receives. If purchasers provide sufficient evidence demonstrating that they did not use their devices for signal theft, DirecTV will dismiss their cases. EFF and CIS will monitor reports of this process to confirm that innocent device purchasers are having their cases dismissed."
I suspect the EFF and Stanford people have ideological objections to DirecTV's 'guilty until you prove yourself innocent' stance but this constitutes major progress in the dispute and all concerned deserve credit.
"Over the past few years, DirecTV has orchestrated a nationwide legal campaign against hundreds of thousands of individuals, claiming that they were illegally intercepting its satellite TV signal. The company began its crusade by raiding smart card device distributors to obtain their customer lists, then sent over 170,000 demand letters to customers and eventually filed more than 24,000 federal lawsuits against them. Because DirecTV made little effort to distinguish legal uses of smart card technology from illegal ones, EFF and the CIS Cyberlaw Clinic received hundreds of calls and emails from panicked device purchasers.
n August 2003, EFF and CIS created the DirecTV Defense website to provide innocent users and their lawyers with the information necessary to defend themselves. The organizations also began a series of discussions with DirecTV about ways to reform its anti-piracy tactics and protect innocent consumers.
As a result, DirecTV has agreed to make several changes to its campaign. The company will no longer pursue people solely for purchasing smart card readers, writers, general-purpose programmers, and general-purpose emulators. It will maintain this policy into the forseeable future and file lawsuits only against people it suspects of actually pirating its satellite signal. DirecTV will, however, continue to investigate purchasers of devices that are often primarily designed for satellite signal interception, nicknamed “bootloaders” and “unloopers.”
DirecTV also agreed to change its pre-lawsuit demand letters to explain in detail how innocent recipients can get DirecTV to drop their cases. The company also promised that it will investigate every substantive claim of innocence it receives. If purchasers provide sufficient evidence demonstrating that they did not use their devices for signal theft, DirecTV will dismiss their cases. EFF and CIS will monitor reports of this process to confirm that innocent device purchasers are having their cases dismissed."
I suspect the EFF and Stanford people have ideological objections to DirecTV's 'guilty until you prove yourself innocent' stance but this constitutes major progress in the dispute and all concerned deserve credit.
My friend John Naughton is not impressed with WIPO's plans for a broadcasting treaty.
"When I first saw the draft (it was published in April), I assumed it must have been written by executives at Fox, NBC and other US TV networks while high on cocaine, because it read like a wish-list of everything a failing industry could want to protect it from the future.
It is a control-freak's charter. This is predictable, because an obsession with control has worked its way into the industry's DNA. Broadcasting is a few-to-many medium: a small number of content-providers decide what is to be offered, produce the content, and push it to passive consumers. Central to the broadcasting ethos is a desire to control the viewer, to restrict choice to the menus chosen by the industry - like Skinnerian pigeons pecking at coloured levers to obtain food...
...Experience over the last decade has shown us how established industries react when they are threatened by new technology. First they go into denial. Then they resort to legal countermeasures - which invariably fail. Finally they nobble legislators, seeking to persuade them to enact laws that will protect the old business models.
Which is where the draft broadcast treaty comes in. The great thing about Wipo, from the point of corporate lobbyists and their allies in certain national governments, is that it offers more bangs per buck. Instead of having to petition 50 or 100 national legislatures, you persuade Wipo to propose a draft treaty, which is submitted to a diplomatic conference and ratified. Then all the signatories are obliged to do what you want."
Cory Doctorow (cory@eff.org), Wendy Seltzer (wendy@eff.org) and David Tannenbaum (davidt@public-domain.org) attended the meeting that John refers to, as part of a public interest delegation and did a terrific job of making noteson the proceedings. The notes provide the first direct public insight into the making of international intellectual property regulations and makes fascinating reading.
"When I first saw the draft (it was published in April), I assumed it must have been written by executives at Fox, NBC and other US TV networks while high on cocaine, because it read like a wish-list of everything a failing industry could want to protect it from the future.
It is a control-freak's charter. This is predictable, because an obsession with control has worked its way into the industry's DNA. Broadcasting is a few-to-many medium: a small number of content-providers decide what is to be offered, produce the content, and push it to passive consumers. Central to the broadcasting ethos is a desire to control the viewer, to restrict choice to the menus chosen by the industry - like Skinnerian pigeons pecking at coloured levers to obtain food...
...Experience over the last decade has shown us how established industries react when they are threatened by new technology. First they go into denial. Then they resort to legal countermeasures - which invariably fail. Finally they nobble legislators, seeking to persuade them to enact laws that will protect the old business models.
Which is where the draft broadcast treaty comes in. The great thing about Wipo, from the point of corporate lobbyists and their allies in certain national governments, is that it offers more bangs per buck. Instead of having to petition 50 or 100 national legislatures, you persuade Wipo to propose a draft treaty, which is submitted to a diplomatic conference and ratified. Then all the signatories are obliged to do what you want."
Cory Doctorow (cory@eff.org), Wendy Seltzer (wendy@eff.org) and David Tannenbaum (davidt@public-domain.org) attended the meeting that John refers to, as part of a public interest delegation and did a terrific job of making noteson the proceedings. The notes provide the first direct public insight into the making of international intellectual property regulations and makes fascinating reading.
Looks as though the EFF and the Stanford Cyberlaw folks have had some success in getting through to satallite TV company DirecTV about their thousands of threats and lawsuits against innocent users of smart card technology.
"Over the past few years, DirecTV has orchestrated a nationwide legal campaign against hundreds of thousands of individuals, claiming that they were illegally intercepting its satellite TV signal. The company began its crusade by raiding smart card device distributors to obtain their customer lists, then sent over 170,000 demand letters to customers and eventually filed more than 24,000 federal lawsuits against them. Because DirecTV made little effort to distinguish legal uses of smart card technology from illegal ones, EFF and the CIS Cyberlaw Clinic received hundreds of calls and emails from panicked device purchasers.
n August 2003, EFF and CIS created the DirecTV Defense website to provide innocent users and their lawyers with the information necessary to defend themselves. The organizations also began a series of discussions with DirecTV about ways to reform its anti-piracy tactics and protect innocent consumers.
As a result, DirecTV has agreed to make several changes to its campaign. The company will no longer pursue people solely for purchasing smart card readers, writers, general-purpose programmers, and general-purpose emulators. It will maintain this policy into the forseeable future and file lawsuits only against people it suspects of actually pirating its satellite signal. DirecTV will, however, continue to investigate purchasers of devices that are often primarily designed for satellite signal interception, nicknamed “bootloaders” and “unloopers.”
DirecTV also agreed to change its pre-lawsuit demand letters to explain in detail how innocent recipients can get DirecTV to drop their cases. The company also promised that it will investigate every substantive claim of innocence it receives. If purchasers provide sufficient evidence demonstrating that they did not use their devices for signal theft, DirecTV will dismiss their cases. EFF and CIS will monitor reports of this process to confirm that innocent device purchasers are having their cases dismissed."
I suspect the EFF and Stanford people have ideological objections to DirecTV's 'guilty until you prove yourself innocent' stance but this constitutes major progress in the dispute and all concerned deserve credit.
"Over the past few years, DirecTV has orchestrated a nationwide legal campaign against hundreds of thousands of individuals, claiming that they were illegally intercepting its satellite TV signal. The company began its crusade by raiding smart card device distributors to obtain their customer lists, then sent over 170,000 demand letters to customers and eventually filed more than 24,000 federal lawsuits against them. Because DirecTV made little effort to distinguish legal uses of smart card technology from illegal ones, EFF and the CIS Cyberlaw Clinic received hundreds of calls and emails from panicked device purchasers.
n August 2003, EFF and CIS created the DirecTV Defense website to provide innocent users and their lawyers with the information necessary to defend themselves. The organizations also began a series of discussions with DirecTV about ways to reform its anti-piracy tactics and protect innocent consumers.
As a result, DirecTV has agreed to make several changes to its campaign. The company will no longer pursue people solely for purchasing smart card readers, writers, general-purpose programmers, and general-purpose emulators. It will maintain this policy into the forseeable future and file lawsuits only against people it suspects of actually pirating its satellite signal. DirecTV will, however, continue to investigate purchasers of devices that are often primarily designed for satellite signal interception, nicknamed “bootloaders” and “unloopers.”
DirecTV also agreed to change its pre-lawsuit demand letters to explain in detail how innocent recipients can get DirecTV to drop their cases. The company also promised that it will investigate every substantive claim of innocence it receives. If purchasers provide sufficient evidence demonstrating that they did not use their devices for signal theft, DirecTV will dismiss their cases. EFF and CIS will monitor reports of this process to confirm that innocent device purchasers are having their cases dismissed."
I suspect the EFF and Stanford people have ideological objections to DirecTV's 'guilty until you prove yourself innocent' stance but this constitutes major progress in the dispute and all concerned deserve credit.
Monday, June 14, 2004
The RIAA have added digital radio to their list of problem technology targets. They have to be really careful - they are going to eventually pick on one to many metaphorical straws and find their camel collapsing underneath.
Some libraries in New Hampshire are giving up the chance of federal funding because they don't want to install filter software on their computers.
"The New Hampshire Library Association encouraged forgoing federal funds in a statement posted on its Web site. It said filters block valuable information like research on breast cancer, sexually transmitted diseases and even Super Bowl XXX, and give a false sense of security."
Since this weblog has been subject to crude ship due to crude xxx filtering I'd say more power to their elbow!
Some libraries in New Hampshire are giving up the chance of federal funding because they don't want to install filter software on their computers.
"The New Hampshire Library Association encouraged forgoing federal funds in a statement posted on its Web site. It said filters block valuable information like research on breast cancer, sexually transmitted diseases and even Super Bowl XXX, and give a false sense of security."
Since this weblog has been subject to crude ship due to crude xxx filtering I'd say more power to their elbow!
Ernest Miller has another beauty on DRM: Incredibly Dumb DRM Tactics - iTunes Example #1
"So, here we have a DRM stripping program that is deliberately designed to encourage copyright compliance yet still enable fair use. What does Apple do? They deliberately make such stripping programs untenable...
...This helps encourage copyright compliance, how?"
Matthew Skala of CyberPatrol hack fame has a terrific essay on the colour (or lack of it) of bits and why lawyers and computer scientists don't understand each other. In the computer scientists' universe bits have no colour. In the lawyers' universe, bit must have colour because colour is what they base their reasoning on.
Larry Lessig tells, in the penultimate chapter of his first book Code and other laws of cyberspace, of a lesson he learnt from his uncle about the art of being a good lawyer. It's not about tactics or slight of hand but about using reason, through a story to persuade. Computer scientists and lawyers can communicate but each species needs to improve their use of reason through stories to persuade and help the other understand their respective universes.
"So, here we have a DRM stripping program that is deliberately designed to encourage copyright compliance yet still enable fair use. What does Apple do? They deliberately make such stripping programs untenable...
...This helps encourage copyright compliance, how?"
Matthew Skala of CyberPatrol hack fame has a terrific essay on the colour (or lack of it) of bits and why lawyers and computer scientists don't understand each other. In the computer scientists' universe bits have no colour. In the lawyers' universe, bit must have colour because colour is what they base their reasoning on.
Larry Lessig tells, in the penultimate chapter of his first book Code and other laws of cyberspace, of a lesson he learnt from his uncle about the art of being a good lawyer. It's not about tactics or slight of hand but about using reason, through a story to persuade. Computer scientists and lawyers can communicate but each species needs to improve their use of reason through stories to persuade and help the other understand their respective universes.
Thursday, June 10, 2004
The UK's Information Commissioner, Richard Thomas, has expressed his "increasing alarm" at the UK government's proposals for a national identity card.
The Home Office responded predictably by attacking the Commissioner and with the usual idiotic claptrap about modern ID cards in 21st century Britain.
"EU interior ministers have agreed that within 18 months passports from EU citizens will contain one or two pieces of biometric data, a digitised face photo (compulsory) and a fingerprint (optional)." Actually I've no problem with digital photos on passports. Now, the databases retaining the digital information from the photos and how, where, when, why and by whom they are deployed, they're different questions. No awkward questions like this are really going to get addressed by the likes of David Blunkett, though. Biometrics, the solution to all ills. Sigh.
The Home Office responded predictably by attacking the Commissioner and with the usual idiotic claptrap about modern ID cards in 21st century Britain.
"EU interior ministers have agreed that within 18 months passports from EU citizens will contain one or two pieces of biometric data, a digitised face photo (compulsory) and a fingerprint (optional)." Actually I've no problem with digital photos on passports. Now, the databases retaining the digital information from the photos and how, where, when, why and by whom they are deployed, they're different questions. No awkward questions like this are really going to get addressed by the likes of David Blunkett, though. Biometrics, the solution to all ills. Sigh.
Author Bruce Sterling says the net is a "god-awful mess" with virus writers, spammers and scammers and organised crime wreaking havoc.Author Bruce Sterling says the net is a "god-awful mess" with virus writers, spammers and scammers and organised crime wreaking havoc.Author Bruce Sterling says the net is a "god-awful mess" with virus writers, spammers and scammers and organised crime wreaking havoc.
"This is the birth of a genuine, no-kidding, for-profit ... multinational criminal underworld," he said. "I don't see any way it can't happen. We're going to end up getting pushed around by bands of international electronic thieves in a very similar way to the way we've been pushed around by gangs of international Mafia and international Mujahideen terrorists."
Sterling reckons we need a lot more tech savvy law enforcement forces on the ground and fewer dopey laws created by gesture politics.
I've always liked Sterling. Talks a lot of sense.
Meanwhile the EU are concentrating on introducing more laws to produce a uniform approach to combatting "cybercrime". Sigh. There's no such thing as "cybercrime" just crime. And crime is now facilitated by hi tech tools. We need sufficient numbers of law enforcement people enobled in the art and craft of new technology, not more inappropriate laws.
"This is the birth of a genuine, no-kidding, for-profit ... multinational criminal underworld," he said. "I don't see any way it can't happen. We're going to end up getting pushed around by bands of international electronic thieves in a very similar way to the way we've been pushed around by gangs of international Mafia and international Mujahideen terrorists."
Sterling reckons we need a lot more tech savvy law enforcement forces on the ground and fewer dopey laws created by gesture politics.
I've always liked Sterling. Talks a lot of sense.
Meanwhile the EU are concentrating on introducing more laws to produce a uniform approach to combatting "cybercrime". Sigh. There's no such thing as "cybercrime" just crime. And crime is now facilitated by hi tech tools. We need sufficient numbers of law enforcement people enobled in the art and craft of new technology, not more inappropriate laws.
Thursday, May 20, 2004
FIPR, Privacy International, Stand, Liberty, the Liberal Democrats and several other groups have launched a campaign to stop national identity cards in the UK. Their slogans (you need pithy slogans for a campaign these days):
An ID scheme won't stop terrorists
An ID scheme will not control illegal immigration
An ID scheme won't enable you to have anything you do not already have
An ID scheme will cost billions in taxpayers money and achieve nothing
An ID scheme will mean your most intimate details will be controlled by the government forever
An ID scheme will cost everyone £75 every year
More power to their elbow.
An ID scheme won't stop terrorists
An ID scheme will not control illegal immigration
An ID scheme won't enable you to have anything you do not already have
An ID scheme will cost billions in taxpayers money and achieve nothing
An ID scheme will mean your most intimate details will be controlled by the government forever
An ID scheme will cost everyone £75 every year
More power to their elbow.
The OECD working party on information security and privacy have published their report about biometrics. It's 66 pages and not bedtime reading unless you suffer from insomnia or have a really serious interest in biometrics and their possible implications. But it is worth pointing to their conclusion:
"The extent to which we are willing to incorporate statutory and policy and technological controls into these
systems and technologies will determine the extent to which they will improve our quality of life; providing convenience and security or conversely, the extent to which they threaten our liberty and freedom via actual or potential surveillance and control."
In other words, as with the deployment of all complex technologies, the devil is in the detail and it is time policy makers, like David Blunkett for example, started getting real about the detail.
"The extent to which we are willing to incorporate statutory and policy and technological controls into these
systems and technologies will determine the extent to which they will improve our quality of life; providing convenience and security or conversely, the extent to which they threaten our liberty and freedom via actual or potential surveillance and control."
In other words, as with the deployment of all complex technologies, the devil is in the detail and it is time policy makers, like David Blunkett for example, started getting real about the detail.
EFF news: The EFF have supplied an amicus brief in the lawsuit against California Secretary of State Kevin Shelley for decertifying specific electronic voting machines. The brief says the state can have secure electronic voting with an auditable paper trail by November and the presidential election.
There's quite a good editorial in the NYT about electronic voting. Extract:
"In an age when consumers expect to be offered a receipt every time they use an A.T.M. or buy gasoline, it is hard to believe that there is opposition to paper records for electronic voting. But the opposition has been strong. Many local election officials and voting machine companies are fighting paper trails, in part because they will create more work and will raise difficult questions if the paper and electronic tallies do not match. Officials in places that have invested heavily in electronic machines that do not produce a paper trail, like Florida and Georgia, have been particularly vehement.
As many computer scientists have explained, voters cannot trust electronic machines that do not produce voter-verifiable records. If New York throws its weight behind California, Ohio and several other states to require them, the odds are good that such records will become the national standard and that even states like Florida will have to retrofit their machines to produce them. It is too late for New York to lead the movement for reliable electronic voting, but if it acts in the next few weeks, it can still be an important part of the solution."
There's quite a good editorial in the NYT about electronic voting. Extract:
"In an age when consumers expect to be offered a receipt every time they use an A.T.M. or buy gasoline, it is hard to believe that there is opposition to paper records for electronic voting. But the opposition has been strong. Many local election officials and voting machine companies are fighting paper trails, in part because they will create more work and will raise difficult questions if the paper and electronic tallies do not match. Officials in places that have invested heavily in electronic machines that do not produce a paper trail, like Florida and Georgia, have been particularly vehement.
As many computer scientists have explained, voters cannot trust electronic machines that do not produce voter-verifiable records. If New York throws its weight behind California, Ohio and several other states to require them, the odds are good that such records will become the national standard and that even states like Florida will have to retrofit their machines to produce them. It is too late for New York to lead the movement for reliable electronic voting, but if it acts in the next few weeks, it can still be an important part of the solution."
Digital Media News For Europe reports
"Rotterdam-based website Dvdstream.nl is
using the Dutch copyright law that permits the
copying of films or music for private
consumption, to lawfully provide unlimited
film-downloads. "
I expect to hear more about this.
"Rotterdam-based website Dvdstream.nl is
using the Dutch copyright law that permits the
copying of films or music for private
consumption, to lawfully provide unlimited
film-downloads. "
I expect to hear more about this.
Sharman networks have been back in court in Australia, saying nobody has provided hard evidence of copyright infringement on Kazaa.
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