Seth Schoen uses the changes TiVo have embraced (ie drm) as a platform to explore the convergence of computers and consumer electronics devices, on Dave Farber's interesting people list.

"the smart cards and set-top boxes would decrypt the programming as it came into
your house and verify that you were authorized to receive it. But
then they would encrypt it again in order to enforce _copyright
holder_ policies about what you could do with it after you had
received it. That re-encryption makes the new generation of pay
TV services (after you've paid for them) different from free TV
services because the pay TV services can be subject to additional
controls after the point of lawful reception.

The FCC was asked to ban this re-encryption -- in a sense, to limit
the use of encryption under the 1996 Act to making sure that you
initially pay for pay TV, not to controlling what you do with it
afterward. In a decision in 2000, the Commission declined to do
this...


This decision was unfortunate in its implications because it vastly
increased the potential leverage that movie studios would have over
technology companies. If the FCC had forbidden re-encryption of
pay TV programming, companies like TiVo would not need to negotiate
with movie studios (or broadcast groups) in order to get lawful access
to pay TV...

And TiVo has chosen to do exactly that...

Of course, that negotiation has come at a corresponding cost: TiVo
implements digital rights management, takes steps (to date not very
strong steps) to control reverse engineering and aftermark
modifications, and generally implements a lot of restrictions on
recorded programming...

TiVo customers are obviously happy enough with this strategy that they
keep buying TiVos in large numbers, although there is a devoted
community of "TiVo hacking" enthusiasts who learn how to add
functionality to their TiVos -- and they have a very complicated
relationship with these restrictions...

There is an alternative -- if you only want to receive unencrypted
TV (free-to-air terrestrial broadcasting and basic-tier cable in
the U.S., and possibly these plus certain types of pay TV in Europe).
You can use a personal computer as a PVR by putting one or more TV
cards inside. Then you can run software that turns the PC into a PVR.
One of the most impressive programs along these lines is an open
source package called MythTV

http://www.mythtv.org/

which has already implemented functionality competitive with TiVo's
PVR functionality, plus features that TiVo won't touch...

The major movie
studios have persuaded the FCC to change the rules for unencrypted
digital television to apply DRM there, in the "broadcast flag" or
"digital broadcast content protection" proceeding. (That's why I
say that the FCC is unlikely to change the DRM requirement for
cable TV!) The result is that the equipment that makes a program
like MythTV work with U.S. digital television will be illegal to
manufacture here from July 1, 2005. If you want to use something
like MythTV for digital TV in the future, your best bet is to buy
the equipment before then. MythTV works well with the pcHDTV
HD-3000 card, which is finally shipping:

http://www.pchdtv.com/ ...

I would not get so worked up about any one action that TiVo takes.
We know their strategy, and it involves co-operating with movie
studios to impose restrictions on end users. The reasons why they
do this are not mysterious. If you want to criticize TiVo -- and
that's fine with me! -- the right place to start is much earlier in
the company's history.

But if you actually want to opt out of the DRM game, it seems to
me that the thing to do is to spread the remaining unrestricted
technologies as far and wide as possible while they're still legal...

I've often thought of writing an essay called "converging up,
converging down?" about the ambiguity of the "convergence" ideal.
PCs and consumer electronics (CE) devices have very different
characteristics -- beyond just the technical differences, veering
into cultural differences -- even though today they are usually
made out of the same chips. Among other things, PCs in the past
were friendlier to user innovation and third party innovation; you
could teach them to do more. CE devices in the past were much more
single-function and fixed-function, and upgrades (if available)
typically had to be provided by the manufacturer. Ultimately PCs
were much more under end user control and CE devices much more
under the manuacturer's control. Movie studios have appreciated
this distinction; they have better, older, and closer relationships
with the CE industries than with the PC industries...

If these device families actually do "converge", on whose terms
will they converge? Will the PC grow more like a DVD player (or
a TiVo), or will the PVR and cell phone grow more like PCs? And,
since "being like a PC" or "being like a CE box" is not just a
single dimension, in _which ways_ will they become more like one
another? Which particular characteristics will each now imitate...

In terms of end user control, there is an opportunity for CE devices
to converge up (enhancing customers' control) and a risk of PC
devices converging down (eroding it). I think the world the
entertainment companies have built is providing exactly the wrong
incentive at every point as this question is worked out."

Spread unrestricted technologies as far and wide as possible whilst they are still legal? Now where have I heard that before? Well Charles Nesson at the Berkman Center has taken this position the introduction of controls to the Internet - the message being don't waste your energy complaining about those terrible entities introducing restrictions for their own ends but rather get on with using the Net creatively and demonstrating to the world what potential it has.

Somebody has asked me if there is a quick way of understanding Larry Lessig's ideas on copyright. Well he's done lots of excellent public lectures and interviews, many available on the Internet, such as this KQED debate with intellectual property lawyer, Jeffrey Knowles.

Ernest Miller is dreaming about the server in the closet of every home.

"I remain enamored of a concept I think of as the "server in the closet." I believe that, eventually, every home will have a fairly sophisticated server as the locus of the many networked device in the home. Everything from the VoIP phone system, presence-enabled media (IM), multimedia (podcasts, broadcatch), etc., etc., etc. There will be fat and thin clients in the home, all of which can be (but not required to) coordinate through home's central server. More importantly, this "server in the closet" will be part of bi-directional communication with the rest of the world wide network, turning every home not only into a receiver, but a transmitter."

James Grimmelmann has some strong words about "Two Skirmishes in the DRM Wars: Half-Life 2 and Halo 2" over at Lawmeme:

"people who tried to log in to Microsoft's X-Box Live service to play Halo 2 with hacked X-Boxes have found their accounts suspended.

And on the other hand, copies of Half-Life 2 have started hitting retail shelves in advance of the "official" release date of November 16. Gamers who rush out to buy (sometimes extortionately priced) copies early, however, are finding themselves stymied: the game won't install without verification from Steam, the online platform Valve (Half-Life 2's creator) uses to deliver its games and coordinate online play. But Steam won't turn the game on until the 16th, per instructions from Vivendi (Half-Life 2's distributor).

Let's call these schemes by their right name: these are both examples of digital rights management working as intended. This is the future of digital media, here today: your copy of the product checks in with home base to determine what you can and can't do with it. And when the company that runs home base decides that it doesn't like what you're doing (be it tampering with your device's hardware or trying--oh the temerity!--to play a game a few days early), it can cut you off at the knees and disable your access to the game. That's what DRM does. Hey, gamers: you're getting a taste of the treatment the music industry has planned for us all. Do you like it?

Now, not all DRM is created equal. Microsoft's choice here was reasonably fair, I think. You can do whatever you want to your 'Box, but don't expect to be able to use a modded 'Box to compete against people who are playing by the rules. I look at X-Box Live as a kind of virtual world; it's not unreasonable for Microsoft to act as a referee by insisting that everyone who enters that world enter it on the same terms...

...The Steam lockout is more frightening, though. First off, note why it is that Valve won't turn the key: a contractual dispute with Vivendi. In fact, Valve and Vivendi are locked in a fierce legal struggle over distribution terms, with Vivendi furious that Steam might undercut its revenues from store-based sales. That's right: your ability to play Half-Life 2 is being held hostage to a licensing fight between two corporations."

One of my students has reminded me that the November issue (12.11) of Wired magazine comes with a CD containing a collection of songs released under a creative commons license.

Microsoft have launched a global egovernment network, called the "Solutions Sharing Network" or SSN.

In the same spirit of sharing, the NHS National Programme for IT (NPFIT)will be rolling out the PR department next year to let people know about the new NHS IT systems and the implications regarding sharing of personal data. I wonder if they'll be referring to doctors concerns about the lack of security of records the new systems may be displaying? Sorry - cheap shot - but I couldn't resist it.

Sun are trying the open source business model with their new operating system, Solaris 10, which they are giving away free, in the hope that it will greatly expand the user base.

Cindy Cohn and Annalee Newitz at the EFF have written a very interesting and thoughtful paper on spam:
Noncommercial Email Lists:Collateral Damage in the Fight Against Spam, suggesting that non commercial mailing lists are suffering disproportionate "collateral damage" in the fight against spam.

My own organisation, the Open University, uses spam management filters and I'm grateful for these because I deal with tens of thousands of emails each year. The result of this avalanche of email is that unless an individual email gains my attention virtually immediately it gets deleted. And anything flagged by spam filters gets instantly deleted.

Cohn and Newitz are right to question the principles, processes and mechanics of spam filtering tools but just as we have information management systems in organisations to filter the right bits of paper and the right phone calls through to the most appropriate people we need information management systems in the electronic realm. How to square that with a sensitivity to be aware of and committment to avoid censorship and maintenance of the end to end architecture of the Net is a complex question to which there are no simple answers.

Bruce Schneier on electronic voting, essential reading.

"After 2000, voting machine problems made
international headlines. The government appropriated money to fix the
problems nationwide. Unfortunately, electronic voting machines --
although presented as the solution -- have largely made the problem
worse. This doesn't mean that these machines should be abandoned, but
they need to be designed to increase both their accuracy, and people's
trust in their accuracy. This is difficult, but not impossible...

...Computer security experts are unanimous on what to do. (Some voting
experts disagree, but I think we're all much better off listening to
the computer security experts. The problems here are with the
computer, not with the fact that the computer is being used in a voting
application.) And they have two recommendations:

1. DRE machines must have a voter-verifiable paper audit trails
(sometimes called a voter-verified paper ballot). This is a paper
ballot printed out by the voting machine, which the voter is allowed to
look at and verify. He doesn't take it home with him. Either he looks
at it on the machine behind a glass screen, or he takes the paper and
puts it into a ballot box. The point of this is twofold. One, it
allows the voter to confirm that his vote was recorded in the manner he
intended. And two, it provides the mechanism for a recount if there
are problems with the machine.

2. Software used on DRE machines must be open to public
scrutiny. This also has two functions. One, it allows any interested
party to examine the software and find bugs, which can then be
corrected. This public analysis improves security. And two, it
increases public confidence in the voting process. If the software is
public, no one can insinuate that the voting system has unfairness
built into the code. (Companies that make these machines regularly
argue that they need to keep their software secret for security
reasons. Don't believe them. In this instance, secrecy has nothing to
do with security.)...


...Proponents of DREs often point to successful elections as "proof" that
the systems work. That completely misses the point. The fear is that
errors in the software -- either accidental or deliberately introduced
-- can undetectably alter the final tallies. An election without any
detected problems is no more a proof the system is reliable and secure
than a night that no one broke into your house is proof that your door
locks work. Maybe no one tried, or maybe someone tried and
succeeded...and you don't know it.

Even if we get the technology right, we still won't be done. If the
goal of a voting system is to accurately translate voter intent into a
final tally, the voting machine is only one part of the overall
system. In the 2004 U.S. election, problems with voter registration,
untrained poll workers, ballot design, and procedures for handling
problems resulted in far more votes not being counted than problems
with the technology. But if we're going to spend money on new voting
technology, it makes sense to spend it on technology that makes the
problem easier instead of harder."

It's a subscription only sevice but the Wall Street Journal is reporting that the cross jurisdictional Gutnick v Dow Jones internet defamation case has been settled out of court. Dow Jones lost their fight to have the Australian courts declare that the case should have been heard in the US. Interesting timing in the light of the UK Court of Appeal decision in the Don King v Lennox Lewis case last week.

Coincidentally, a Canadian archaeologist was awarded large damages in another Net libel case last week. The report claims there has been very little case law in the area of Internet defamation but actually there have been quite a few cases in the US streching back to Cubby v Compuserve in the early 1990s, Stratton v Prodigy and a string of others since. In Autralia Gutnick v Dow Jones has been the precendent setter and in the UK it was Godfrey v Demon. So there are plenty of legal arguments available for Canadian judges to peruse on matters of principle and law, albeit from different juridictions.

Rohde to Srebrenica is a human rights case study project of the Columbia Graduate School of
Journalism, based on David Rohde’s reporting on mass graves in Bosnia.

Computer loophole hits hi-tech NHS trial says the Sunday Times. Apparently there are security problems with the appointments booking system, which gives all doctors access to all GPs' patient records and the facility to edit them.

Also from Sunday, Dan Gillmor laments Microsoft's ability to buy its way out of trouble.

"Microsoft's $536 million settlement with Novell, which had sued on antitrust claims, was big money for Novell. It was less than pocket change for Microsoft, which at last count had nearly $65 billion in cash and short-term investments -- and not a dime of debt.

In a slew of financial settlements with companies Microsoft has trampled over the years, the payout for wrongdoing is roughly $3 billion to date. That represents about three months of profit for a company that literally can't spend its cash fast enough, and is giving shareholders a one-time bonus of $3 a share early next month. That payout will put only a temporary dent in the cash hoard.

What does all this mean? Simple. When governments fail to enforce the rules of capitalism, monopoly profits can buy one's way out of almost any kind of trouble...

...n a report last week about Microsoft's new search technology, for example, the Wall Street Journal observed: ``Microsoft brings a big wallet and a track record of coming from behind in areas that it deems critical. The company belatedly recognized the importance of the Internet and ultimately steamrolled Netscape Communications in Web browser software.''

You'll note there's not even a hint here that one of Microsoft's most essential tactics in achieving that browser dominance was breaking the law. Even the best and most important business newspaper in the world can't be bothered to remember history."

Not Microsoft's biggest fan.

According to the Washington Post, the US Transportation Security Administration has ordered 72 airlines to hand over passenger data to test their new screening program Secure Flight.

The reporter worries that "Any U.S. carrier that shared information with the TSA about European passengers on flights overseas could be placed in a legal bind between the two continents", so presumably is not aware of EU Commissioner Bolkestein's agreement with the US on airline pasenger data sharing. OF course that agreement is currently being challenged by the EU parliament in the European Court of Justice, so her cocerns may well become substantive if the Court does eventually outlaw the agreement.

Creative Commons: Proposal to Explore a Science Commons

So important I hope they don't mind me copying it here in full:

Establishing a Science Commons

The Problem: The sciences depend on access to and use of factual data. Powered by developments in electronic storage and computational capability, scientific inquiry is becoming more data-intensive in almost every discipline. Whether the field is meteorology, genomics, medicine, or high-energy physics, research depends on the availability of multiple databases, from multiple public and private sources, and their openness to easy recombination, search and processing. In the United States, this process has traditionally been supported by a series of policies, laws, and practices that were largely invisible even to those who worked in the sciences themselves.

First, American intellectual property law (and, until recently, the law of most developed countries) did not allow for intellectual property protection of "raw facts." One could patent the mousetrap, not the data on the behavior of mice, or the tensile strength of steel. A scientific article could be copyrighted. The data on which it rested could not be. Commercial proprietary ownership was to be limited to a stage close to the point where a finished product entered the marketplace. The data upstream remained for all the world to use.

Second, US law mandated that even those federal government works that could be copyrighted, fell immediately into the public domain - a provision of great importance given massive governmental involvement in scientific research. More broadly, the practice in federally funded scientific research was to encourage the widespread dissemination of data at or below cost in the belief that, like the interstate system, this provision of a public good would yield incalculable economic benefits.

Third, in the sciences themselves, and particularly in the universities, a strong sociological tradition - sometimes called the Mertonian tradition of open science - discouraged the proprietary exploitation of data (as opposed to inventions derived from data) and required as a condition of publication and replication the datasets on which the work was based.

Each of these three central tenets is now either under attack or subject to serious reservations. For example, in the genetic realm, patent law has moved perilously close to being an intellectual property right over raw facts - the C's, G's A's and T's of a particular gene sequence. In other areas, complex contracts of adhesion create de facto intellectual property rights over databases, complete with "reach through agreements" and multiple limitations on use. More disturbingly, the US is considering and the EU has adopted a "database right" which actually does accord intellectual property protection to facts - upsetting one of the most fundamental premises of intellectual property: that one could never own facts, or ideas, only the inventions or expressions yielded by their intersection.

The Federal government's role is also changing. Under the pressure of the important (and in many ways admirable) Bayh-Dole statute federally funded research in universities is now pushed towards early proprietary exploitation; universities become partners in privatizing and exploiting the fruits of research. While this is a good idea when it encourages the conversion of science into useful products brought to market, it is questionable when the proprietary pressures occur "upstream" at the most fundamental level of data and research. At the same time, universities depend more and more on their intellectual property portfolios, both for income and for positioning in relationships and negotiations with other institutions and for-profit entities.

Under these twin pressures, the third leg of the tripod is also beginning to crack. Scientists may be bound up in confidentiality agreements. Proprietary concerns limit or prohibit the transfer of the full datasets on which they work. Often unconsciously, institutions have begun to encourage secretive practices they formerly frowned on. Science policy, too, has begun to change as universities can no longer be depended on to play the role of public defender for the public domain that they traditionally played in the legislative realm. Around the world, government departments have begun to look at datasets as a source of revenue to be exploited, rather than a public good to be provided. The important National Academy study, Bits of Power, records the tragic consequences that this tendency had in access to satellite and weather data.

Importantly for Creative Commons, many of the tendencies here involve both a collective action problem and a race to the bottom. Universities as a whole might be better off if more data were freely available; for an individual university to pursue such a policy alone is hard, and sometimes foolish: one is reluctant to give away that for which everyone else charges a high price. The same tendency occurs in different ways outside the university setting. The US government frequently buys the same data many times from private parties (private satellite companies, for example). Individual departments do not necessarily have incentives to try and make a deal that will benefit the government or the public as a whole. The same is true when government agencies provide data to private companies who add value to it, and offer it back with better search functions or improved interfaces, but subject to major contractual and legal restraints beyond the particular agency involved. Ideally, there would be standard agreements under which such deals were cut which maximized general social value and research availability, rather than only reflecting the budgetary or research interests of one particular agency.

The Search for a Solution: These facts have not gone unnoticed. Numerous scientists have pointed out the tragic irony that, right at the historical moment when we have the technologies to permit worldwide availability and distributed processing of scientific data and their concomitant promise for broadening collaboration and accelerating the pace and depth of discovery, we are busy locking up that data and slapping legal restrictions on transfer. Learned societies including the National Academies of Sciences, federal granting agencies such as the National Science Foundation, and other groups have all expressed concern about the trends that are developing. Much attention has been focused on proposals for legislative change, which - while important - will be both extremely hard to push through and an incomplete solution. Any solution will be need to be as complex as the problem it seeks to solve, which is to say it will be interdisciplinary, multinational, and involve both public and private initiatives. What's more, judicious balance is needed: the tendency to claim that property rights are never the answer, or that openness always solves all problems, must be avoided.

Enter "Science Commons": Creative Commons was formed to deal with a problem of access to materials caused by the conjunction of technological developments - computers' increasing capability to store and process data vastly enhanced in effect by interconnection via the World Wide Web - and legal change. With much at stake and so many stakeholders, the debate over control of creative work and information now tends to the extremes. At one pole is a vision of total control in which every last use of a work - or even data - is regulated and in which "all rights reserved" (and then some) is the norm. At the other end is a vision of anarchy, a world in which creators enjoy a wide range of freedom but are left vulnerable to exploitation.

In many arenas the default rule, or standard operating procedure, has become "lock it up". Balance, compromise and moderation, once the driving forces of an intellectual property system that balanced private reward with public gain and protection with innovation, have become endangered species. Creative Commons is working to revive these principles and practices. We use private rights to create public goods: creative works set free for certain uses.

Creative Commons now enables creators to select among various license options to make their work available to the public on generous terms, and then applies three layers of licenses (in legal, lay and machine-readable languages) and descriptive metadata to their work. Attendant to our development of licenses and Internet applications enabling creators to license their work to the public, we are also engaged in these projects (among others):

Tagging various kinds of file formats with Creative Commons metadata

Increasing the number of ways people can search for free or licensed work in an end-to-end system without relying on a centralized, authoritative database

Developing tools, services and educational projects to enable alternatives to maximum content control

Translating the Creative Commons system into numerous languages and national or regional legal systems (including special licensing provision for developing nations)

Connecting with the World Wide Web Consortium to promote "semantic web" tools to allow machines to communicate a richer set of information about files and pages on the Net.

Forging agreements with universities, tech companies, and others with competing interests to enhance the public's access to proprietary content. See http://creativecommons.org/learn/collaborators.

CC's charge initially was entirely in the cultural and copyright realms - in the world of music, texts, blogs, pictures, films, and so on. Nevertheless, at the first board meeting, the founding board members expressed strong interest in the possibilities of developing the creative commons model in the scientific area, should it appear that the technologies and expertise we were developing might usefully apply there. Several times, in fact, board members expressed the feeling that the Creative Commons approach might be more of a "killer app" in science than in culture. Recognizing that developing open pathways for scientific research will be complex and contentious, the Creative Commons board did not feel that at that point we had the expertise or the technical capability to enter this field. We now believe that we do.

What could Creative Commons bring to the world of science? In a single sentence, the answer is this. Creative Commons is a disinterested party with remarkable experience in the formation and deployment of well-written, accessible, machine- and human-readable licenses that guarantee wider availability of material while preserving some selected intellectual property rights. Along with scientists, patent and university IP lawyers and scholars, we believe that this particular conjunction of features might encourage an enormously valuable thaw against the freeze-in of scientific data. We anticipate that there will be a major role for well-written, standard form, machine- and human-readable agreements:

Between funders and grant recipients, requiring greater access to data.

Between universities and researchers, prohibiting collectively the most toxic types of restrictions on data, and guaranteeing a level and open playing field of access to data.

Between government agencies who are purchasing data from or providing data to, private commercial concerns, so as to develop standard terms that benefited the public and research as a whole.

In any or all of these areas, a Science Commons division of Creative Commons could play an important role.

Advantages:

i.) Disinterest: Unlike universities, scientists, learned societies, publishers, or the National Science Foundation, Creative Commons is neither a provider nor a recipient of research science dollars. We do not produce, consume, sell or distribute scientific data, nor rely on its openness, or its restriction for our existence. To differing extents, every other group at the table has a particular set of interests in the outcome of debates on this issue - some of which might be more or less congruent with the public interest. Our position of relative disinterest might help to facilitate a role in the discussions - whether as "honest broker," technical and legal advisor, or policy entrepreneurs, bringing new solutions to old problems.

ii.) Experience in Licensing Solutions: Many of the things that we have learned in forming the Creative Commons do not translate completely to the world of science policy. We dealt primarily with copyright - here the issues would also involve patent and trade secret. We were dealing with a very large number of individuals with little legal expertise who were not repeat players in the system. Here we would dealing both with individuals who fit that model to some extent (scientists, low level administrators in government departments). But we would also be dealing with well-funded sophisticated repeat players (universities, national funding bodies.) Nevertheless, a number of the types of expertise that Creative Commons has developed valuably apply here.

Machine Readability: It might be advantageous for some datasets to travel with their electronically expressed licenses. The ability to combine those datasets without worrying about obscure contracts hidden in some general counsel's office a continent away would be a major benefit.

Human Readability: We have considerable expertise in writing licenses that non-lawyers (in this case, scientists, researchers and administrators) can understand. If material is to be open in practice, rather than in theory, this will be a vital point.

The drafting process: The process of drafting the licenses in such fields will be extremely complex, involving negotiating skills, and the need for widely respected, disinterested and legally expert participants. It will also require considerable involvement from different communities, and - above all - the need to secure "buy in" from the various groups involved, all of whom have incentives to want it to succeed, but have differing interests that have to be explained, translated and negotiated. Creative Commons has a fair amount of experience in these tasks, experience that would appear to have a role to play in the world of science, supported by active pro bono representation by several top law firms.

Internet Architecture and Software Development: Our Technical Advisory Board, headed by one of our directors, Hal Abelson (Professor of Electrical Engineering and Computer Science at MIT), couples extraordinary sophistication in the architecture and functionality of the Internet with great skill in writing software for our applications.

iii) Recognition and good will: Launched in December, 2002, Creative Commons quickly established itself as an important, innovative player. Numerous prominent institutions and organizations have adopted Creative Commons* licenses to make their content available online to the public. Examples include

MIT's Open Courseware project,
http://ocw.mit.edu/index.html

Berklee School of Music, Berklee Shares online education project
http://www.berkleeshares.com

Rice University's Connexions, interactive courseware and repository,
http://cnx.rice.edu/

The Public Library of Science, a world-class open-access journal,
http://www.publiclibraryofscience.org/

OYEZ, audio archives of U.S. Supreme Court arguments since 1950s
http://oyez.org

Opsound, an archive of hundreds of openly licensed sounds and songs,
http://www.opsound.org

The Internet Archive, a nonprofit offering free hosting of text, audio, video, and web materials,
http://www.archive.org

eMultimedia Training Kit, training materials sponsored and used by UNESCO,
http://www.itrainonline.org/itrainonline/mmtk/index.shtml

A search on All-the-Web (a popular search engine) shows more than 1,000,000 licenses back-linked to Creative Commons. Searches on Google for the phrase "This work is licensed under a Creative Commons license" (the words attached to every licensed work) increased 316% between February to July 2003. In addition to substantial grants in place from the MacArthur Foundation and the Foundation for the Public Domain, in July 2003 Creative Commons was awarded a $1 million grant from the Hewlett Foundation.

Suggested Reading:

Bits of Power: Issues in Global Access to Scientific Data, National Academies Press (1997), http://www.nap.edu/readingroom/books/BitsOfPower.

Jerome Reichman & Paul Uhlir, A Contractually Reconstructed Research Commons for Scientific Data in a Highly Protectionist Intellectual Property Environment 66 Law & Contemp. Probs. 315 (Winter/Spring 2003), http://www.law.duke.edu/shell/cite.pl?66+Law+&+Contemp.+Probs.+315+(WinterSpring+2003).

Essays on the Public Domain, (special editor James Boyle) Law & Contemporary Problems 2003, http://www.law.duke.edu/journals/lcp/indexpd.htm.

Professor Pamela Samuelson is offering a course on Peer-to-Peer (P2P) Technology: Legal and Policy Challenges in the Spring of 2005. Her comprehensive reading list will provide anyone who tackles it seriously with a sound grasp of the issues.

From The Guardian, "The European commission, which fined Microsoft a record €497m (£345) this year for abusing its dominant position, yesterday vowed to continue pursuing the US software group through the courts for anti-competitive behaviour...

...EC officials were scathing about Microsoft's alleged efforts to "buy the silence" of rivals. On Monday it reached a $536m settlement with software maker Novell, and a ceasefire with the US Computer and Communications Industry Association. As part of the settlements, both withdrew from the Brussels case."

Finalist number 10 in the Nokia shorts contest takes a dig at the cinema ads about copyright infringement.

Some cinemas do indeed now monitor the cinema audience with night vision goggles. The severity of the sanctions imposed upon someone caught illegally recording from the big screen usually amount to getting ejected from the film and reported to the police.

Contrary to the claims of the copyright notices UK cinemas now display before film showings, however, copyright infringement is not yet a criminal offence in the UK. This will probably change when the intellectual property rights enforcement directive, passed by the EU earlier this year, eventually gets implemented in the UK.

Using a camcorder in a cinema is a crime in some areas of the US, such as California, however, and there have been a number of people arrested under the relevant statute passed in January 2004.

The conspiracy theorists are flying with the idea that the electronic voting machines were hacked to swing the US Presidential election for George Bush.

I'll need to see more evidence than the claim that the exit polls could not have been so wrong. But expect this one to run for a while.

In the thick of lots of other things I neglected to report that the European Court of Justice turned down the EU Parliament's request for a speedy review of the agreement between the EU and US on airline passenger data sharing. The decision was on procedural grounds - the Parliament essentially used the wrong forms and asked for the wrong things in the wrong way.

The Court's substantive review of the agreement will still go ahead but we're unlikely to get a decision now before the end of 2007, by which time we should have some empirical data on real impact of the agreement.

The MPAA have decided the time is right to sue hundreds of individuals who apparently download films illegally over P2P networks.

The Next Wave: Liberation Technology BY JOHN M. UNSWORTH Lovely overview of the choices the education sector face on questions of openness.

Cliff Richard is not happy that his pension fund is getting robbed by the expiry of the copyright on his earlier music recordings.

“As I get older I am told that I have achieved many chart ‘firsts’. Now I am the first person to be deprived of income simply because I have outlived the copyright on my sound recordings.”

I don't doubt that having been briefed by his record label he's believes what he is saying but "deprived of income", Sir Cliff? How much money have you already made during the 50 year monopoly over these recordings?

"Many artists rely on one hit record as their sole source of income, but now they will earn nothing. I feel a responsibility to speak out for them.”

I don't know how much actual work artists put into delivering a hit but I'm sure it varies. Suppose it amounts to a month, including 2 days recording, some spots on TV and radio to promote the hit and some concerts. I wouldn't mind retiring comfortably on the proceeds of a month's (or even a year's) work.

"IT IS the greatest pension fund raid of all time." is the line that opens the piece, so presumably that was written by a music industry PR person? More blind/lazy publishing, by the media, of propaganda from copyright extremists this time at the industry end of the scale.

So much for maintaining a sense of proportion and balance.

Mexico are extending the term of copyright to life of the author plus 100 years. Watch out, in the next few years, for entertainment industry lobbyists calling for the US and EU to "harmonise" their terms with Mexico's.

It seems I misspoke when I said the detailed study on Safe Harbour had not been released yet. It has.

The EU have released a report on the workings of the EU and US agreement on privacy "Safe Harbour" provisions. The report and the detailed study it has been based on (which has not yet been released) seem to find significant shortcomings in the compliance of self certifying companies with the requirements of the agreement. The report reaches a number of conclusions:

1. They're pleased that more than 400 US organizations are using Safe Harbour but would like more involved.

2. They're concerned that many of the companies involved either have not published a privacy policy or have privacy policies which do no comply with the Safe Harbour Principles. This means the Federal Trade Commission who are supposed to police companies compliance with their own polices can't do this. The report at this point also suggests the US Department of Commerce could be a bit more careful in scrutinizing self certifying organisations.

3. The Department of Commerce should provide facility on their website to let organizations "state their commitment to comply with the advice given by the EU panel in the event of a dispute without which the FTC would be unable to enforce compliance with the advice of the EU panel."

4. Mechanisms of recourse available in the case of non compliance exist but are weak and in some cases fail to comply with the Safe Harbour Principles.

5. "...given that up to 30 per cent of the companies that subscribe to the Safe Harbour Principles do so to import human resources data clear guidance is needed as to whether the FTC is competent to enforce the Principles in this area is needed."

Not exactly a ringing endorsement then.

The EFF have set up a website, undecureflight.com for posting comments on the US government's "Secure Flight" project which replaces the old CAPPS II system for assimilating airline passenger data.

This is just one strand some really fascinating political developments ongoing in Washington at the moment, with the imminent presidential election and following the publication of the best selling 9/11 Commission Report.

The BBC had another interesting documentary about part of the story on Wednesday evening last, called The Power of Nightmares. It was the first of a three part series in which Adam Curtis analyses the origins of the US neo-conservative movement and the parallels with the development of organisations like Al Qaeda.

By coincidence yesterday, just as I was writing the bit of my submission to idealgovernment.com mentioning Acacia's patent lawsuits against educational institutions, someone sent me an email about an update to developments in Acacia's lawyerland. 

It seems that the owner of the much disputed sex dot com domain name, Gary Kremen, has donated a large sum to the adult media (i.e. pornography) industry's defense fund in their ongoing patent litigation with Acacia.

Apparently US passports are going to have embedded RFID chips. They haven't come across Bruce Schneier's lucid explanation about why this is a bad idea then?

Don King and Lennox Lewis went to battle in the UK Court of Appeal over the summer over libel allegations. The Court has made its judgement this week and the interesting point is that the court contends that in Net libel cases, publication takes place in the jurisdiction where the offending material is downloaded. This follows the basic ideas outlined in the Gutnick v Dow Jones case in Australia and indeed the Court of Appeal make a significant reference to Gutnick.

They do partly cover the area of "jurisdiction shopping" i.e the notion that the claimant looks around for the jurisdiction where they are likely to get the most favorable settlement. Their view as to the appropriate forum is that it should be a question for the judge, taking account of all the appropriate circumstances of the particular case. Their guiding reference on this point comes from a shipping dispute case, Spiliada Maritime Corp. v Cansulex Ltd.

With apologies to those of you who have difficulty with legalese, it is worth quoting the relevant extract from Lord Goff's decision in the Spiliada case:

"The key to the solution of this problem lies, in my judgment, in the underlying fundamental principle. We have to consider where the case may be tried ‘suitably for the interests of all the parties and for the ends of justice.’ Let me consider the application of that principle in relation to advantages which the plaintiff may derive from invoking the English jurisdiction. Typical examples are: damages awarded on a higher scale; a more complete procedure of discovery; a power to award interest; a more generous limitation period. Now, as a general rule, I do not think that the court should be deterred from granting a stay of proceedings… simply because the plaintiff will be deprived of such an advantage, provided that the court is satisfied that substantial justice will be done in the available appropriate forum. Take, for example, discovery. We know that there is a spectrum of systems of discovery applicable in various jurisdictions… No doubt each of these systems has its virtues and vices; but, generally speaking, I cannot see that, objectively, injustice can be said to have been done if a party is, in effect, compelled to accept one of these well-recognised systems applicable in the appropriate forum overseas… Then take the scale on which damages are awarded. Suppose that two parties have been involved in a road accident in a foreign country, where both were resident, and where damages are awarded on a scale substantially lower than those awarded in this country. I do not think that an English court would, in ordinary circumstances, hesitate to stay proceedings brought by one of them against the other in this country merely because he would be deprived of a higher award of damages here.

But the underlying principle requires that regard must be had to the interests of all the parties and the ends of justice; and these considerations may lead to a different conclusion in other cases… [T]ake the example of cases concerned with time bars… Now, to take extreme examples, suppose that the plaintiff allowed the limitation period to elapse in the appropriate jurisdiction, and came here simply because he wanted to take advantage of a more generous time bar applicable in this country; or suppose that it was obvious that the plaintiff should have commenced proceedings in the appropriate jurisdiction, and yet he did not trouble to issue a protective writ there; in cases such as these, I cannot see that the court should hesitate to stay the proceedings in this country, even though the effect would be that the plaintiff’s claim would inevitably be defeated by a plea of the time bar in the appropriate jurisdiction. Indeed a strong theoretical argument can be advanced for the proposition that, if there is another clearly more appropriate forum for the trial of the action, a stay should generally be granted even though the plaintiff’s action would be time barred there. But, in my opinion, this is a case where practical justice should be done. And practical justice demands that, if the court considers that the plaintiff acted reasonably in commencing proceedings in this country, and that, although it appears that (putting on one side the time bar point) the appropriate forum for the trial of the action is elsewhere than England, the plaintiff did not act unreasonably in failing to commence proceedings… in that jurisdiction within the limitation period applicable there, it would not, I think, be just to deprive the plaintiff of the benefit of having started proceedings within the limitation period applicable in this country… "

US commentators will likely be critical on free speech and most restrictive regime grounds but it's a thoughtful analysis of the issues, (even if I don't completely agree with it).

Singapore are going to jail copyright infringers.

People who download copyrighted material face large fines and 6 months in jail or 3 years in jail for repeat offenders. It's apparently not aimed at kids but those who seek to gain a commercial advantage.

If you're interested in computers in education, I've just made a contribution on the subject to William Heath's idealgoverment site.

Incidently, Robert Cringely also has a plan to improve voter turnout in elections - get those who are enthusiasts to encourage 3 apathetic friends. You could call it the pyramid nagging voter scheme.

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.