Andrew Cringely is wondering whether Microsoft lied to the Department of Justice during their big antitrust trial.

"This week, the news from recently unsealed court documents is that Microsoft may have deliberately lied not only to Burst, but also to the other anti-trust litigants right up to and including the U.S. Department of Justice.

You will find the two relevant unsealed documents in their entirety in this week's list of links. I'm going to characterize them here, but please read the documents for yourself. One thing to keep in mind here is that documents are unsealed when the judge decides that it is more important for the public to know what is in them than to not know, so Judge Motz, too, thinks this is worth your time. By the way, this is probably the first time these documents have been broadly released, so if you read them, your friends won't know what you are talking about. That may change if some big news organization gets smart and picks up the story.

One huge issue in Burst v. Microsoft is missing e-mails that should have appeared in the discovery portion of the case, but didn't. Burst knows there are lost messages because many of them were to and from Burst, itself, so they have their copies. But not only are the known messages lost from Microsoft's e-mail archive, so are any messages on the same subject that may have been sent between the Microsoft people, themselves, and not shared with Burst -- messages that Burst only believes to exist, but it's a pretty fair assumption that some such mail did happen. I have written about this before, and it plays back to a haphazard corporate e-mail retention policy at Microsoft that seems to conveniently lose any damning evidence."

You'll find the Burst documents referred to at http://www.pbs.org/cringely/links/burstbrief_1.pdf
And
http://www.pbs.org/cringely/links/burstbrief_2.pdf

Speaking of ID cards, does the UK need them?

The UK government Constitutional Affairs Secretary, Lord Falconer, thinks the Data Protection Act is in need of reform because it is too complicated and it makes the sharing personal information too difficult. This of course would be perceived as a problem in the light of the coming national ID card and other proposed UK government IT schemes.

The Greater London Authory are tendering for an "Electronic voting/vote counting system(s)." The value of the contract is not specified.

Blogger Adam Fields is not too enamoured with the prospect of a Google P2P network because one of the key constituents would be Orkut. Reading the smallprint of the Orkut license, this would give Google a “worldwide, non-exclusive, sublicenseable, transferable, royalty-free, perpetual, irrevocable right to copy, distribute, create derivative works of, publicly perform and display” any of the files on your computer.

In fairness to the Google folks, they would probably review the license before launching such a service but look out for that small print.

There's an excellent article on patents at Groklaw.

GetNetWise to spyware.

There are lots more stupid airport security stories doing the rounds at the moment but one of my favorite is the teacher getting arrested at Tampa International Airport for having a leather bookmark.

Definitely not amusing for the lady involved.

Bruce Schneier has pointed me at an interesting essay written at the beginning of last year about the psychology of terrorism.

In the wake of the seizure of the Rackspace IndyMedia hosting servers in London, John is wondering whether

" There may be a case, for example, for NGOs across the world to band together to set up an ISP which would be prepared to investigate and vigorously contest complaints and injunctions from the established order. The days when we could assume that we could 'publish and be damned' on the net are over."

The former Director of the US Office of National Risk Assessment, which ran the now defunct CAPPS II aviation screening program (it's been replaced, regular readers will be aware, with the "Secure Flight" system), has decided to commercialise the system which cost the US government about $100 million.

Ben H. Bell III, who has also been an intelligence official with the Immigration and Naturalization service, has become CEO of Global Information Group based in the Bahamas, where he plans, according to the Washington Post to

"use some of the same concepts, technology and contractors [as CAPPS II]to assess people for risk, outside the reach of U.S. regulators, according to documents and interviews."

Global's founder, Donald Thibeau says:

"You can realize the CAPPS dream in the commercial world... We live in a world where data can go anywhere and be warehoused anywhere."

Peter Swire, who was the privacy chief in the Clinton administration has a different perspective:

"As a business matter, there are layers of legal protections and public relations protections they can get by going offshore... It might meet business interests, but not necessarily the public interest."

I have a question - what is the perspective of the US government on an offshore company entity commercialising something they have spent tens of millions of dollars developing? Will they, for example, get to negotiate reduced rates for access to the databases created?

I hear from Stephen Maurer at the Goldman School of Public Policy, UC Berkeley, that a "Information Technology and Public Policy" course currently being offered on-line by University of Washington's CS Dept. and UC Berkeley's Goldman School of Public Policy:

http://www.cs.washington.cdu/education/courses/csep590tu/04au/lectures/

As part of this course, David Dill from Stanford gives a particularly interesting lecture on one of the regularly visited subject areas of b2fxxx, electronic voting. Recommended, as with most video streaming, to folks with broadband only, unless you're a particularly patient 56k modem user.

Eugene Volokh sees the irony in Disney potentially getting caught by the very law it lobbied so hard to have passed.

However, under US law the copyright on Peter Pan would have expired in 1986, so it is unlikely that the Great Ormond Street Hostpital are going to have a case in relation to Disney's recent publication of a prequel, "Peter and the Starcatchers" by Dave Barry and Ridley Pearson.

Meanwhile WalMart are leaning on the music industry to cut CD prices.

The Washington Post has an interesting Q&A session with Verizon's lawyer, Sarah Deutsch, on the suject of the Supreme Court refusing to hear the RIAA's case against. It's been a big week for file sharing cases on both sides of the pond.

The UK's High Court has ordered ISPs to disclose the personal details of the 28 people in the UK accused of excessive file sharing.

A new documentary series about the war on terror, The Power of Nightmares: The Rise of the Politics of Fear, starts on BBC next Wednesday evening and is likely to attract controversy. According to this Gaurdian piece it accuses politicians of manufacturing a grand myth - the war on terror - as a form of political propaganda:

"In an age when all the grand ideas have lost credibility, fear of a phantom enemy is all the politicians have left to maintain their power."

This description of the series by the producers should itself be sufficient to trigger a media feeding frenzy. Oh dear. I hope any rational analysis doesn't get completely buried/lost in the scrum...

SiliconValley.com have a roundtable discussion going on about e-voting between some very well informed participants. Sample:


If one set out to design systems to prevent checks and balances, it
would be hard to outdo current paperless e-voting machines. Electronic
voting in its current form is equivalent to handing over the counting of
votes to private groups who count the ballots behind closed doors -- and
then destroy them before anyone else can do a recount. -- David Dill,
Verified Voting

What about all those who are being encouraged to vote an absentee/mail
ballot? They place their faith in the U.S. Postal Service, which handles
their mail ballot by computerized processes. If they are delivered to
the Elections Department, for decades, those ballots have been tabulated
through computers (not networked). Yet, that voter has no idea whether
his/her ballot has been counted in every contest because of the
anonymity of the voter and secrecy of the ballot. -- Mischelle Townsend,
Riverside County registrar of voters

I am not against technology. I drive a car, get on airplanes and ride
elevators. However, if the code in any of these was as bad as Diebold's
software, I wouldn't. -- Avi Rubin, computer science professor

One of my company's customers makes electronic slot machines, and hires
us as one part of the independent verification process. The
manufacturer, the casinos, and the state regulators all take the
verification of software for these machines very seriously -- much more
seriously than most election officials seem to take the verification of
DRE software. -- Jim Horning, reader

The question begs asking: how did all of these experts find such serious
flaws that passed the scrutiny of the testers who approved the systems?
As it turns out, it's not entirely the fault of the testers. The
standards by which they are asked to rate and judge voting systems are
highly flawed themselves and are severely outdated. -- Kim Zetter, Wired
News

At this point in time in the election cycle, there is no constructive
value in perpetuating the debate. Election officials are conducting the
election with the tools that they have. To continue discrediting these
tools serves only to actively undermine the legitimacy of the election
before a vote has been counted. To deride and malign election officials
who are working tirelessly with the tools they have to conduct a
transparent, fair and accurate election to the best of their ability in
November serves no positive goal. It is a fair question to ask the
motive of those who do either.
-- Scott Konopasek, San Bernardino County registrar of voters

According to Susan Crawford, the proposed Family Movie Act that comes as part of the proposed Intellectual Property Protection Act, would make it illegal to write a program to automatically skip (or just turn the volume down on) TV ads. Turner Broadcasting CEO Jamie Kellner's declaration a couple of years ago that skipping the commercials equates to stealing the program comes flooding back.

Universal have asked an Australian court to reveal the details of Sharman Networks' (and Kazaa's)owners.

The judge said that Universal are "entitled to get to the bottom of exactly who the client is" also noting that he is prepared to support the request "in principle".

Home Secretary, David Blunkett, is recruiting a PR team to promote compulsory national identity cards and yet the legislation on ID cards has not been passed.

Regular readers will know about my opposition to compulsory national ID cards and I find this latest misuse of taxpayers money really irritating. A reminder of why I oppose them -

1. The lack of a clear specification as to what problem the ID cards are addressing, though the list of problems it is hoped they will solve is constantly growing (terrorism, benefit fraud, immigration etc.)

2. The fundamental inability of the proposed deployment of this ID card scheme to solve any of the problems alluded to by David Blunkett and his supporters on the issue.

3. The huge range of practical problems the scheme will create e.g. what happens if you lose your card, or someone gets a card in your name, or the system breaks down, or the database has errors etc. etc

4. The huge complexity of the system and the emergent properties it will likely spawn, like the big incentive for ID theft (since the cards will be so valuable)

5. The spending of billions of pounds on unproven and often unreliable biometric technology to solve a list of vaguely specified problems in an unspecified way.

And that's before you even start on some of the civil liberties issues that many commentators have argued about.

The US Supreme Court have refused to get involved, for the moment, in the dispute between the RIAA and Verizon "over whether Internet providers can be forced to identify subscribers illegally swapping music and movies online."

The British Navy have apparently chosen Microsoft Windows for the computers on their new destroyers.

"Gerald Wilson is a former employee of the company designing the system, who'd raised the concerns of a group of software engineers that Windows wasn't reliable enough or secure enough for such a critical military system.

Most computer users put up with it when Windows occasionally crashes. They've learned how to cope with virus attacks.

Only now has he decided to go public, after all his efforts to alert the defence establishment privately were rebuffed."

The entertainment industry have asked the US Supreme Court to overturn the recent decision of the appeal court in the MGM v Grokster case in favour of the P2P companies. There is no indication as of yet whether the court will agree to hear the case.

The World Intellectual Property Organisation, WIPO, have a useful free online database, COLLECTION OF LAWS FOR ELECTRONIC ACCESS (CLEA), which provides an outline of intellectual property legislation and treaties from various jurisdictions and sometimes links to the full text of the laws.

IPWatchdog is another interesting IP site, maintained by US law professor Gene Quinn. Mainly focussed on US law. Check out Gene's Obscure Patent Museum for a bit of light relief.

A Senate bill has been drafted to implement the 9/11 Commission's recommendations on giving US law enforcement officers access to

"a massive system of interconnected commercial and government databases that hold billions of records on Americans."

The US head of cyber security resigned last week.

Sony abandons copy-protected CDs

In case you missed it last week, the UK's version of the US's Secure Flight (or now defunct CAPPS II) visitor monitoring programme is to be called Semaphore.

John Lettice at the Register is none too complimentary about the scheme.

"A lucky 6 million travellers on riskier air routes are to begin to experience the first phase of the UK version of US-VISIT/CAPPS II by the end of this year. The government has not as yet specified the routes "chosen on the basis of risk assessments by the border agencies", so we are in no position to gauge the likely complexion or religious persuasion of the first wave of victims, but one may surmise.

Aside from the essential inanity of a pilot scheme using specific routes "on the basis of risk assessments" (which merely decreases the risk of these routes and increases the risk of the 'safer' ones), this doesn't matter greatly in the longer term, because the government is taking the 'collar the lot' approach, and intends to extend the scheme to encompass everybody travelling into and out of the UK. And some - this particular pilot, Semaphore, is intended as a component of the projected e-Borders programme, which is envisaged as linking the Foreign Office, the Home Office, the Department for Work and Pensions, Immigration and Nationality, Customs & Excise, the Passport Service and of course, the biometric ID card. From that list the borders in e-Borders would seem to extend quite a distance inland."

It looks as though WIPO have accepted the representations of the signatories of the Geneva Declaration on the future of WIPO. From Cory Doctorow:

"Massive victory at WIPO!
For years now, progressive elements and copyfighters have been trying to get the UN's World Intellectual Property Organization to start thinking about ways of promoting creativity and development instead of just IP -- to get the organization to see that its raison d'etre is a better world, and that stronger IP laws is just one way of accomplishing that -- and that IP only works sometimes.

We've been foiled at every turn by the maximalists, the movies studios and the trademark offices, the patent-cops and the recording industry lobbyists and the IP lawyers' associations.

Which is why this is such good news: at the general session of the WIPO in Geneva this weekend, the Assembly as adoped a decision to put development and the promotion of creativity front-and-center in its goals. That means that from now on, WIPO isn't an organization that blindly supports more IP no matter what, but rather one that seeeks to improve the world by whatever tool is best suited to the job.

Jamie Love and the Consumer Project on Technology gets the credit for this: they were the ones who started this fight, and they've been the ones who led it all along.

This is the day the tide turns.
Bearing in mind the internationally agreed development goals, including those in the United Nations Millennium Declaration, the Programme of Action for the Least Developed Countries for the Decade 2001-2010, the Monterey Consensus, the Johannesburg Declaration on Sustainable Development, the Declaration of Principles and the Plan of Action of the first phase of the World Summit on the Information Society and the Sao Paulo Consensus adopted at UNCTAD XI;

(1) The General Assembly welcomes the initiative for a development agenda and notes the proposals contained in document WO/GA/31/11.

(2) The General Assembly decides to convene inter-sessional intergovernmental meetings to examine the proposals contained in document WO/GA/31/11, as well as additional proposals of Members States. To the extent possible, the meetings will be convened in conjunction with the 2005 session of the Permanent Committee on Cooperation for Development Related to Intellectual Property. The meetings, open to all Member States, will prepare a report by July 30, 2005, for the consideration of the next General Assembly. WIPO-accredited IGOs and NGOs are invited to participate as observers in the meetings.

(3) The International Bureau shall undertake immediate arrangements in order to organize with other relevant multilateral organizations including UNCTAD, WHO, UNIDO and WTO, a joint international seminar on Intellectual Property and Development, open to the participation of all stakeholders, including NGOs, civil society and academia."

For most people who won't be followers of the machinations of WIPO, Cory is not understating the matter when he refers to this as a massive victory.

I hear from the EFF that the Swarthmore students, who were threatened by Diebold for publishing the company's embarrassing internal memos, have prevailed against the electronic voting machine vendor in their lawsuit alleging abuse of copyright. Wendy Seltzer is quoted in the Wired article:

"We weren't out to get Diebold," Seltzer said. "We were out to crack down on the misuse of copyright threats. It's a matter of showing Diebold and companies that there is a cost to making false threats and to show ISPs that they have a remedy if they feel they are being unfairly threatened. It's not free to threaten infringement when there's no good faith claim for infringement."

Open source programmers have been found to be in breach of the DMCA for producing the bnetd server created, in the words of the decision, to address the difficulties that users sometimes experienced with [Blizzard Entertainment and Vivendi Universal Games Inc.'s] Battle.net service. In addition, some or all of the defendents developed bnetd, in part, because they believed that Blizzard game players should not be forced to view advertisements displayed via the Battle.net service and that it was morally wrong for Blizzard to require people who want to play Blizzard's games over the Internet ot agree to the Battle.net TOU or other restrictions imposed by Blizzard. The bnetd project is a volunteer effort and the bnetd project has always offered the bnetd program for free to anyone who wants a copy of it."

As well as breaching the anti-circumvention provisions of the DMCA, the programmers were held to have violated Blizzard's end user license agreement (EULA).

Karen S. Evans, White House Administrator on IT and E-Gov has issued a memo outlining guidelines on personal use policies on file sharing software on government computers.

There are reports on Slashdot that Sony are abandoning copy protected CDs in Japan and reverting to standard Red Book discs for future releases.

Creative Commons Canada has launched.

From the FT:

"Five hundred scientists, academics, legal experts and consumer advocates, including two Nobel laureates, called yesterday for a change of course at the World Intellectual Property Organisation to put development concerns ahead of stronger intellectual property rights."

You may recall my mention last week of the Geneva Declaration on the Future of WIPO. Well the WIPO General Assembly debate on the matter has been happening today. I hope there has been some progress.

John Sulston, winner of the 2002 Nobel Prize for medicine for his work on the genome project, is one of the signatories of the declaration.

There are quite a few reports in the mainstream media saying that part of the USA PATRIOT act has been struck down as unconstitutional.

Orin Kerr, who has actually read the opinion, suggests the reports are misinformed. It was a provision of the Electronic Communications Privacy Act 1986 which was actually held to be unconstitutional. Orin is not too impressed:

"Mainstream Media Ruled Unconstitutional:
No, not really. But is it too much to ask that when the mainstream media reports on court decisions that they properly identify the law that is struck down and the Administration that is rebuked? Apparently it is, at least if the Thursday morning papers are any guide."

BAA (British Airports Authority) have been accused of dirty tricks in a domain name dispute to be heard by WIPO UDRP panelists.

Paul Lashmar at The Guardian is predicting a dystopian surveillance society by 2020

From the NYT

"Even Near Home, a New Front Is Opening in the Terror Battle" Extract:

Many question the government's strategy of trying to combat terrorism by prosecuting Web site operators. "I think it is an impossible task," said Thomas Hegghammer of the Norwegian Defense Research Establishment, an agency that monitors the use of the Internet by Al Qaeda. "You can maybe catch some people. But you will never ever be able to stem the flow of radical Islamic propaganda."

He pointed out that it is difficult to distinguish between a real terrorist and a make-believe one online. "You would end up prosecuting a lot of angry young people who do this because it is exciting, not because they want to actually participate in terrorist attacks," he said. "I don't think it helps you fight Al Qaeda."

I had the pleasure of meeting Kees Schouhamer Immink at an IEEE conference recently. It was Kees who developed the digital coding technologies for essentially all consumer optical and magnetic recording formats such as CDs and DVD.

He recommended an enthralling book to me,

"Empire of the Air: The men who made radio" by Tom Lewis.

Ostensibly the story of David Sarnoff, Edwin Howard Armstrong and Lee de Forest and their respective roles in the history of radio, it is a gripping tale outlining yet again the degree to which scientists and engineers fail to recognise the power of commerce, politics and the law to bend reality.

Referring the the court battle between Armstrong and de Forest over the regeneration circuit, the author quotes Armstrong's lawyers:

"The Patent Office declares that A (the invention) equals B (the language of the courts). The Court of Appeals declares that B does not equal A, but C (something different). This in the Patent Office, then results in the equation A=C."

The author goes on to say:

"Using such a verbal charade, the courts might have said that the person who invented the pocket comb actually had been anticipated by the inventor of the picket fence, for if reduced in size, the fence might become a comb. The courts had decided in the past that the inventor of the hose extension for a vacuum cleaner was not Clements, who first conceived of and built one, but another who had once sold a vacuum cleaner with a hole into which he might have inserted an extension. They had also decided that it was not Curtiss, who conceived of and constructed the first hydro airplane, but a man who had once applied for a patent on a boat with wings that was never built and would not fly.

In the case of the regeneration suit, language was altering and twisting thoughts in such a way as to give a person a patent for a circuit that his assistant had described as no good; which would no work in a radio, and indeed was to be avoided."

How history repeats itself.

Wikipedia has reached one million entries this week. Congratulations to Jimmy Wales, Wikipedia's founder, and all the contributors.

Over 50 media companies are going to support the Washington Post's efforts to get an Ontario Superior Court of Justice internet defamation decision overturned.

The court, in Bangoura v The Washington Post, was guided by the Australian decision in the Gutnick case and said that the plaintiff was entitled to sue the Washington Post for defamation in Canada for articles published in the newspaper and on its website. They stretched the Gutnick guidance though. Mr Bangoura was not resident in Ontario when the articles were published, nor was he a Canadian citizen.

I can understand why the media companies are so concerned. There is an argument to be made that publication happens where the web material is downloaded, not just where it is produced. It is then a values debate as to whether one would agree with the argument or not. But the notion that you can sue for defamation in a jurisdiction of your choosing, where you are neither resident nor a citizen and in this case where there were only 7 subscribers to the website apparently none of whom downloaded the allegedly offending articles, seems to be stretching things to breaking point.

I have not seen the actual court decision, so there will no doubt be other mitigating factors which the judges took into account. Individuals are, after all, entitled to a form of redress through the courts when the victims of online defamation.

The appeal court is due to hear the case in November.

Christian Ahlert of the Oxford Internet Institute has some interesting comments on the recent Munich district court decision which held Sitecom liable for violating the terms of the GPL.

From the Consumer Project on Technology:

"On September 30, 2004, the WIPO General Assembly will debate an important proposal to change the mission and work program for WIPO. The following is a Declaration on the Future of WIPO, for which we are currently collecting signatures. If you are willing to sign this document, send an email to: geneva_declaration@cptech.org

English version of the text of the Geneva Declaration on the Future of the World Intellectual Property Organization (PDF format)"

If you ever wondered how important policy on intellectual property really is, this should give you an idea of the scale of the issue.

The Abridged Guide to Lessig for 6-year olds

I've been having an ongoing conversation with John Naughton about the relative difficulty of the ideas in our Open University course, T182: Law, the Internet and Society, based on Larry Lessig's book, The Future of Ideas.

A substantial minority of students have difficulty grasping the basics because policy on the management of intellectual resources is, not surprisingly, not a subject area most people give a lot of thought to.

I've been fairly convinced for some time that the ideas in and of themselves are not inherently difficult because I've been able to explain them to my kids. So John suggested scripting an "Abridged guide to Lessig for 6-year olds" and recording it for the course website. Unfortunately Blogger doesn't host audio files but a copy of the transcript follows (If you'd like a copy of the audio file, let me know at r.corrigan at open.ac.uk and I'll email it to you) :

Hi, I’m Ray Corrigan, the author of T182.

At this point in the proceedings we usually discover that a number of people have decided to get a head start by reading the set book first and found they can’t seem to understand a word of it. If you’re one of those people, don’t despair.

There are a few things you need to realise about Professor Lessig’s book.

The first is that it’s NOT a typical textbook. It’s a book-length argument setting out its author’s view of a really important public issue.

Secondly, Larry Lessig is a lawyer by training – a very distinguished lawyer, but a lawyer nonetheless. This means that he thinks and writes like a lawyer, and for some people this is an unfamiliar mode of discourse.

Finally, Lessig’s book is about topics that may be very new to you.

So it’s not surprising that many people who dive straight into The Future of Ideas find that they have wandered into strange and unfamiliar territory.

Now here’s the good news. The ideas you need to understand to get through T182 are not nearly as complicated as a first look at the book might make them seem.

How do I know this? Well, primarily because I’ve been able to explain all the key ideas in T182 to my young son, Jack.

What follows is what a colleague calls my abridged guide to Lessig for six-year-olds, so I should say at this point that if you’ve read the book and had no trouble with it then you should close this MP3 file now. I hope you won’t find that I have been irritating or patronising, but if you do I suggest you to shut off this audio file and move straight to the Web-based course material. If you do this, though, can I suggest that you take note of what the website says in advising you to ‘follow the book as indicated on these web pages.’

Firstly, then, Lessig tells a story of an innovation revolution, the concerns of established industries, and their response, which he calls a counter-revolution. Jack thought this was just a bit like the big kid in the playground always wanting everyone to play his games, even when someone had other more interesting ideas, toys or gadgets.

What about the layers model Lessig uses to describe the Internet? Well, it turned out that this one wasn’t too difficult either because kids are absolutely fascinated by anything to do with nature, science and technology. So they’ll happily accept that the Internet is made up of three layers.

The physical layer, as far as Jack is concerned, consists of the things you can touch – the wires, the plugs, the metal and plastic boxes etc.

The content layer consists of the things he deals with on the computer screen – words, images, sounds and the application programmes he uses, like games or word processors.

The middle layer – the code layer – was a little trickier, but manageable with the help of a couple of electrons called Ella and Ernie. Because my kids are always asking questions, I’ve concocted a whole host of stories about families of electrons who run about inside electrical and electronic devices, enabling them to work. These electrons are led by two main characters, Ella and Ernie. And as far as the code layer of the Internet is concerned, Ella and Ernie just run a kind of crazy post office that enables content to be delivered from one computer to another through the wires or airwaves of the Internet. Any computer that accepts Ella and Ernie’s crazy rules can join in the game of talking to any other computer on the Internet.

So, the physical layer covers the things he can touch, the code layer is Ella and Ernie’s crazy post office, and the content layer includes the things he sees or hears on the screen.

Now to Lessig’s idea of a commons. It was Jack’s younger brother, Nicholas, who gave me the clue about how to talk ‘commons’ on their wavelength. I was babbling on about people needing things to be creative, when he said ‘You mean like the junk modelling stuff, Dad?'

In our house we have some art and junk modelling cupboards that are jammed full of coloured pens, pencils, paper, glitter, paints, stars, glues, cardboard tubes – you name it – all the raw materials you need to be the perfect Blue Peter presenter. There’s no lock on these cupboards but there are the usual rules of engagement, re. being careful with paints, the need to tidy up afterwards etc., and mum and dad are the gatekeepers responsible for access and replenishment of stores. So the Corrigan junk modelling cupboards, though broadly subject to open access to the kids and their friends, can’t be considered to be a commons because they’ve got two gatekeepers.

It was a short step for the kids to imagine an enormous open art and junk modelling cupboard without parent gatekeepers, that they and all their friends could dive into and the potential that would provide for creative chaos. Now that’s a commons.

After layers and commons, the third big idea in the course is Lessig’s model of constraints on behaviour. It’s relatively straightforward and doesn’t really need the Lessig guide for six-year-olds to explain it. Nevertheless, a kids’ eye perspective on it was helpful to me. When I asked Jack what constrained his behaviour, his first question was ‘What does constrain mean, Dad?’ When I explained, he came up with an interesting list. It included:

other children (who, that day, hadn’t wanted him and his mates to build a ‘rocket’ from one end of the playground to the other)
house and school rules
grown-ups
lack of money to buy gadgets, books and sweets
not being able to jump over a tree because gravity weighs you down
locked doors
locked computers when you don’t know the password
the rules of the road
being banned from using the computer (a sanction for naughty behaviour)
and not having his own laptop.

He got some fun out of generating the list and turned it into a list of things he would like to have, but I won’t bore you with the rest of it. The interesting thing for us here was that part of his list mapped onto Lessig’s four constraints:

house and school rules plus the rules of the road are kids’ equivalent of laws
the unwritten rules of social engagement with other children when building a playground rocket are the social norms angle
no money to buy things equates to market forces
and Lessig’s architecture could encompass Jack’s reference to gravity, locked doors and passwords on computers.

So there you have it:

innovation revolution and counter-revolution
layers
commons
and constraints

in the abridged guide to Lessig for six-year-olds. The key point is that the main ideas are simpler than a first look at the set book might make them appear.

Updated due to broken OpenLearn link. I've also put the audio version of this up on the Internet Archive.

Donna Wenthworth is reporting that the National Arts and Recording Academy are calling on their 20000 members to support the INDUCE act.

http://www.corante.com/copyfight/archives/015742.html

Check out a new Ideal e-government blog

http://www.idealgovernment.com/

I've been having real problems with Blogger again and I'm too busy to spend any time on it at the moment. I haven't even been able to get onto the system for some days. Hence the lack of postings. Also can't seem to get it to accept links, so I'll just point you at one:

http://www.siliconvalley.com/mld/siliconvalley/news/editorial/9723490.htm

Mercury News are reporting that the US government will order airlines to hand over passenger data for testing the new terrorist screening system "Secure Flight", the sucessor to the now defunct CAPPS II.

I've been meaning to post an alert to this story for ages - Senator Ted Kennedy somehow got himself on the US government's "no fly" list.

"A senior administration official, who spoke on condition he not be identified, said Kennedy was stopped because the name "T. Kennedy" has been used as an alias by someone on the list of terrorist suspects.

While he worked to clear himself, Kennedy kept having to wait in terminals at Reagan National, Boston's Logan International and at least one other airport, his staff said. All of the flights were on US Airways. When the senator checked in at the counter, airline employees told him they could not issue him a boarding pass because he appeared on the list. Kennedy was delayed until a supervisor could be summoned to identify him and give approval for him to board the plane."

The wonders of airport security.

Black box voting have reported another problem with Diebold voting machines.

"By entering a 2-digit code in a hidden location, a second set of votes is created. This set of votes can be changed, so that it no longer matches the correct votes. The voting system will then read the totals from the bogus vote set. It takes only seconds to change the votes, and to date not a single location in the U.S. has implemented security measures to fully mitigate the risks."

If that report is accurate then it is pretty worrying.

The Consumers Association in the UK have decided to refer the Apple iTunes service to the Office of Fair Trading (OFT) for anti competitive practices.

'Consumers' Association's main areas of concern are that the practice of residency based price discrimination frustrates consumer benefits possible under the single market and that the iTunes system allows market abuse, going against the principles of the single market.

When CA asked Apple to justify the price differential, they responded: "The underlying economic model in each country has an impact on how we price our track downloads. That's not unusual, look at the price of CDs in the US versus the UK. We believe the real comparison to be made is with the price of other track downloads in the UK." '

Price discrimination based on geography. Just another symptom of DRM.

The Sony Playstation2 mod chip case, Sony v Stevens, is heading for the Australian High Court, scheduled to be heard in March 2005.

"Last year Sony Computer Entertainment successfully sued a Sydney-based mod-chip trader Eddy Stevens, claiming he contravened the Copyright Act by selling and installing chips for Sony Playstation machines.

Mod chips allow users to overcome Playstation's security system so they can play pirated or copied games, legitimate gamed bought more cheaply outside Australia, or make personal back-up copies...

...Last year Sony Computer Entertainment successfully sued a Sydney-based mod-chip trader Eddy Stevens, claiming he contravened the Copyright Act by selling and installing chips for Sony Playstation machines.
Mod chips allow users to overcome Playstation's security system so they can play pirated or copied games, legitimate gamed bought more cheaply outside Australia, or make personal back-up copies."

TiVo and ReplayTV have agreed to implement technological restrictions to digital video recorders. The more I think about this kind of thing the more surreal it appears to be. What is the logic in restricting the products you supply to the market, reducing your customers utility purely to serve the interests of dominant players in a related market? All of this is bound to eventually collapse in on top of itself.

The new head of so-called e-government in the UK, Ian Watmore, is very keen on national identity cards and single ID numbers for all citizens. This shouldn't be a surprise to anyone.

Theoretically, for example, a single ID number would make his job of joining up the IT dots for government significantly easier. That's something that is often neglected when it comes to grand schemes like ID cards or complex security systems. The agenda of the individual actors has a significant part to play in the position they take on any issue.

That it may be helpful to Mr Watmore in meeting whatever targets he might have, however, does not necessarily mean it is in the general interest of the rest of us.

FFII are concerned that the EU Council may rubber stamp the software patents directive at their meeting later this month.

I've been really busy and Blogger's been playing up in recent weeks. Hence the current sparsity of postings. But you should be staying tuned to Copyfight, EDRi and all the usual suspects.

Privacy International and EDRi have today released their response to the EU consultation on communications data retention. Needless to say it is intensely critical of the proposals. There's a salutory quote included from the European Court on Human Rights

"The distinguishing feature of a blanket data retention requirement is the absence of any reasonable relationship between the intrusion on individual privacy rights and the law enforcement objectives served."

The full report is worth a read. The executive summary follows:

"The following report is a response to the European Commission's Directorate Generals on the Information Society and on Justice and Home Affairs call for comments on a proposed retention regime across Europe. We welcome the intervention of the Commission in this process that has to date been led by some Member States, and previously conducted in a closed manner. We hope that the Commission will re-invigorate this debate, and provide some deliberation on this pressing issue before it is too late.

In this response we argue that any regime for the indiscriminate retention of personal data is hazardous. At a time like this, the European Union should be fulfilling its role to uphold the rights of individuals, as technologies become more invasive, and as laws are increasingly reluctant to protect individual rights. Data retention is an invasive and illegal practice with illusory benefits. And to date, the paths to data retention in Europe have involved illegitimate policy processes.

The retention of personal data resulting from communications, or of traffic data, is necessarily an invasive act. With the progress of technology, this data is well beyond being simple logs of who we've called and when we called them. Traffic data can now be used to create a map of human associations and more importantly, a map of human activity and intention. It is beyond our understanding as to why the EU Presidency and some select EU Member States insist on increasing the surveillance of traffic data even as this data becomes more and more sensitive, concomitant to a decreasing regard for civil liberties.

Claims that the retention of this information is necessary for investigations are not entirely accurate. Security gained from retention may be illusory. It is likely that traffic data that is associated to one individual may actually be linked to activity taken by another, or by a process that is unrelated to the activities of that user. The linking of one individual to a set of actions through checking logs is a tenuous link at best. In an investigation of 'who' visited a website with controversial content, even if the logs are well maintained, there is little certainty that they will lead back to the individuals who are being sought. We may be attributing actions and intentions to innocent individuals instead, which is also an invasion of privacy.

Retention is illegal. Article 8 of the European Convention on Human Rights protects the right to a private life. The indiscriminate collection of traffic data offends a core principle of the rule of law: that citizens should have notice of the circumstances in which the State may conduct surveillance, so that they can regulate their behaviour to avoid unwanted intrusions. Retention would be so extensive as to be out of all proportion to the law enforcement objectives served. Under the case law of the European Court of Human Rights, such a disproportionate interference in the private lives of individuals cannot be said to be necessary in a democratic society.

The process through which EU Member States are attempting to establish retention is illegitimate. Some believe that the mandate for retention was established through Directive 2002/58/EC on Privacy and Electronic Communications. In fact this Directive was passed under problematic circumstances, as were many of the national laws on data retention. Many of these laws were passed in response to terrorism, only for legislators to be shocked to discover that data retention has little to do with investigating terrorism and is more commonly used for common investigations and surveillance. We agree that the policy situation across the EU right now is quite fragmented with some countries with retention and others without. This is because some countries concealed the policy under the guise of terrorism. Others pursued this policy under the veils of silence and ignorance to its ramifications. Some Parliaments have actively rejected the policy. If the Commission calls for the adoption of data retention due to concerns regarding the single market and harmonisation, it will be rewarding these undemocratic actions of some member states whilst ignoring the democratic responses of others.

The process through which the EU is insisting on ensuring that all countries weaken privacy protections to support generalised surveillance is contrary to the principles of an open society."

An alledged Australian software pirate, Hew Raymond Griffith, has been extradited to the US.

Meanwhile, according to CNN,

"The U.S. Department of Justice has asked an appellate court to keep its arguments secret for a case in which privacy advocate John Gilmore is challenging federal requirements to show identification before boarding an airplane."

Have a look at a new blog - Copyfutures and Ernest Miller's new law and IT conversations at the Importance of...

Nice article on the TSA's launch of the replacement for CAPPS II, "Secure Flight".

"Unlike the previous proposal, the new system will only look for known or suspected terrorists, not other law enforcement violators. In addition, it will include a redress mechanism, where people can resolve questions if they believe they have been unfairly or incorrectly selected for additional screening."

Announcements about the death of the CAPPS II passenger screening system by the head of US Homeland Security recently may have been pre-mature. The Washington Post is suggesting that it has been resurrected under a new user friendly name "Secure Flight," and with a new slogan, "Preserving our freedoms."

Jason Schultz is spot on in his comments about the balkanization of digital music. Funny enough, I had just been making exactly the same point in my keynote address to the IEEE Consumer Electronics Symposium 2004. People are going to get fed up having their music players dictate which music they can play and the nonsensical need to buy a separate player for music supplied, for example by Microsoft, Apple or Real. And what happens when you decide to buy a new player that won't play any of your old music?

Stefan Motte from Phillips, in a terrific talk this morning, made the point that the key things for digital consumer electronics devices in the home are usability, seamless integration and interoperability. I wonder how long it will be before the Microsoft/Apple/Real/entertainment business balkanized markets collapse in on themselves. I just hope not too much permanent damage is done in the interim.

Yahoo have failed in their attempt to get a US court to support their position in the Yahoo France Nazi memorabilia case. The majority jusdge in the split opinion said

"Yahoo obtains commercial advantage from the fact that users located in France are able to access its Web site … Yahoo cannot expect both to benefit from the fact that its content may be viewed around the world and to be shielded from the resulting costs... If Yahoo violates the speech laws of another nation, it must wait for the foreign litigants to come to the United States to enforce the judgment before its First Amendment claim may be heard by a U.S. court."

Looking for information and analysis of the MGM v Grokster & Musiccity case?
Copyfight and the Importance of... would be very good places to start.

There are loads of stories around on the Grokster decision. I expect Copyfight will have a round up but just for starters here's one from the NYT and the EFF's take on it.

The 9th circuit appeal court has firmly rejected the entertainment companies' appeal in the Grokster case.

"The Copyright Owners urge a re-examination of the law in the light
of what they believe to be proper public policy, expanding
exponentially the reach of the doctrines of contributory and
vicarious copyright infringement. Not only would such a renovation
conflict with binding precedent, it would be unwise. Doubtless,
taking that step would satisfy the Copyright Owners' immediate
economic aims. However, it would also alter general copyright law in
profound ways with unknown ultimate consequences outside the present
context.
Further, as we have observed, we live in a quicksilver technological
environment with courts ill-suited to fix the flow of internet
innovation. AT&T Corp. v. City of Portland, 216 F.3d 871, 876 (9th
Cir. 1999). The introduction of new technology is always disruptive
to old markets, and particularly to those copyright owners whose
works are sold through well established distribution mechanisms. Yet,
history has shown that time and market forces often provide
equilibrium in balancing interests, whether the new technology be a
player piano, a copier, a tape recorder, a video recorder, a personal
computer, a karaoke machine, or an MP3 player. Thus, it is prudent
for courts to exercise caution before restructuring liability
theories for the purpose of addressing specific market abuses,
despite their apparent present magnitude."

Expect another appeal especially with the INDUCE act in the pipeline.

I don't think Lawmeme's excellent guide to Ernest Miller's dissections of the INDUCE act developments has caught up with his latest offensive. Sen. Orrin Hatch and co. have written to the Register of Copyrights, Marybeth Peters, asking her to take charge of refining the INDUCE act by 7 September 2004.

"Asking Marybeth Peters to play a leadership role with regard to legislative changes to copyright law is like asking Dr. Jack Kevorkian to play a leadership role with regard to legislative changes to euthanasia law...

...Peters is to identify "proposed solutions" to "legitimate concerns." Unfortunately for the tech industry, Peters doesn't think there are any legitimate concerns with regard to the bill, at least according to her testimony: Copyright Office on INDUCE Act (IICA): It isn't Strong Enough. If anything, she thinks the bill is too soft on technology."

Ernest is not impressed.

Simon Jenkins is on David Blunkett's trail again, criticising the home secretary and the court of appeal for relying on evidence, gleaned from torture in foreign parts, to hold terrorist suspects indefinitely.

"SO THE Home Secretary, David Blunkett, is having trouble with his friends, the tabloids. Well, well. For years he has been treating them like a skinhead playing with rottweilers. He has crammed prisons, abused judges, taunted left-wingers and pandered to the mob. Suddenly the snarling beasts turn on their handler and savage him. Before you can say “liberal” a large portion of the Home Secretary’s anatomy is raw flesh.

Where, he might wonder, did the tabloids gather their information about his love life? How rigorous were their sources? From whom was their evidence extracted, and with what bribes and duress? How do these journalists now rate their pledges of respect for human rights? The answers are probably as robust as those that Mr Blunkett deploys against the ten detainees whose case came before the Court of Appeal last week, whom he brands “terrorists”. His victims claimed the evidence against them was gleaned from prisoners who had been tortured. Unlike that in Mr Blunkett’s case, this evidence really matters. These men have been in prison for two years without trial or normal civil rights.

In prison they will stay. Three appeal court judges inexplicably found in favour of Mr Blunkett, albeit one of them with reservations. Lord Justice Laws declared himself “quite unable to see” why the Home Secretary should not rely on evidence “gained by torture”, if the torturers belonged to states “over which he has no power of direction”. Torture is apparently fine so long as the torturers are not British. I sense that this is what might be called an old-fashioned judge.

He then went further and added that he could not even see why Mr Blunkett had a “duty of solemn inquiry as to the interrogation methods used”. If he wants to declare an accused a terrorist, any evidence would presumably do, even if it were scraped off the walls of Abu Ghraib jail.

These detainees are not accused of any act or planned act of terrorism, only of membership of al-Qaeda. They have the option of leaving England and returning to their home country, but they claim that this would be at risk of their lives. They want to stay free in Britain. Since this is in part an immigration case, the appeal court may have considered the burden of proof on the Home Office less than onerous. But that is quite different from liberating the Home Secretary to sweep the torture chambers of the world for accusations against his victims...

...In The Times on Monday a former immigration scrutineer, Sir Brian Barder, attacked the appeal court decision. Surely, he said, the court should have issued “a ringing condemnation of reliance on evidence obtained by torture, wherever and by whomever practised, as a basis for imprisoning people indefinitely and without trial”.

It is scarcely believable that such words need writing in Britain in the 21st century. They do."

I don't always agree with Jenkins but in this instance I find his central arguments to be compelling and persuasive.

Rod Dixon at CircleID has an interesting piece on the domain name dispute which came to light recently between Penguin and the private owner of katie.com. Penguin published a book called katie.com four years ago even though there was a website with the same domain name registered to an individual, Katie Jones.

"In 2000, katie.com was published by Penguin Putnam Publishing; according to the publisher, the book provides an "eye-opening account of teenager's descent into the seductive world of the Internet." Apparently, the publisher successfully took on the ambitious task of publishing a book about the "world of the Internet," yet did so somehow without any awareness that the book's title was identical to a pre-existing domain name. This misstep ordinarily may constitute a minor distraction for a publisher of a book on other topics, but a book about the Internet targeted toward young readers, should likely require a rerun of the printing press with a different book title, if the current domain name holder refuses to sell or license the domain name...

...Unfortunately, individual domain name holders are not widely known to receive compensation for interference with the enjoyment of their intellectual property. Too often, it seems individual domain name holders find their interests viewed as entirely irrelevant...

...legal rules governing property rights in domain names have largely resisted reformulation when directed toward freedom of expression or non-trademark-oriented uses. Hence, Katie Jones not only was without a low cost forum to assert her own rights, but could have been forced to defend a domain name she had lawfully acquired. Some commercial interests have demonstrated an implacable and ferocious appetite for domain names held in non-commercial use by individual domain name holders. In addressing her own circumstance as a domain name holder, Katie Jones indicated that the situation she faced was: "like having your home address made into a book title, and then everyone shows up at your doorstep looking for the main character…Domain name owners have just as much at stake as regular property owners.""

The publisher has now decided to change the title of the book.

The tabloid newspapers in the UK are apparently having a field day with speculation about Home Secretary David Blunkett's sex life. The married woman allegedly involved has understandably asked to be left alone by the media, to protect her family. She and her family certainly should be left alone.

I fear the hacks will use Mr Blunkett's ad nauseum repetition of the "if you've nothing to hide, you've nothing to fear" soundbite as an excuse to hound these unfortunate folk, however.

An NYT op ed slams the INDUCE act proposals.

"But the bill is so loosely worded that it could threaten a host of legal information-sharing practices and technologies. That includes everything from the iPod to automatic online translation. Critics claim, with reason, that this overreaching bill would have deeply chilling effects on technological innovation.
Congress seems instinctively to side with those who instinctively want to put a chokehold on new technologies. It's always easier, after all, to try to protect what appears to be "an absolute, inviolable set of rights" than it is to find equitable new ground to stand on in the rapidly shifting debate over digital copyright."

The EFF has created a parallel version of the state attorneys generals' letter to file sharing companies recently saying their technology was too dangerous. The EFF letter extrapolates from the P2P letter and, replacing p2p with "The Internet", "email," or "the Web" creates a hypothetcial missive to Al Gore, who was reported, when he was Vice President of the US, to have claimed that he invented the Internet.

Clever.

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."

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.

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."

Apple Computer are considering suing RealNetworks for circumventing iPod anti-circumvention measures to facilitate interoperability.

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."

Funny. "Bush-Kerry parody draws the ire of the music publisher that owns the Guthrie song."

Funny.

"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.

Here's a funny and insightful blog - OK/Cancel.

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 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.

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?

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. "

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."

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.

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.

The IHT is suggesting the EU's software patent policy is "under seige."

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.

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."

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

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. "

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.

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.