Business support for ID cards collapses

According to Life Style Extra, business support for compulsory biometric ID cards has collapsed.

Defending Google's licence to print

Bill Thompson at the BBC thinks Google Print is a great idea and is not impressed at the Authors Guild lawsuit to impede the project.

Fingerprint payments taking off

Robert Lemos at Security Focus reports that fingerprint payments are taking off in spite of the security problems associated with the approach.

Dear Recording Industry...

At Brainwash Tim Lee has written an open letter to the recording industry:

"Dear Recording Industry,

You're being had.

Online music sales have soared, from $220 million in the first half of last year, to $790 million in the first half of this year. Millions of consumers are discovering the convenience of buying music online. There's just one problem: if you don't change your strategy, you're going to give the store away to Apple CEO Steve Jobs. His iTunes Music Store is the industry leader, and thanks to digital rights management (DRM) technology, every customer who buys your products from the iTunes Music Store becomes locked into Apple products. If that's not changed, that will soon make Steve Jobs the most powerful man in your industry.

Fortunately, there's an easy solution: when you renew your contract, you should demand that Apple remove the digital rights management (DRM) technology from the iTunes Music Store.

Yes, you read that right: you need to stop letting Apple use DRM technology with your songs. I know that DRM was originally developed at your request, but I hope to persuade you that that was a strategic blunder. If you don't correct it, you run the risk of making Apple's shareholders very wealthy at your expense..."

Read on. He makes a lot of sense.

GlaxoSmithKline pay $150 Million in false-Claims case

From Findlaw, GlaxoSmithKline Settles False-Claims Suit for $150 Million:

"Pharmaceutical powerhouse GlaxoSmithKline will pay $150 million to settle a whistle-blower action accusing the company of inflating cancer-drug prices and defrauding the federal Medicare, Medicaid and Tricare programs, according to the U.S. Department of Justice.

The settlement agreement reports that Philadelphia-based GSK denied the allegations but agreed to pay the money and change its drug marketing practices to avoid the expense and inconvenience of litigation."

Judge convicts hacker with "considerable regret"

A security consultant has been convicted under Section 1 of the UK Computer Misuse Act, of unauthorised access to the Disaster Emergency Committee's tsunami fundraising web site. Yet it was agreed by all sides that he had not done anything malicious. However, the law effectively applies a strict liability test and unauthorised access is a crime regardless of the motive of the perpetrator. As the judge said, "unauthorized access, however praiseworthy the motives, is an offense."

Peter Sommer of the London School of Economics reckons the police should have just given him a slap on the wrists. Even the judge said he was convicting "with some considerable regret."

The defendant, Daniel Cuthbert, has lost his job and is having difficulty finding another. Apparently he lied to the police when first arrested, which could have been the reason they decided to prosecute, even when the full circumstances of Cuthbert's actions came to light. The folks working in high tech crime units are over-worked and under-resourced. And I wonder to what the degree the politics of the need for successful convictions drove this case but on balance I agree with Peter Sommer. The prosecution of someone with no malicious intent, who has done no damage, though he has admittedly wasted scarce specialist police ressources, was not in the public interest.

Thanks to Seth Finkelstein for the link.

EU & Canada airline passenger data deal

I missed this last week:

"The EU has signed a deal with Canada that will allow European airlines to provide Canadian authorities with details of who is scheduled to fly on planes headed for the country."

Thanks to Steve Hedley for the link.

Larry's letter

Larry Lessig will be writing a weekly newsletter about creative commons between now and Christmas. You can read his first one online, naturally.

Analysis of the Sony v Stevens mod chip decision

Kim Weatherall has an insightful analysis of the Sony v Stevens Australian High Court decision I mentioned earlier.

"Even though the law considered by the High Court will all change, the judgments get at something which is fundamental, but which it is easy to forget. And that is this:

that the technical measures used by Sony are not, in essence, about preventing infringement of copyright.
Infringement happens regardless of whether measures like Sony's are used. While anti-circumvention laws are sold as being about 'preventing piracy', the fact remains: the Sony measures do not prevent infringement, no matter which way you turn it. That's why, in the end, the court has decided the way it did.

In reality, measures like those used by Sony are about controlling use of and access to Sony PlayStation consoles. Sony controls all kinds of things about the way people use Sony consoles. For example: they control whether people can:

play legitimately purchased games sold in overseas markets;

play games created by someone other than Sony on the Sony console (something that cannot be done on a non-chipped console owing to the absence of an access code).

So while Sony can argue that it wanted to prevent piracy (it clearly did), and that the measures acted in part to deter piracy (they clearly could), Sony's own approach to the measures muddies the waters. It doesn't just act to prevent infringement, and that point is taken notice of by the Court here. One can't help but suspect the legal reasoning would look different, in this case, if Sony only used its power over the console to actually prevent use of 'pirated' disks. The way Sony goes about its business quite apparently takes its measures outside the heart of what is covered by the legislation: and justifies the High Court's approach."

Declaration of InDRMpendence

David Berland at ZDNet has issued his own declaration of inDRMpendence.

"Earlier today, after describing to a close friend the rock and the hard place that I'm between since I can't easily play the 99 cent songs I buy through Apple's iTunes music store on my $20,000 whole home entertainment setup, he said "Dave… check out Sonos' solution. It'll solve your problem for about $500 per room."

Not that I have another $500 per room to spend, but I checked into it and the solution is indeed very cool. The units that you put into each room wirelessly form a self-organized mesh and just one of them needs access to your music library on a computer or network attached storage (NAS) device. Unfortunately, if I buy Sonos' gear, it appears as though I'll run in the same problem that I'm already having. According to a technical specifications page on Sonos Web site, "DRM-encrypted and Apple or WMA Lossless formats not currently supported." In other words, songs purchased through iTunes that are wrapped in Apple's FairPlay digital rights management (DRM) envelope won't work. Neither will songs you buy from stores based on Microsoft's DRM technology found in content purchased through PlaysForSure-logoed merchants (eg: Napster-to-Go). While I hate to be the breaker of bad news, I sent him an e-mail explaining the situation.

But now that DRM is coming up on my radar every day, and the more I read about it (on the Web, in our TalkBacks, and in my e-mail), the angrier I get. To vent, I've decided to start regularly ranting about DRM. "

It's a very readable rant if you're concerned about drm.

First Monday on Open Source

First Monday have issued a special edition devoted to open source.

Mum targets RIAA with every available law

The Recording Industry v the People blog has more details on a woman who got targetted by the RIAA for copyright infringement.

"ATLANTIC V. ANDERSEN

This is the case peer-to-peer file sharers have been waiting for. Tanya Andersen, a 41 year old disabled single mother living in Oregon, has countersued the RIAA for Oregon RICO violations, fraud, invasion of privacy, abuse of process, electronic trespass, violation of the Computer Fraud and Abuse Act, negligent misrepresentation, the tort of "outrage", and deceptive business practices."

Are books good for you

Michael Madison thinks it is a "great time to be a copyright lawyer" and that we should think carefully about the massive digital archives of printed works that Google (Authors Guild lawsuit notwithstanding) and Yahoo and others are creating.

"If we care about books as such, and if we care about libraries as repositories for books, then we should think carefully about how to manage Google’s and Yahoo’s proposed transition from atoms to bits."

Uk copyright term extension debate

Larry Lessig has been back in the UK for another debate on copyright term. Suw Charman was making notes.

"RSA, IPPR, PCMLP Lecture

Prof. Lawrence Lessig, Creative Commons
John McVay, CEO of PACT (representing film and TV producers)
Adam Singer, CEO of MCPS and the PRS (musicians' royalty collecting societies)
Moderated by John Howkins, RSA

My preamble
I really enjoyed this debate, although I was a little surprised to see quite a lot of agreement between the panellists. Not sure how much of this was just out of a desire on the part of John McVay and Adam Singer not to get into a fierce debate in public, and how much was genuine agreement with the points that Larry Lessig was making. But I was pleased to see Adam and John take the stage with Larry - Adam joked a couple of times about how he'd get fired for publicly agreeing with Larry, and I there were definitely undercurrents that some of his constituents would likely not be happy with this event even taking place, so all credit to him for resisting pressure and helping make this debate happen.

It would be easy to paint the industry as the antichrist, and in fact I have heard Adam described as just that (ironic, then, that he joked about how some people in the industry see Larry as the antichrist). But picking an extreme standpoint and sticking to it is not always the best way to progress towards a reasonable compromise and it was encouraging to see Adam acknowledging some of Larry's points as valid and to see Larry suggesting potential middle paths.

I do have to disagree with Larry on one point, though. I don't think copyright term extension in the UK/Europe is inevitable. Maybe I'm just being optimistic, but software patents were defeated, and I think that we can defeat term extension too. But we need to start debating this in public now, not wait until it gets to a crucial juncture in parliament.

So, now, on to the notes from the evening..." here.

Aussie High Court rule in Playstation2 mod chip case

The High Court of Australia (the highest court in the land) has made its ruling in Stevens v Kabushiki Kaisha Sony Computer Entertainment. From the press release:

"The High Court of Australia today allowed an appeal against a finding that Mr Stevens’s modifications to Sony PlayStation consoles to allow unauthorised copies of games to be played were illegal."

This is the first time a country's highest court has ruled in a so called "mod-chip" case, to deal with "technological protection measures" (a form of digital rights management). At least two men have been jailed in the US for installing mod chips on gameboxes such as Sony's Playstation2 or Microsoft's Xbox.

At issue was Steven's installation of mod chips in Sony Playstation2s, which allowed users to play Playstation2 games legitimately bought in the US, for example (or other noncompatible geographic zone). Sony's Playstations, like most DVD players, have digital locks which prevent the device playing games sourced from a different geographic zone from which the machine itself was bought. The digital lock system allows the PlayStation2 to search CDs or DVDs for embedded codes identifying them as authorised games which the console will play. If it can't find the codes, it will not play the CD or DVD.

As in the US and the EU it is illegal in Australia to bypass copyright protection technologies and it seems the case turned on the specific definition of "technological protection measures." The court decided that Sony's digital locks did not qualify as "technological protection measures" because they didn't inhibit copyright infringement.

By contrast, Sony efforts to shut down similar mod chipping operations in the UK have proved successful, most notably in the Sony v Owen case which is very similar to the Stevens case in Australia.

Thanks to Pamela Jones for the news. Kim Weatherall will be producing a commentary shortly.

And since my own University will be releasing my internet law course openly soon (again), I'd better update the part that deals with the mod chip cases!

Yahoo challenge Google on books

Katie Hafner, writing in the New York Times, characterises Yahoo's decision to digitise thousands of books as a direct challenge to Google.

"An unusual alliance of corporations, nonprofit groups and universities plans to announce today an ambitious plan to digitize hundreds of thousands of books over the next several years and put them on the Internet, with the full text accessible to anyone.

The effort is being led by Yahoo, which appears to be taking direct aim at a similar project announced by its archrival, Google, whose own program to create searchable digital copies of entire collections at leading research libraries has run into a series of challenges since it was announced nine months ago.

The new project, called the Open Content Alliance, has the wide-ranging goal of digitizing historical works of fiction along with specialized technical papers. In addition to Yahoo, its members include the Internet Archive, the University of California, and the University of Toronto, as well as the National Archive in England and others."

Yahoo, contrary to Google, intend to make their book index searchable via any search engine.

Latest EDRi-gram published

The latest EDRi-gram, as usual, has a load of interesting and important stories.

A Spanish programmer who was facing jail for creating a video game which made fun of a Holy Week procession, amongst other things, has been aquited.

The European Commission has launched a public consultation on its program to digitise the collections of European libraries.

In the past nine months, 50000 people (including 4000 children) have been fined in Holland for not producing ID when requested to do so by police.

Also prominant is a note about FIPR's analysis of the proposal for another intellectual property enforcement directive.

Will Google censor books in Google Print

Public Interest Watch seem to think that Google are planning to censor some of the books they scan for the Google Print project. Peter Suber doesn't buy the warning.

" On its web site, PIW describes its mission as "Keeping an eye on the self-appointed guardians of the public interest." OK. But PIW is another self-appointed guardian of the public interest. If I may appoint myself as someone to keep an eye on PIW, then my recommendation is: use less caffeine. The PIW warning is an overreaction. I'm familiar with cases of Google capitulation to the Chinese government and the Church of Scientology and I join PIW in deploring them. But PIW cites no evidence that Google has censored passages from the books in the Library project. Moreover, PIW makes inconsistent recommendations about the risk of book censorship. Libraries can't both (1) withhold their books from Google indexing and (2) demand guarantees of uncensored indexing. PIW also seems unaware that Google's contract with the participating libraries gives the libraries a role in deciding what content Google will index (Par. 2.1) and the right to back out if Google's indexing doesn't live up to the agreed-upon guidelines (Par. 2.4)."

Have to say I'd never heard of "PIW" before. Suber, on the other hand, has a long track record of understanding the open access landscape.

$100 laptop

Susan Crawford is pleased with the MIT Media Lab initiative " to get tens of millions of inexpensive laptops into the hands of children in developing nations around the world."

Sun enlist Google to fight Microsoft

It looks like you're planning to smash Microsoft into oblivion. Perhaps I can help says John Paczkowski.

Criminal software

Can writing software be a crime? So asks Mark Rasch in the Register.

"Can writing software be a crime? A recent indictment in San Diego, California indicates that the answer to that question may be yes. We all know that launching certain types of malicious code - viruses, worms, Trojans, even spyware or sending out spam - may violate the law. But on July 21, 2005 a federal grand jury in the Southern District of California indicted 25 year old Carlos Enrique Perez-Melara for writing, advertising and selling a computer program called "Loverspy," a key logging program designed to allow users to capture keystrokes of any computer onto which it is installed. The indictment raises a host of questions about the criminalization of code, and the rights of privacy for users of the Internet and computers in general."

FIPR response to 2nd IPR Enforcement Proposal

FIPR have produced a considered response to the UK government's consultation on the latest EU proposal for a second intellectual property rights enforcement directive. (The original was passed in the Spring of 2004). I hope Ross Anderson, the chairman of FIPR and author of the response, won't mind me quoting large chunks here:

"The Foundation for Information Policy Research strongly opposes the new enforcement directive.

I will focus on the main issues.

Until now, large-scale copyright or trademark infringement has been a crime here, while patent infringement has been a matter for civil litigation. The new proposal will force the UK to make patent infringement a crime, and to criminalise incitement to infringement.

First, the criminalisation of patent infringement will damage competition, resulting in higher prices for consumers. For example, companies who make generic drugs once the molecule patent has expired are often harrassed by the original patent holder with lawsuits over secondary patents - which have a low probability of success but which are used cynically to delay competition by a year or two...

Second, new business formation and economic growth will also be hit, especially if patent infringement remains a civil matter in America. At present, all technology entrepreneurs take risks with intellectual property. There are so many patents, written so obscurely, that it's impractical to read them all; and many patents don't stand up in court once people dig hard for prior art. So a sensible entrepreneur will just start a business, and if it's successful she will have the money to pay royalties if she has to. Making patent infringement a crime rather than a civil matter will undermine this - especially as it will happen only in Europe, not in the USA. The natural reaction of European entrepreneurs will be to move to America and start their businesses there. (It's particularly interesting to note that while Microsoft is lobbying for IPRED 2 in Brussels, it's lobbying in the USA for less severe civil damages there - see here.)

Third, the criminalisation of aiding and abetting will create pressures for censorship. Phone companies and ISPs will be asked to filter Internet traffic for potentially infringing material...

Fourth, the UK software industry will be particularly vulnerable, as will people who rely on free and open-source software platforms. The Software Directive permits EU companies to reverse engineer their competitors' products in order to produce compatible, competing products. This is a historic compromise, worked out 17 years ago to promote enterprise and competition while still respecting the rights of incumbents. IPRED 2 will undermine it...

A particularly pernicious threat to free and open source software will come from the predatory abuse of IP by its enemies. At present Microsoft is reported to be funding SCO to bring civil cases against firms such as IBM that use GNU / Linux in their products...

Fifth, the disabled could be hit as the tools necessary to read copy-protected books, in order to make lawful `talking' versions of them under fair-use provisions of copyright law, could be criminalised.

Sixth, librarians already have a lot of trouble complying with copyright. For example, in the UK there are about fifty different durations of copyright, depending on whether the material is published and in what media. With electronic publications, there are often contract terms too: a library typically has dozens of contracts, all with different conditions. The current proposals will make this worse by making librarians criminally liable for aiding and abetting, unless they become more active enforcers of copyright law in their libraries. And since copyright infringements are not necessarily black and white, and librarians' employers are risk-averse, libraries will err on the safe side and discourage practices which would not actually be deemed infringements by a court. This will reduce, in practice, the freedoms to copy that UK citizens enjoy in theory.

Seventh, universities will also feel the squeeze. Academics often put preprints of papers on our web sites, which can be a technical infringement if the papers are subsequently published in a journal whose contract restricts it. Also, we suffer increasing harrassment by the record industry over students swapping songs. If university managers can be jailed as accessories for all copyright infringement that is claimed to have a commercial effect, then they will be much more aggressive at policing the content that passes over their networks - which will be profoundly contrary to academic values.

There is a specific concern for people who engage in security research. The Directive does not contain any exemption for research; it may become technically illegal to possess a laser (as it can be used to forge a hologram), or a magnetic-card reader-writer (as it can be used to forge a credit card)...

Finally, there are issues of justice. Previously most companies preferred to sue over copyright infringement rather than to bring criminal charges, because they could get discovery, injunctions and damages (see, for example, Cornish's textbook `Intellectual Property'). By insisting that Member States make such remedies available to the injured parties in criminal cases about intellectual property, the Directive will distort the system of justice itself. The police will be able to demand information from defendants in copyright cases that they are not allowed to demand even in terrorism cases (see `Brown gets tough on France, Italy over trade', Evening Standard, 9 September 2005 p 10). This will lay ministers open to ridicule from both the IP-rights lobby and the law-and-order lobby at the same time. Is that what you want to achieve?

The UK's interests are not at all well served by this directive, and I strongly urge you and your colleagues to use the opportunity of the UK Presidency to kick it into touch."

Becta adopt open source for schools

The UK Government's educational technology agency, Becta, are deploying an open source authentication system across the entire schools sector.

Yahoo's version of Google Print - lawsuit free

Yahoo have launched their own version of the Google Print project,

"Yahoo is working with the Internet Archive, the University of California and others on a project to digitize books in archives around the world and make them searchable through any Web search engine and downloadable for free, the group was set to announce Monday."

Mother targetted by RIAA sues in return

From P2PNet: "Victim sues RIAA under RICO Act"

Tim O'Reilly, The Trend Spotter

Steven Levy has done a great profile of Tim O'Reilly in Wired.

Is privacy law "environmental law" for the information age?

Dennis Hirsch of Capital University Law School asks some intersting questions in his paper, Is Privacy Regulation the Environmental Law of the Information Age?

Ever since James Boyle raised the analogy of the environment in the context of intellectual property and the public domain, I've been thinking it has a resonance across a multitude of policy areas in the information society. Dr Hirsch's paper focuses on the potential for environmental covenants, environmental management systems and emission fees to provide models for privacy regulation but there are, as he recognises, many more.

And in Who's in Charge of Who I Am? Identity and Law Online, Susan Crawford takes an insightful look at our online personas and whether we have enough control over the data associated with them.

"As we enter this new century, identity online seems full of opportunity. Someday virtual world identities will be just as important as real identities - just as ecommerce has become indistinguishable from commerce. Control over online avatar identities will have many real-world consequences, because these clouds of bits may include our credit records, our buddy lists, our job records, personal references and other reputational information, medical histories, certifications, and academic transcripts. As soon as something is valuable and persistent, we seek to associate rights and duties with it. What will be the law of online identity to which those rights apply? And what will those rights be?"

Thanks to Steve Hedley for the links.

Google CEO has Yahoo email address

John Naughton and his colleague, Conal Walsh, express concerns about Google's impact on our personal privacy in the Observer today.

They both have some very valid points, of course. Google CEO, Eric Schmidt, (who, interestingly enough, has a Yahoo email address) recently fell out with the CNET News folks for publishing personal information, which they had found by doing a search on Google. The threat not to speak to CNET reporters for a year has been quietly dropped this week, though.

NYT Reporter Miller testifies

New York Times reporter, Judith Miller, has testified before a grand jury in the investigation into the White House leak of CIA agent Valarie Plame's identity. Plame's name was leaked to the press after her husband, former Ambassador Joseph Wilson, had publicly criticised the Bush administration. Miller had spent 85 days in jail having previously refused to reveal her source.

Compare and Contrast

Donna says we should compare the perspectives in two stories on mobile phone digital locks.

Search me please

Jack Balkin, professor of law at Yale, believes the Authors Guild lawsuit against Google is just plain silly.

"Every author wishes that more people read his or her books. Most of us would happily stand on street corners with sandwich boards if we thought it would help. Anything that brings our work in front of a larger public should be welcomed as a good thing, not something to be feared. The Authors Guild, and indeed all authors, should be working with search engines like Google to come up with new and creative ways to get people to know about and sample what we have often spent many months-- and sometimes many years-- working on. Authors spend their lives putting the best part of themselves into their books. The cruelest fate they can suffer is not criticism and rejection-- it is being forgotten. The digitally networked environment gives them a chance to avoid that fate. All authors who care about their work should embrace it."

As someone working on his first book, I wholeheartedly agree.

Teddy Roosevelt the original tree hugger?

Quote of the day:

Theodore Roosevelt once said "The nation behaves well if it treats the natural resources as assets, which it must turn over to the next generation increased, and not impaired in value."

Possibly the genesis of the Brundlandt Commission's definition of sustainable development?

"Sustainable development is development that meets the needs of the present without comprising the ability of future generations to meet their own needs"

Thanks to Jonathan Rowe, On the Commons, for the quote.

Authors' obscurity not infringement

Tim O'Reilly, writing in the New York Times, believes that most authors are at a much higher risk of becoming obcure than of having their copyrights infringed.

"AUTHORS struggle, mostly in vain, against their fated obscurity. According to Nielsen Bookscan, which tracks sales from major booksellers, only 2 percent of the 1.2 million unique titles sold in 2004 had sales of more than 5,000 copies. Against this backdrop, the recent Authors Guild suit against the Google Library Project is poignantly wrongheaded."

UK world leader in scrapping IT projects

Apparently Britain is a "world leader" in scrapping expensive public sector IT projects which fail.

Complex IT projects have a poor record everywhere in the world, in both the public and private sectors. An annual survey by Standish, a US consultancy, estimates that 70 per cent fail to meet their timetable or budget, or to come up to specification. Britain is thus not alone in finding computerising government difficult. The US has experienced a spate of problems at both state and federal level. In March, the FBI abandoned, after five years of work, a $170m attempt to create a "virtual case file" for tracking suspected terrorists. But the record cost-overrun in a civil IT project was probably the US internal revenue service's $30bn tax modernisation in the mid-1990s.

Such spectacular failings have encouraged the British government to suggest that it is no worse than other countries, though perhaps more transparent. This attitude is complacent. A study of seven countries to be published next year finds sharp variations in the proportion of government IT projects that are eventually scrapped. The study, led by Patrick Dunleavy of the LSE and Helen Margetts of Oxford, scores the performance of IT projects in Australia, Canada, Japan, the Netherlands, New Zealand, Britain and the US between 1990 and 2003. Britain emerges as a world leader in cancelling or producing non-functioning government IT systems. Japan and the Netherlands had fewest failures...

Assuming that British government projects are particularly prone to failure, why should this be so? Investigations and postmortems agree to a surprising extent on a number of common contributory factors which are peculiar to the British public sector. The most important are:
Scale. Big IT projects everywhere are far more likely to fail than small ones...
Lack of professional skills. This affects all large IT projects. According to the Royal Academy of Engineering: "The levels of professionalism observed in software engineering are generally lower than those in other branches of engineering." The academy points to a particular lack of expertise in project management, which is "not well understood."...
Procurement process. Public procurement law requires lengthy formal tendering processes that can take more than a year and sometimes several years. The industry and some senior officials are critical of processes that can lock public bodies into technology that is obsolete by the time the system goes live...
Multiple stakeholders. Complex IT projects often cut across many different agencies, making leadership difficult...
Vulnerability to policy swings and "mission creep." Several government IT programmes have run into trouble because of sudden new demands. A recent example was the introduction of tax credits—a new role for the inland revenue which was sprung on its IT contractor EDS with little notice...

Sony PSP drm cracked

The copy protection code on Sony's PlayStation Portable has been cracked, according to the Register.

Ed Felten's Pizzaright Principle

Ed Felten has come up with a novel way of testing the provinence of proposed expansions in intellectual property law. He calls it the Pizzaright Principle test.

"Pizzaright — the exclusive right to sell pizza — is a new kind of intellectual property right. Pizzaright law, if adopted, would make it illegal to make or serve a pizza without a license from the pizzaright owner.

Creating a pizzaright would be terrible policy, of course. We’re much better off letting the market decide who can make and sell pizza.

The Pizzaright Principle says that if you make an argument for expanding copyright or creating new kinds of intellectual property rights, and if your argument serves equally well as an argument for pizzaright, then your argument is defective. It proves too much. Whatever your argument is, it had better rest on some difference between pizzaright and the exclusive right you want to create."

He goes on to "apply the Pizzaright Principle to two well-known bogus arguments for intellectual property expansion", the extension of copyright term and the granting of extra IP rights to broadcasters (as proposed under the WIPO broadcasting and webcasting treaty). Wonderful. Read the whole post.

Wikibooks

There's a nice article at News.com about Jimmy Wales' Wikibooks project.

German court: eDonkey links violate copyright

According to Heise,

Regarding the lawsuit in which the Motion Picture Association of America sought a temporary injunction against the Swiss-hosted website The-Realworld.de (TRW) the opinion of the court has now been made public. Thus in its decision of July 15 2005 the District Court in Hamburg came to the following conclusion: The making available of "edited" links which allow the downloading of installments of TV series via the Internet file-exchange network eDonkey constitutes a violation of the German Copyright Act (UrhG).

FDA plan RFIDs in drugs

I learn from Alan Cox, through FIPR that Scott Gottlieb, MD,Deputy Commissioner for Medical and Scientific Affairs at the US Food and Drug Administration (FDA) agency, in a speech last week on "Ensuring the Safety of America's Drug Supply" spoke about the agency's plans to force the drugs industry to embed electronic tags in pill bottles or even individual pills. Extract from the speech:

"With these more sophisticated drug counterfeit operations, FDA and all law enforcement activities that are partnering with us need to be even more effective in meeting these new challenges.

One of our proposed remedies at FDA is to strengthen our system for tracking drugs from the assembly line and right to the patient's bedside, by replacing the paperwork that now certifies the integrity of a pill with an electronic track and trace system that cannot be easily forged or forgotten.

This can be technology as miniscule microchips or "taggants" that go inside pill bottles, or even inside the individual pills. There's been considerable progress made in developing and deploying these sorts of technological tools.

Right now, we have given manufacturers more time to deploy this kind of technology. We have also put a stay on a rule that would effectively require these kinds of measures, a paper pedigree rule, to give people more time to move from paper pedigrees which would not provide the same kinds of protections to electronic pedigrees, which would. New technology would allow for less costly compliance, and better controls. The rule is written broadly enough so that electronic track and trace could be used in place of paper pedigree. We plan to make a decision soon on this stay, which is in place until December 2006, and we could reach a decision before that."

Thanks also to Ian Brown for reminding me that the Enterprise Privacy Group has developed a Privacy Code of Conduct on RFID tags.

CSC Intervention to the WIPO General Assembly

James Love's statement to the WIPO General Assembly on behalf of the Civil Society Coalition (CSC) is well worth a read. Reprinted in full below.

"Thank you Ambassador. As this is the first time the Civil Society
Coalition is taking the floor, we congratulate you on your election
to the Chair.

The Civil Society Coalition (CSC) represents twenty-eight non-
governmental organizations from at least twelve countries, in the
North and South. Our members are concerned with a wide range of
issues that are relevant to WIPO, including access to medicines,
access to knowledge, and better mechanisms to support creativity
activity.

We are strongly supportive of the proposals by the Friends of
Development for the WIPO Development Agenda. We urge this
specialized UN body to take more seriously its role in supporting
development, and protecting the public interest. The measures
included in the WIPO Development Agenda include a proposal to create
a treaty on access to knowledge. We strongly support this, and call
upon WIPO to discuss the treaty on access on knowledge in the
standing committees on Copyright and Patents.

We also agree that WIPO should address the control of anticompetitive
practices, including problems of monopoly in software markets. WIPO
needs to discuss the implementation of Article 40 of the TRIPS
agreement, on the control of anticompetitive practices.

WIPO should also address the issues of access to medicine, and in
particular, to work with WHO and other relevant bodies to provide
assistance to LDC=92s in implementation of paragraph 7 of the Doha
Declaration on TRIPS and Public Health.

We are opposed to the convening of a diplomatic conference on a
proposed treaty for broadcasting, cablecasting and webcasting
organizations.

The process for consideration of this treaty are flawed. The views
of consumers have not been respected, and WIPO has yet to engage the
technology community on the radical and restrictive webcasting
proposal. There has been no economic analysis of the impact of the
treaties on consumers, or on copyright owners.

There is also a large issue of deceptive packaging. It is being sold
to the uninformed, including many delegates, as something that is
necessary to address piracy. But the treaty has little to do with
piracy, which is already illegal everywhere for copyrighted works,
but much to do with the intellectual property right it gives for
transmitting information. It is deceptive to talk about the treaty
protecting only a signal, but then provide for extensive commercial
rights, lasting 50 years, to make reproductions and redistribute the
works.

We are deeply troubled in the nature of the proposed property right.
It is not based upon creativity. It is not based upon invention. It
is a claim that the investment in transmitting information should
create a 50 year exclusive right to in content, far longer than the
term of protection for databases in Europe, and more than 10 times
the term of protection for test data for pharmaceutical clinical
trials in the United States. This right is on top of the copyright
in copyrighted work, and applies even to works in the public domain
under copyright laws.

We don't give book publishers a layer of rights on top of copyright.
We don't give the post office a layer of rights for delivering mail.
We don't give taxi cab drivers a right to control the use of
documents that are transported by passengers in their cars. Why do
we decide to give broadcasters a right of 50 years?

If this is extended to the web, it will harm access to knowledge.
The web is quite different from radio and TV. People who receive
information on the web also publish. The same works are often
accessible from many different web pages. This helps disseminate
information, and increases access to knowledge. Creating rights in
information simply for transmitting or making the information
available to the public is the wrong paradigm for access to
knowledge. It harms copyright owners. It harms consumers. It will
harm innovation.
The ongoing demands to extend rights obtained by one group to another
group are predictable. The broadcasters want the rights now given to
producers of phonograms. The webcasters now ask for rights the
broadcasters have or will have under the new treaty. The rationale
for protecting audio-visual productions is now being extended to all
text and data from ordinary web pages. Makers of databases also will
want a treaty, and will point to the protections the broadcasters and
webcasters will request.

Where does this end? We are now giving multiple rights on the same
works. A broadcasters right on top of a copyright, for example.

It ends with no public domain, curtailing the free movement of
information, higher prices for information, and less access to
knowledge. It ends with a less informed and less equal society.

The costs and risks of this proposal are very large. The benefits,
if any, are very small. WIPO should also reconsider the process of
setting priorities that puts such a poor proposal at such a high
priority, when WIPO has yet to respond to requests by consumers to
address the control of anticompetitive practices, consumer problems
from TPM and DRM measures, the need for minimum limitations and
exceptions for the blind, education and libraries, and the proposal
for a treaty on access to knowledge. WIPO must find a way to address
consumer interests, and to rebalance the management of intellectual
property rights in ways that better protect access to knowledge.
Thank you Mr. Chair."

IP induction for students at Goldsmiths

From Creative Commons blog:

"A lecture on Creative Commons will form part of the induction training programme for incoming graduate research students at Goldsmith's College, University of London, this week. Andrea Rota, who is a member of the Liquid Culture project at Goldsmith's College, will be giving the lecture on "A range of protections and freedoms for researchers, authors and artists" as part of the scheduled activities for new graduate research students in induction week."

NO2ID catch up with Home Office Roadshow

NO2ID campaigners caught up with the Home Office's charm offensive roadshow to promote ID cards at Bristol yesterday. And BBC cameras were on hand to catch Dave Gould, No2ID's Bristol coordinator asking minister Andy Burnham awkward questions.

Initially one of the minister's minders tried to prevent the BBC filming the questioning when the NO2ID folks turned up, having been previously happy for them to film the minister saying fingerprints and eye scans would help "the citizen secure their own personal identity."

As the reporter says, "just as the hardsell was in full swing," the campaigers showed up and spoiled the show. It's a shame it didn't get on the national news. I wonder how much spin doctoring was done to prevent that?

Crime? What crime?

The editor of Security Focus has had a revelation:

"I took off my technology-is-utopian hat for a moment and was rather shocked at what I saw.

The morals and ethics that govern our real world just do not exist online...

Sitting behind a computer, any shy or docile human being can become the world's nastiest bastard of a hacker without even the slightest tinge of regret.

Attack, compromise, transfer funds, and then walk away. You might have just stolen the life savings of someone you don't know (and will never meet), so who cares? Or you've stolen the identity of someone who will feel the effects almost daily and for at least ten years down the road. But how does that affect you?

Hackers couldn't be any further detached from the damage, devastation and emotional destruction they cause. Just close the lid to your laptop computer, and move on."

EU Parliament reject data retention proposal

The European Parliament has rejected a proposal on telecoms and Internet data retention put forward by the UK, France, Sweden and Ireland, which would have obliged telcos and ISPs to retain phone and email data for up to three years. An alternative proposal from the European commission for retention of data for up to a year remains on the table.

Massachusetts donates 50,000 copies of Office to hurricane relief

Massachusetts donates 50,000 copies of Office to hurricane relief

Where are the UK start-ups

Tom Coates at Plasticbag.org asks Where are all the UK start-ups? Good question and he has an answer:

"So what is it that stops us making great things, starting start-ups and building for money? I contend that in part it's shame. Certainly the business people of Britain seem to be - at a certain level - highly uncomfortable with the existence of technical people. They're not a resource to be exploited, or people to collaborate with. The nerdy people who make and create seem to be shuffled to the side, kept in the background, so as not to curdle the canapés at the business meet and greets that are the real motivators of British business. The businessman and the creative technologist seem to be forced into two camps so repulsed by one another (betrayed by dot.com?) that they just circle at a distance, each almost refusing to admit the other exists. So the business people look towards the stable money and wait for the innovations to come in from abroad, or leap clumsily onto bandwagons with the help of the visionless, while the technologists dogmatically avoid anything that looks like it might have been sullied with the hint of a business model."

50000 fined for failing to carry ID

According to the Telegraph, 50 000 people in Holland have been fined for failing to carry ID cards

Digital evidence report

Peter Sommer of the London School of Economics has just published a useful report, the "Directors and Corporate Advisers' Guide to Digital Investigations and Evidence."

The accompanying press release is here.

Felten on Secure Flight

Ed Felten has made some comments about his membership of an independent expert committee assessing the Transportation Security Administration's (TSA) Secure Flight program. The TSA released the committee's final report at the end of last week.

"The committee’s charter was to study the privacy implications of the Secure Flight program. The final report is critical of TSA’s management of Secure Flight...

The key section of the report is on pages 5-6. Here’s the beginning of that section:

The SFWG found that TSA has failed to answer certain key questions about Secure Flight: First and foremost, TSA has not articulated what the specific goals of Secure Flight are. Based on the limited test results presented to us, we cannot assess whether even the general goal of evaluating passengers for the risk they represent to aviation security is a realistic or feasible one or how TSA proposes to achieve it. We do not know how much or what kind of personal information the system will collect or how data from various sources will flow through the system.

The lack of clear goals for the program is a serious problem...

Speaking for myself, I joined the committee with an open mind. A system along the general lines of Secure Flight might make sense, and might properly balance security with privacy. I wanted to see whether Secure Flight could be justified. I wanted to hear someone make the case for Secure Flight. TSA had said that it was gathering evidence and doing analysis to do so.

In the end, TSA never did make a case for Secure Flight. I still have the same questions I had at the beginning. But now I have less confidence that TSA can successfully run a program like Secure Flight.
"

WIPO webcasting treaty - Boyle

James Boyle has another article in the FT today.

He criticises intellectual property policy making because:

1. It is never based on empirical evidence.
2. It is done through deals between large industries with the public interest neglected.
3. It regulates communications networks increasingly directly and not very well.

And continues:

"The World Intellectual Property Organisation has now managed to combine all three lamentable tendencies at once. The Broadcasting and Webcasting Treaty, currently being debated in Geneva, is an IP hat trick...

WIPO is in the grip of the belief that more rights are better...

Eventually, a new treaty will be produced. A new round of “harmonisation” will begin – upwards, always upwards. An unnecessary set of rights will have been created and created without evidence, perhaps reaching the heart of our new communications technology. And the lobbyists will return to their desks to plan again. Perhaps the growing furore about the webcast right will drive it off the agenda eventually. Yet the larger pattern of making decisions without evidence, as a contract among the affected industries, will continue. This is a scandal. But at WIPO, it is business as usual."

IRA arms decommissioned

John de Chastelain, the retired Canadian general who has supervising the decommissioning of IRA arms for the past eight years, is reported by the Guardian as saying:

"The decommissioning of the arms of the IRA is now an accomplished fact."

UK Firms may make ID cards compulsory

The government are apparently talking to 35 of the biggest companies in the UK with a view to getting them to make national ID cards compulsory for employees.

This kind of deal could cost the relevant firms potentially significant sums, so I doubt that they will get all 35 or even a majority of them to sign up, at least without appropriate concrete incentives.

"A Massachusetts Soliloquy"

One of Pamela Jones readers has been getting all poetic about the Massachusetts decision to switch to open source software:

To read, or not to read, that is the question,
Whether tis nobler of the IT departmente to suffer
The lost documents and man-houres of outragious proprietary formats,
Or to take Armes against a monopoleye of FUDsteres,
And by opposing, restrain them, to open to compete

No more, and by a standarde, to say we end
The conversiones, and the thousand read/write errors
That archiving is heire to; tis a consumation
Devoutly to be wisht to open to compete...

There's more and it's all well worth a read.

Reading Nation in the Romantic Period

I've been reading William St Clair's terrific The Reading Nation in the Romantic Period (borrowed from the university library because it retails at £90, though it is a book I would like to have on my own bookshelf). From his concluding chapter (pages 436, 437):

"As the example of popular print between 1600 and 1780 shows, large reading constituencies were sometimes held for long periods in an unsatisfactory equilibrium marked by the increasing obsolescence of the main printed texts to which they had access. This episode offers what is probably the most illuminating case that is likely to be found of the long-term consquences of an unregulated private commercial monopoly on the nature of texts, books, prices, access, reading and resultant mentalities. It is unlilkely, for example, that those who around 1600 were caught in the pre-scientific world of the English-language bible, the ballad, the chapbook, and the astrological almanac, actively rejected modernity for the next two hundred years, or preferred that the medical and birth control advice which they reveived in print should be out-of-date and ineffective."

The copyright industries are currently enduring a period of turbulence but concerns about laws and technologies (eg copyright directive and drm) driving us towards another period of stability characterised by monopolistic control could well be strengthed by further studies of this nature. And from the final page of the final chapter, St Clair gives his perspective on the modern debate:

"The argument that intellectual property is a privilege granted for a limtied period in order to reward and encourage innovation that is valuable to the society that grants it is as valid today as it was in Adam Smith's time. The conditions within which the privilege should be granted are therefore an issue of public policy, which ought to be decided , not in accordance with dogmas about the rights of property, but with eyes open to the public interest in the likely consequences. When, for the first time in history, copies of texts of all kinds can be reproduced and circulated instantaneously in limitless numbers at infinitesimal cost, it is perverse that much of the technological and business effort of the text copying industries is devoted to preventing copying and to keeping up the price of access."

Absolutely!

St Clair's chapter on Mary Shelley's Frankenstein and the degree to which the original moral of a story can get distorted through events beyond the author's control is fascinating.

First Israeli File Sharing lawsuits

Entertainment industry lawyers in Israel have succeeded in getting the courts to shut down four file sharing websites. They're quoted as saying:

"When we finish with the file-trading websites, we'll move on to the users" and

"There is a great deal of information we've gained regarding individual users which is currently not being taken advantage of. The process of filing a suit in the case of a single file-trader is far more simple. In the eyes of the law, these are infringing users. No one has the right to duplicate copyright protected files...

We know exactly who they are. The entire network is monitored and we have their IP addresses."

Plus on the problem of getting a warrant to identify the user of a particular IP address at a particular time:

"Warrants are not a problem to get."

Individual file sharing lawsuits coming to Israel soon.

TSA : no commercial data in Secure Flight

The Transportation Security Administration (TSA) have decided not to use commercial data in the Secure Flight airline passenger screening program.

Antitrust suit v Apple

According to a report reproduced at Findlaw, Apple "must face several federal and state antitrust claims arising from the operation of its iTunes online music store and the sale of its iPod digital music players, a federal judge in California has ruled."

Google v the Authors Guild: the issues

There is loads of blog and media commentary on the issues surrounding the lawsuit the Authors Guild and others have taken against Google. One of the best early roundups is at Andrew Raff's blog, IPTAblog.

Donna describes it as Google Print Library: Clash of the Titans.

NO2ID cartoon

Apparently the ID card protestors picked up by the police on their way to protest outside the EU Justice Ministers' meeting on the 8th of September, were held in custody until the following day. They'll find out in about six weeks whether any charges are to be brought against them.

Meanwhile the NO2ID campaign have been ridiculing the government's roadshow and "charm offensive" to sell the idea of the cards to the public:



and protesting at each of the venues on the roadshow. Shame on them. :-)

MP prepared to go to jail over ID cards

Liberal Democrat MP, Simon Hughes is reported as saying he would be prepared to go to jail over ID cards.

British Columbia assert NY jurisdiction

The Court of Appeal for Ontario's recent ruling declaring that an Ontario court had no jurisdiction over the Washington Post, a Supreme Court judge in British Columbia has, nevertheless ruled that a man can sue the New York Post for libel in Vancouver.

Open University top of the tree!

The Open University has been rated the best in the UK by the folks who know - the final year students.

Whereas that is extremely gratifying for those of us who work for that auspicious institution, we need to be careful about getting carried away with narrow measures of the performance of complex systems.

Brenda Gourley, the vice-chancellor of the Open University, said she was delighted with the outcome of the survey but :

"Listening to what students have to say is very important. But on the wider point you have got to be very careful not to find yourself trapped in some kind of crass consumerism culture.

I do worry about popularity parades and celebrity professors creeping into the higher education system in a way which doesn't value scholarly rigour."

Oxford, Cambridge and Warwick boycotted the survey but lest you think "Ah... they would have come out on top," just remember that the OU has out-performed all of those prestigious institutions in a range of subject areas (not least my own Technology Faculty, which received a maximum score of 24 out of 24 in recent years) in quality assessment audits carried out by the Higher Education Funding Council.

Caveats of simplistic measurements in mind, it is still nice to be able to bask in plaudits once in a while!

Latest EDRi-gram published

The latest EDRI-gram has been released, with a heavy focus on data protection. I wonder if they knew in advance of today's front page Guardian story? David Mery, a computing and telecoms professional, got caught up in the anti-terrorism efforts of the metropolitan police and outlines his experience of detention under the Terrorism Act.

The Met's police officers are under heavy pressure at the moment to be vigilant in their anti-terrorism efforts but this particular detention will have used valuable and scarce investigative resources without achieving anything.

And presumably Mr Mery, under the EU data retention proposals now becomes:

"- a person who is suspected of having committed or having taken part in a criminal offence or who has been convicted of such an offence, – a person who there are serious grounds for believing will commit a criminal offence, – a person who might be called on to testify in investigations in connection with criminal offences or subsequent criminal proceedings, – a person who has been the victim of a criminal offence or with regard to whom certain facts give reasons for believing that they could be the victims of a criminal offence, – a person who can provide information on criminal offences, and – a contact or associate to one of the persons mentioned above," (art.4.4)

Come to think of it we all fall into the

"– a person who might be called on to testify in investigations in connection with criminal offences or subsequent criminal proceedings, – a person who has been the victim of a criminal offence or with regard to whom certain facts give reasons for believing that they could be the victims of a criminal offence"

if we witness or are the victims of a crime...

There's no doubt that the police and security services need the best available technology and people trained to exploit it effectively in their fight against crime but the deployment of broad regulations, such as the data retention details proposed, with no feel for the reality of day to day policing or the people like Mr Mery who are unfortunate enough to get caught up in the metaphorical cross fire, helps neither the police nor the public.

Groucho

I've been getting multiple enquiries regarding when my Open University course, Law, the Internet and Society: technology and the future of ideas will be made available again. The answer, I'm afraid, remains the same that the University is currently reviewing its policy on the licensing of its teaching materials. This is taking some time to complete and the site will remain offline until it is done. I understand that is frustrating but greatly appreciate everyone's patience.

I am thinking about including one of my favorite stories from the course in a short conference talk on open content tomorrow, though.

Groucho Marx, when preparing to produce the Marx brothers film "A Night in Casablanca", got a letter from Warner Brothers' lawyers warning that the name 'Casablanca' belonged to Warner Brothers, since they had created the famous Bogart-Bergman film "Casablanca" five years previously. Groucho wrote back 'You claim you own Casablanca and that no one else can use that name without your permission. What about Warner Brothers - do you own that, too? You probably have the right to use the name Warner, but what about Brothers? Professionally, we were brothers long before you were.' The whole letter is well worth a read and can be found in The Groucho Letters by Groucho Marx published and re-printed by various companies (including Warner Books!) numerous times.

Update: Apologies to early readers - there were technical problems with a cartoon of Groucho I uploaded in the original entry, so I've removed it.

Google response to lawsuit

Google's reponse to the Authors Guild lawsuit is:

"Google Print and the Authors Guild

9/20/2005 09:04:00 PM
Posted by Susan Wojcicki, Vice President, Product Management

Today we learned that the Authors Guild filed a lawsuit to try to stop Google Print. We regret that this group chose to sue us over a program that will make millions of books more discoverable to the world -- especially since any copyright holder can exclude their books from the program. What’s more, many of Google Print’s chief beneficiaries will be authors whose backlist, out of print and lightly marketed new titles will be suggested to countless readers who wouldn’t have found them otherwise.

Let's be clear: Google doesn’t show even a single page to users who find copyrighted books through this program (unless the copyright holder gives us permission to show more). At most we show only a brief snippet of text where their search term appears, along with basic bibliographic information and several links to online booksellers and libraries. Here’s what an in-copyright book scanned from a library looks like on Google Print:



Google respects copyright. The use we make of all the books we scan through the Library Project is fully consistent with both the fair use doctrine under U.S. copyright law and the principles underlying copyright law itself, which allow everything from parodies to excerpts in book reviews. (Here's an article by one of the many legal scholars who have weighed in on Google Print.)

Just as Google helps you find sites you might not have found any other way by indexing the full text of web pages, Google Print, like an electronic card catalog, indexes book content to help users find, and perhaps buy, books. This ability to introduce millions of users to millions of titles can only expand the market for authors’ books, which is precisely what copyright law is intended to foster."

Google Print compromise?

One question we didn't ask about the Google Print project - wouldn't it be possible for Google to distribute some of the earnings they generate from the Google Print project amongst the authors (or other copyright holders)? They'll know from the traffic stats how often each book gets used, though there are potentially significant direct and administrative costs associated with such a scheme. And Google is a business - an externalizing machine in the same way that the shark is a killing machine...

That needs a lot more thought on the practicalities.

Google sued by authors

Mark Rogers and I recently asked a number of hypothetical questions about a possible copyright infringement case against Google. Yesterday, a group of authors plus the Authors Guild sued Google. Looks like we may be getting some real answers to those questions as this works its way through the US courts. The BBC and the NYT have early reports.

Anderson, Thomas and ID cards

I had reason to re-visit today the wonderful testimony, regarding ID cards, of Professors Ross Anderson and Martyn Thomas to the Select Committee on Home Affairs (June 2004).

It is hugely informative and at times very entertaining. At one point Prof Thomas, in answer to question 373, "do you see the public procurement difficulties as insuperable?" says:

"Yes, I do. I would like to tell you something that you will not believe but which I think it is important that you hear, and that is that almost every IT supplier in the world today is incompetent. I have worked in the IT industry almost all my working life for large and small organisations, and I know of what I speak. For example, the typical rate of delivered faults after full user acceptance testing from the maker suppliers in the industry over many years has been steady at around 20 faults per thousand lines of code. We know how to deliver software with a fault rate that is down around 0.1 faults per thousand lines of code and the industry does not adopt these techniques. We are as an industry very much in the early stages. The industry is only 50 years old. If you compare that with civil engineering, which is several thousand years old, we are tackling some of the most complex engineering designs and building some of the most complex engineering systems that the world has ever seen, essentially using craft technology. If you looked at the methods that are employed in most companies you would come to the conclusion that actually IT system development is a fashion business, not an engineering business, because they jump from one methodology to another year after year so long as it has a whizzy name, "Agile this" or "Intensive that". The underlying engineering disciplines that every mature engineering discipline has learnt it needs to use in order to be able to show that the system it is building has the required properties have not yet been employed in software and systems engineering, and that is at the heart of why these things do not work."

Spot on!

Webcasts, WIPO and the public domain

Donna is concerned about the latest machinations of the World Intellectual Property Organisation.

"Copyright may be the 800-pound gorilla of the Internet, but there’s a brand-new pseudo copyright in the works capable of swallowing massive chunks of the public domain, bones and all.

As I understand it, the new right — or rather, set of rights — would give companies fresh exclusive rights on top of any existing rights for anything they “webcast” (that is, transmit by web servers over the Internet and other networks). In other words, a company could take a movie that’s fallen into the public domain, webcast it, and keep the general public, to whom it belongs, from recording it...

If you’ve been following the goings-on at the World Intellectual Property Organization (WIPO), you won’t be surprised to learn that this new right is being negotiated behind closed doors at the urging of Yahoo and a handful of other companies, without any public debate and over the repeated protests of public interest groups and webcasters who have specifically rejected this new “protection.” As CPTech points out in a new letter to members of Congress, this is a prime example US trade policy completely captured by a small group of corporate lobbyists. After all, how else could a set of rights this powerful slip under the radar — especially when there has been, as CPTech notes,

1. No analysis of how US law would have to change in the treaty passed.
2. No analysis of the unintended consequences of creating a new right of transmission for the Internet.
3. No analysis of the impact of the new right on copyright owners.
4. No analysis or concern about how the new IPR right would affect the orphan works problem.
5. No analysis of the impact of the webcasting treaty on podcasting.
6. No analysis of whether the treaty language would unwittingly create a property right to persons operating peer-to-peer networks or search engines...

Two quick recommendations before I go: When the treaty was released in draft form last year, Ernie Miller wrote an exhaustive analysis/critique that helps explain why these additional rights are “bad, bad, bad” — check it out here. And don’t miss Cory’s post from last week, WIPO wants to give webcasters the right to steal from public domain, Creative Commons and GPL."

Tesco profiling

The Guardian is getting worked up about Tesco's consumer profiling again. Nothing new in the report but it's worth reading. Tesco is criticised for putting a great effort into circumventing the data protection act. Whereas that might not be in the best interests of their customers, Tesco is a business and as Robert Kennedy said on Saturday, businesses are amoral. They exist purely to make money for their shareholders. So we should bare this in mind when we do business with them.

Peter Barnes has a nice essay on the negative externalties (such as invasions of privacy, which he doesn't explicitly mention) generated by business.

The biggest defect of modern capitalism can be expressed in a single word: externalities (or illth if you prefer John Ruskin’s prose). Either term refers to the harmful side-effects that accompany current economic activity: pollution, congestion, noise, cancer, stress, extreme inequality, loss of biologic and cultural diversity, and so on.

One way to evaluate the performance of an economic system is to look at the ratio of well-being to illth it produces. This is akin to the way engineers measure the efficiency of an engine: for every unit of energy an engine consumes, it performs some useful work and wastes some heat. The higher the ratio of work to wasted heat, the greater the engine’s efficiency.

It includes a razor sharp (excuse the pun) quote from an investment manager called Robert Monks: "The corporation is an externalizing machine in the same way a shark is a killing machine. There isn't any question of malevolence or of will. The enterprise has within it, as the shark has within it, those characteristics that enable it to do that for which it is designed."

Or to put it another way if we put the fox in charge of the chickens, who exactly is responsible for the death of the chickens?

Robert Kennedy made a passionate speech on Saturday at the Sierra Summit about protecting the environment and his belief that the current Bush administration are failing on a whole range of measures. Extract (transcript at Truthout):

"I have three sons who have asthma. One out of every four black children in America’s cities now has asthma. We know that asthma attacks are triggered primary by bad air, by ozone and particulates and we know that the principle source of those materials in our atmosphere are 1,100 coal burning power plants that are burning coal illegally. It’s been illegal for 17 years. President Clinton’s administration was prosecuting the worst

75 of those plants but that’s an industry that donated $48 million to this president during the 2000 cycle and have given $58 million since.

One of the first things that Bush did when he came into office was to order the Justice Department and EPA to drop all those lawsuits. The top three enforcers at EPA, Sylvia Lowrance, Bruce Buckheit, Eric Schaeffer, all resigned their jobs in protest. These weren’t Democrats, these were people who had served through the Reagan and Bush administrations, the earlier Bush administration.

A top Justice Department official said that this had never happened in American history before where a presidential candidate accepts money, contributions from criminals under indictment or targeted for indictment and then orders those indictments and investigations dropped when he achieves office.

Immediately after dropping those lawsuits, the White House went and abolished the New Source Rule which was the heart and soul, the central provision of the Clean Air Act. That rule is the rule that required those plants to clean up 17 years ago and it’s the fundamental compromise that allowed the passage of the Clean Air Act.

If you go to EPA’s website today, you will see that that decision alone, that single decision, this is EPA’s website, kills 18,000 Americans every single year. Six times the number of people that were killed by the World Trade Center attack. This should be on the front page of every newspaper in this country every single day and yet you’re not reading about it in the American press.

A couple of months ago EPA announced that in 19 states it is now unsafe to eat any freshwater fish in the state for mercury contamination. We know where the mercury is coming from, those same coal burning power plants. In 48 states at least some of the fish are unsafe to eat. In fact, the only two states where all of the fish are still safe to eat are Alaska and Wyoming where republican controlled legislatures have refused to appropriate the money to test the fish. In all of the other states at least some, most or all of the fish are unsafe to eat.

We know a lot about mercury we didn’t know a few years ago. We know for example, that one out of every six, now one out of every three American women have so much mercury in her womb that her children are at risk for a grim inventory of diseases, autism, blindness, mental retardation, heart, liver, kidney disease.

I have so much mercury in my body, I had my levels tested recently and Waterkeeper will test your levels, you can send them a hair sample. Mine are about double what the EPA considers safe. I was told by Dr. David Carpenter who is the national authority on mercury contamination that a woman with my levels of mercury in her blood would have children with impairment. I said to him, "You mean she might have" and he said, "No, the science is very certain today. Her children would have some kind of permanent brain damage." He estimated an IQ loss in those kids of about five to seven points...

Today there are only 11,000 miners left in the state and almost none of them are unionized because the strip industry isn’t. Using these giant machines and 25 tons of dynamite that they explode in West Virginia every day, a Hiroshima bomb every week. They are blowing the tops off the mountains and then they take these giant machines and they scrape the rubble and debris into the adjacent river valley.

Well, it’s all illegal.

You cannot dump rock and debris and rubble into a waterway in the United States of America without a Clean Water Act permit. So Joe Lovitz sued them and he won in front of a great crusty old West Virginia judge, Judge Charles Hayden who recently died. Charles Hayden said the same thing I said, he said, "It’s all illegal, all of it" and he enjoined all mountain top mining.

Two days from when we got that decision, Peabody Coal and Massey Coal who had given millions of dollars to this White House met in the White House and the White House rewrote one word of the Clean Water Act. The definition of the word fill that changed 30 years of statutory interpretation to make it legal today as it is in every state in the United States to dump rock, debris, rubble, construction debris, garbage, any kind of solid waste into any water way in this country without a Clean Water Act permit. All you need is a rubber stamp permit from the Corps of Engineers that in many cases you can get through the mail. It has none of the safeguards that the Clean Water Act provides...

One of the things I’ve done over the past seven, eight years, since 1994, since this whole movement, the anti-environmental movement got a foothold, a beach head in Congress, is to constantly go around and confront this argument that an investment in our environment is a diminishment of our nation’s wealth. It doesn’t diminish our wealth, it’s an investment in infrastructure, the same as investing in telecommunications and road construction. It’s an investment we have to make if we’re going to insure the economic vitality of our generation and the next generation. I want to say this, there is no stronger advocate for free market capitalism than myself.

I believe that the free market is the most efficient and democratic way to distribute the goods of the land and that the best thing that could happen to the environment is if we had true free market capitalism in this country because the free market promotes efficiency and efficiency means the elimination of waste and pollution of course is waste. The free market also would encourage us to properly value our natural resources and it’s the under valuation of those resources that causes us to use them wastefully. But in a true free market economy you can’t make yourself rich without making your neighbors rich and without enriching your community.

But what polluters do is they make themselves rich by making everybody else poor. They raise standards of living for themselves by lowering quality of life for everybody else and they do that by evading the discipline of the free market.

You show me a polluter; I’ll show you a subsidiary. I’ll show you a fat cat using political clout to escape the discipline of the free market. And force the public to pay his production costs. That’s what all pollution is, it’s always a subsidy, it’s always a guy trying to cheat the free market.

Corporations are externalizing machines. They’re constantly figuring out ways to get somebody else to pay their costs of production, that’s their nature. One of the best ways to do that and the most common way for a polluter is through pollution...

A corporation does not want democracy. It does not want free markets, it wants profits and the best way for them to get profits is to use our campaign finance system which is just a system of legalized bribery to get their stakes, their hooks into a public official and then use that public official to dismantle the market place to give them a competitive advantage and then to privatize the common, to steal the commonwealth, to liquidate public assets for cash, to plunder, to steal from the rest of us. That’s why. From the beginning of our national history our most visionary political leaders.

And that doesn’t mean corporations are a bad thing. It just means they’re amoral and we have to recognize that and not let them into the political process.

Let them do their thing but they should not be participating in our political process because a corporation cannot do something genuinely philanthropic.

Its against the law in this country because their shareholders can sue them for wasting corporate resources. They cannot legally do anything that will not increase their profit margins and that’s the way the law works and we have to recognize that and understand that they are toxic for the political process and they have to be fenced off and kept out of the political process...

We’re not protecting the environment for the sake of the fishes and the birds.

We’re protecting it for our own sake because we recognize that nature enriches us. It enriches us economically, yes, the base of our economy. And we ignore that at our peril.

The economy is a wholly owned subsidiary of the environment but it also enriches us esthetically and recreationally and culturally and historically and spiritually. Human beings have other appetites besides money and if we don’t feed them we’re not going to grow up. We’re not going to become the kind of beings our creator intended us to become.

When we destroy nature we diminish ourselves. We impoverish our children."

eBay, Skype and free speech

From the Economist:

The acquisition by eBay of Skype is a helpful reminder to the world's trillion-dollar telecoms industry that all phone calls will eventually be free.

RIAA now go after P2P cos

The RIAA have sent cease and desist letters to seven p2p companies, emboldened by the US Supreme Court's ruling in the Grokster case in June...

and P2P traffic continues to flourish.

Banguora libel case overturned

The Court of Appeal for Ontario has overturned an Internet libel ruling in Bangoura v Washington Post, that had greatly concerned many of the world's prominent media companies. Saying the original judge had erred in the application of precedent, the appeal judge, Robert P. Armstrong J.A., concluded

"there is simply no real and substantial connection between this action and Ontario and that it is not appropriate for the courts of Ontario to assume jurisdiction."

The courts of Ontario have no jurisdiction over the Washington Post. Seems simple when you put it like that but when you get into the messy details of Internet libel cases things are rarely simple.

Latest Script-ed published

The latest edition of the excellent Script-ed open law journal has just been published. Of particular note to an Irishman abroad is Dr. Matthew Rimmer's article Bloomsday: Copyright Estates and Cultural Festivals in which he criticises the trustees of the James Joyce's Estate for arguing that "the James Joyce and Ulysses exhibition staged by the National Library of Ireland could breach copyright by displaying manuscripts and draft notebooks by James Joyce" and for taking other aggressive copyright actions, such as threatening to sue the Irish government over a festival to celebrate the centenary of Bloomsday (16 June 1904, the day on which Ulysses was set). Dr Rimmer concludes:

I will not serve that in which I no longer believe, whether it call itself my home, my fatherland, or my church: and I will try to express myself in some mode of life or art as freely as I can and as wholly as I can, using my defence the only arms I allow myself to use - silence, exile, and cunning.
James Joyce, A Portrait of the Artist as a Young Man

The controversy over "Rejoyce Dublin 2004" provides a cautionary tale about copyright law and cultural institutions. The Joyce Estate has brought an array of legal actions to control the publication and communication of the works of James Joyce. Such litigation has had a chilling effect upon literary scholarship, anthologies, music compositions, public performances, and cultural exhibitions. As Robert Spoo observes:

Extremely long copyrights have given artificial voice and weight to the personal predilections of one who, in the absence of such rights, would be an ordinary participant in the life of art and letters like most of the rest of us. These protracted monopolies create, or permit, peculiar and unaccustomed distortions of the public sphere; they encourage attempts to re-privatize that space, to reclaim it in the interests of family privacy or personal taste. They allow a mere right-holder to become a privileged and arbitrary custodian of culture. And all of this would be exactly as it should be were these monopolies confined to one generation or two. But to see this capricious veto power being exercised at a period so startlingly remote from the cultural and historical origins of the work in question is dispiriting.

The case of the Joyce Estate is not an isolated one. There have been a spate of similar incidents involving the custodians of the work of JD Salinger, Sylvia Plath, TS Eliot, Samuel Beckett, Bertolt Brecht, to name a few. The trend towards copyright term extension has invested copyright estates with a great deal of power. There will be increasing conflict with scholars, biographers, artists, and performers who wish to use such copyright work before the expiry of the life of the author plus seventy years.

There is a need to revise and design copyright law in order to protect the interests of libraries, archives, galleries, and cultural institutions. As Brendan Howlin observed in the Irish Parliament:

Libraries are an extraordinary community resource. There has been an extraordinary development in the State-wide library network in the past five to ten years. Libraries are not just repositories of books which people take out and return within a week or a fortnight. For many communities, libraries are now a historical, cultural and artistic hub. We need to acknowledge that in a way we have not done up to now and allow libraries to develop to their full potential.

There should be stronger mechanisms to guarantee access to copyright works - such as a wide range of exceptions for fair dealing, or better still an open-ended defence of fair use, extensive exemptions for libraries and cultural institutions, and a flexible compulsory licensing scheme. Such revisions would promote the original purpose of copyright law to promote the wider public interest in education, research, and learning.

The ad hoc reforms of the Irish Parliament do not go far enough. The extension of the copyright term should be wound back in Europe and elsewhere, because of its impoverishment of the public domain. There is no need for the relatives of authors to enjoy such extensive post-mortem rights. The work of James Joyce should be allowed to fall into the public domain. As Robert Spoo comments:

When Ulysses finally enters the public domain worldwide, we will witness, just as we did some years ago when copyrights in Dubliners and A Portrait of the Artist as a Young Man expired in the United States, an explosion of cheap reprints and new editions of Joyce’s Irish epic. We will also see uninhibited use of the work in streamed Internet performances, public readings, dramatic and cinematic adaptations, and multimedia digital presentations complete with period photographs, Dublin maps, sound clips of Irish songs, and hyperlinks to critical interpretations and manuscript sources. On that red-letter day for the public domain, Ulysses will finally take its place with The Odyssey as raw myth-making material for some future national epic. Indeed, it can be argued that a work does not really become a “classic” until it is unqualifiedly available for cultural exploitation. It would follow that overlong copyright protection is an inhibition on the full organic development of a classic.

The time has come for the work of James Joyce to be emancipated from the private possession of his estate, and become part of the intellectual commons, free to be interpreted, adapted, and performed by scholars and artists alike.

He's right that there is no need for relatives, in most cases, to have such extensive post mortem rights, though I don't hold out a lot of hope in the short to medium term that the term of copyright is going to get reigned in.

Swtichfoot say bypass the copy protection

Tim Foreman of the band Switchfoot (have to admit I've never heard of them)has posted instructions on the net on how to bypass the copy protection that the band's music label are building into their CDs. He introduces the instructions with regrets about the music labels' policy on drm.

Hello friends,
my heart is heavy with this whole copy-protection thing. Many PC users have posted problems that they have had importing the new songs (regular disc only, not the dual disc) into programs such as Itunes. Let me first say that as a musician AND as a music fan, I agree with the frustration that has been expressed. We were horrified when we first heard about the new copy-protection policy that is being implemented by most major labels, including Sony (ours), and immediately looked into all of our options for removing this from our new album. Unfortunately, this is the new policy for all new major releases from these record companies. It is heartbreaking to see our blood, sweat, and tears over the past 2 years blurred by the confusion and frustration surrounding this new technology. It is also unfortunate when bands such as ourselves, Foo Fighters, Coldplay, etc... (just a few of the new releases with copy protection) are the target of this criticism, when there is no possible way to avoid this new industry policy...

I feel like as a band and as listeners, we've all been through a lot together over the past ten years, and we refuse to allow corporate policy to taint the family we've developed together. We deeply regret that there exists the need for any of our listeners to spend more than 30 seconds importing our music, but we're asking as friends and partners in this journey together to spend the extra 10 minutes that it takes to import these songs, which we think you'll agree to be our finest collection of songs yet. As a band, we've always been known for having the best fans in the world and I know that will continue for years to come. A month from now, I hope to be singing these songs together at a show, and the extra time spent importing the music will perhaps be forgotten, or at least forgiven. Thank you for your understanding and the continued kindness that you have always shown for five dreamers from San Diego, we love you guys,

-tim foreman