The tyranny of the majority and the minority

John Stuart Mill wrote, in On Liberty:

"Like other tyrannies, the tyranny of the majority was at first, and is still vulgarly, held in dread, chiefly as operating through the acts of the public authorities. But reflecting persons perceived that when society is itself the tyrant — society collectively over the separate individuals who compose it — its means of tyrannizing are not restricted to the acts which it may do by the hands of its political functionaries. Society can and does execute its own mandates; and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practices a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself. Protection, therefore, against the tyranny of the magistrate is not enough; there needs protection also against the tyranny of the prevailing opinion and feeling, against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development and, if possible, prevent the formation of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own. There is a limit to the legitimate interference of collective opinion with individual independence; and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs as protection against political despotism...

The object of this Essay is to assert one very simple principle...That principle is, that the sole end for which mankind are warranted, individually or collectively in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil, in case he do otherwise."

It is brought to mind every time a politician has a knee-jerk reaction to the latest headline or opinion poll and launches into one of those "the British public demands..." bouts of empty rhetoric. But also when those in positions of power and trust, like Blair, Brown, Cheney and Bush, demonstrate an absolute contempt for the rule of law in their panicky war on terror.

"For three decades Vice President Dick Cheney conducted a secretive, behind-closed-doors campaign to give the president virtually unlimited wartime power. Finally, in the aftermath of 9/11, the Justice Department and the White House made a number of controversial legal decisions. Orchestrated by Cheney and his lawyer David Addington, the department interpreted executive power in an expansive and extraordinary way, granting President George W. Bush the power to detain, interrogate, torture, wiretap and spy -- without congressional approval or judicial review.

Now, as the White House appears ready to ignore subpoenas in the investigations over wiretapping and U.S. attorney firings, FRONTLINE examines the battle over the power of the presidency and Cheney's way of looking at the Constitution...

After Sept. 11, Cheney and Addington were determined to implement their vision -- in secret. The vice president and his counsel found an ally in John Yoo, a lawyer at the Justice Department's extraordinarily powerful Office of Legal Counsel (OLC). In concert with Addington, Yoo wrote memoranda authorizing the president to act with unparalleled authority."Through interviews with key administration figures, Cheney's Law documents the bruising bureaucratic battles between a group of conservative Justice Department lawyers and the Office of the Vice President over the legal foundation for the most closely guarded programs in the war on terror," says FRONTLINE producer Michael Kirk...

In his most extensive television interview since leaving the Justice Department, former Assistant Attorney General Jack L. Goldsmith describes his initial days at the OLC in the fall of 2003 as he learned about the government's most secret and controversial covert operations. Goldsmith was shocked by the administration's secret assertion of unlimited power...

As Goldsmith began to question his colleagues' claims that the administration could ignore domestic laws and international treaties, he began to clash with Cheney's office. According to Goldsmith, Addington warned him, "If you rule that way, the blood of the 100,000 people who die in the next attack will be on your hands."

Goldsmith's battles with Cheney culminated in a now-famous hospital-room confrontation at Attorney General John Ashcroft's bedside. Goldsmith watched as White House Counsel Alberto Gonzales and Chief of Staff Andy Card pleaded with Ashcroft to overrule the department's finding that a domestic surveillance program was illegal. Ashcroft rebuffed the White House, and as many as 30 department lawyers threatened to resign. The president relented.

But Goldsmith's victory was temporary, and Cheney's Law continues the story after the hospital-room standoff. At the Justice Department, White House Counsel Gonzales was named attorney general and tasked with reasserting White House control. On Capitol Hill, Cheney lobbied Congress for broad authorizations for the eavesdropping program and for approval of the administration's system for trying suspected terrorists by military tribunals."

More on the themes of the Frontline programme here and further links of interest here. Thanks to Marty Lederman, who was also interviewed for the programme, for the pointer. In addition Jack Balkan has this to say about the Bush administration's attempts to get retroactive immunity for telcos it asked to spy for them illegally:

"The Bush Administration has claimed that everything it has done in the past seven years is legal. On the pages of this blog in the past five years we have tried repeatedly to show that this is not true, and that in fact that the Bush Administration has repeatedly broken the laws and tried to cover things up. Congress must understand that is it not dealing with an Administration that tries to play fair when it comes to respect for the rule of law. That is not meant to impugn the many fine lawyers at the Justice Department who have tried to do their jobs honorably under increasingly difficult conditions. Rather, my point is that at the top ranks of this Administration is a cabal of people who think that rules are made to be broken, or at the very least bent into unrecognizable shapes. Unfortunately they have been enabled by a handful of very bright and ambitious young lawyers who have combined sycophancy to power with ideological zeal. If this were a Mafia movie, we would call these practices an ongoing criminal conspiracy. Given the systemic nature of the lawbreaking, a RICO action might be appropriate. But this is no episode of the Sopranos. These people run the government of the United States, and they really don’t care much what the law says."

US judge refuses extradition to Italy on torture grounds

Another US judge has unexpectedly weighed into the torture debate by refusing to extradite a convicted drug trafficker because he would be subject to a tough prison regime where he would be leaned on to testify against others. Judge Sitgraves is quoted by the LA Times as saying:

"This coercion... is not related to any lawfully imposed sanction or punishment, and thus constitutes torture."

The Italians were less than impressed and mentioned one or two US failures on human rights such as the use of the death penalty and torture in Abu Ghraib and Gunatanamo Bay.

Canadian Mint to make a mint from IP?

I find this funny.

"David Miller, the mayor of Toronto, wants Canada’s federal government to share some of its national sales tax with cities. But all that his campaign has generated so far is a 47,680 Canadian dollar ($48,972) invoice from the federal mint.

Apparently, the mint not only makes the money in Canada, it owns the intellectual property rights, as well.

Mr. Miller wants the equivalent of one cent from the 6 percent goods and services tax, (or G.S.T. as it is commonly known). To inaugurate the campaign, Toronto began handing out posters, bumper stickers and buttons, most of which bear the slogan, “One Cent of the G.S.T. NOW,” with a photo of a Canadian penny.

In Ottawa, the intellectual property office of the Royal Canadian Mint soon told city officials that they needed permission to use the penny’s image. The invoice followed shortly afterward...

The mint acknowledges that it has no trademark rights to the words “one cent.” (Though the musician Curtis Jackson has registered his stage name, 50 Cent, in Canada.) The design of the penny, however, is copyrighted."

A spokesman for the Mint said the invoice was based on what an advertising agency would have charged the city for the campaign (they didn't use an agency, just their own employees) and that “We have to protect our property from abuse”

Howard Knoff has some sensible commentary, as you would expect.

Unlocking the iPhone is legal

Tim Wu has also had fun unlocking his new iPhone.

"I approached a typically chipper Apple salesman, clad in black with spiked hair. "I'm purchasing an iPhone," I began, "but I'm a T-Mobile customer, and so I was just wondering, I read that you can unlock the phone—"

"No," he cut me off.

"But I had read that it's possible to unlock the phone and use it—"

"You heard wrong," he said, his voice rising. "That's impossible." The tone was harsh; a few people looked over.

In the absence of friendly advice from Apple's employees, I handed over $432.42, took the phone home... I followed the unlocking guide prepared by Macworld's Cyrus Farivar. He took me to modmyiphone.com, the best source for detailed instructions...

As I unlocked it, I was constantly aware of the risk of turning my brand-new phone into a gleaming paperweight...None of this is for the faint of heart, but it's also exhilarating. Especially when you hit the last screen:

*Completed.
Enjoy.

The good news is that my iPhone works flawlessly...

Did I do anything wrong? When you buy an iPhone, Apple might argue that you've made an implicit promise to become an AT&T customer. But I did no such thing. I told the employees at the Apple Store that I wanted to unlock it, and at no stage of the purchasing process did I explicitly agree to be an AT&T customer. There was no sneakiness; I just did something they didn't like.

Meanwhile, lest we forget, I did just throw down more than $400 for this little toy. I'm no property-rights freak, but that iPhone is now my personal property, and that ought to stand for something...

The worst thing that you can say about me is that I've messed with Apple's right to run its business exactly the way it wants. But to my mind, that's not a right you get in the free market or in our legal system."

Cheap HIV drugs are more important than patents

Lara Santoro at the LA Times argued last week that Cheap HIV drugs are more important than patents.

"In January, the Thai government gave its domestic drug manufacturers carte blanche to effectively copy the formula for Abbot Laboratories' AIDS drug, Kaletra, and reproduce it in Thailand at a fraction of the cost.

A storm of protest ensued. The U.S. placed Thailand on a "priority watch list" of badly behaved countries. The European Union followed suit with a sharply worded letter from Trade Commissioner Peter Mandelson lamenting Thailand's outrageous disregard for Abbot's intellectual property.

Yet, contrary to common perception, Thailand's move was, and remains, in perfect observance of international law...

Why, then, has the Thai government's attempt to acquire a lifesaving drug run into a wall of corporate indignation and government censure?

The standard answer is that pharmaceutical advances are based on the respect of intellectual property. Without the protective role of patents, the argument goes, drug makers would fail to recover their research-and-development costs and consequently shy away from pursuing new drugs.

The truth is that more than half of all antiretroviral drugs were researched entirely on U.S. government grants. Both lopinavir and ritonavir, the two antiretroviral agents in Kaletra, were researched with public money. "Heck, we paid for them," said James Love, director of the Washington-based Consumer Project on Technology.

The pharmaceutical industry lives in fear of a cheap-drug domino effect. Thailand's compulsory license could inspire the entire continent of Africa -- where 70% of the world's 40 million HIV/AIDS cases are found -- to issue licenses for a series of drugs.

Countries such as Kenya and Uganda, not to mention South Africa, have not only the manufacturing base needed to copy and reproduce drugs for a fraction of their cost, they also have the right. So what's stopping them? "There is a history of trade pressures," Love said. "Very few countries are willing to face such pressures."

Despite death on an unimaginable scale, talk of compulsory licensing remains anathema in most of Africa, so millions of lives are left in the hands of a well-meaning yet ineffectual group of international donors, whose solution to the problem has been to purchase and distribute generic AIDS drugs made in India and Brazil. It's a noble effort, but with pitiful results. Fifteen years after the invention of antiretrovirals, only one in four Africans has access to them."

Mapping OA to OS

I missed this earlier this year when Glyn Moody looked to the parallels between the open access and free and open source software universes. Peter Suber provides a handy mapping diagram. And I see Glyn Moody approves of his dervative work.

Tolerated lawbreaking

Tim Wu has been thinking about breaking laws.

"At the federal prosecutor's office in the Southern District of New York, the staff, over beer and pretzels, used to play a darkly humorous game. Junior and senior prosecutors would sit around, and someone would name a random celebrity—say, Mother Theresa or John Lennon.

It would then be up to the junior prosecutors to figure out a plausible crime for which to indict him or her. The crimes were not usually rape, murder, or other crimes you'd see on Law & Order but rather the incredibly broad yet obscure crimes that populate the U.S. Code like a kind of jurisprudential minefield: Crimes like "false statements" (a felony, up to five years), "obstructing the mails" (five years), or "false pretenses on the high seas" (also five years). The trick and the skill lay in finding the more obscure offenses that fit the character of the celebrity and carried the toughest sentences. The, result, however, was inevitable: "prison time."

As this story suggests, American law is underenforced—and we like it that way. Full enforcement of every last law on the books would put all of us in prison for crimes such as "injuring a mail bag." No enforcement of our laws, on the other hand, would mean anarchy. Somehow, officials must choose what laws really matter.

This series explores the black spots in American law: areas in which our laws are routinely and regularly broken and where the law enforcement response is … nothing. These are the areas where, for one reason or another, we've decided to tolerate lawbreaking and let a law—duly enacted and still on the books—lay fallow or near dead.

Why are there dead zones in U.S. law? The answer goes beyond the simple expense of enforcement but betrays a deeper, underlying logic. Tolerated lawbreaking is almost always a response to a political failure—the inability of our political institutions to adapt to social change or reach a rational compromise that reflects the interests of the nation and all concerned parties. That's why the American statutes are full of laws that no one wants to see fully enforced—or even enforced at all...

The importance of understanding why and when we will tolerate lawbreaking cannot be overstated. Lawyers and journalists spend most of their time watching the president, Congress, and the courts as they make law. But tolerance of lawbreaking constitutes one of the nation's other major—yet most poorly understood—ways of creating social and legal policy. Almost as much as the laws that we enact, the lawbreaking to which we shut our eyes reflects how tolerant U.S. society really is to individual or group difference. It forms a major part of our understanding of how the nation deals with what was once called "vice." While messy, strange, hypocritical, and in a sense dishonest, widespread tolerance of lawbreaking forms a critical part of the U.S. legal system as it functions.

The motto of the Web site Erowid Experience Vaults is "You Cannot Deny the Experiences of Others." Erowid is the Web's best known site for recording drug experiences. Thousands of contributors describe in vivid detail their experiences with this or that pharmaceutical, creating something like a Zagat Guide for the discriminating drug user...

But what's particularly interesting about the Experience Vaults is how many of the drugs reviewed there aren't actually classic "illegal drugs," like heroin or cocaine, but rather pharmaceuticals, like Clonazepam.

That's because over the last two decades, the pharmaceutical industry has developed a full set of substitutes for just about every illegal narcotic we have. Avoiding the highly charged politics of "illegal" drugs, the pharmaceutical industry, doctors, and citizens have thus quietly created the means for Americans to get at substitutes for almost all the drugs banned in the 20^th century. Through the magic of tolerated use, it's actually the other drug legalization movement, and it has been much more successful than the one you read about in the papers...

Over the last two decades, the FDA has become increasingly open to drugs designed for the treatment of depression, pain, and anxiety—drugs that are, by their nature, likely to mimic the banned Schedule I narcotics. Part of this is the product of a well-documented relaxation of FDA practice that began under Clinton and has increased under Bush. But another part is the widespread public acceptance of the idea that the effects drug users have always been seeking in their illicit drugs—calmness, lack of pain, and bliss—are now "treatments" as opposed to recreation. We have reached a point at which it's commonly understood that when people snort cocaine because they're depressed or want to function better at work, that's drug trafficking; but taking antidepressants for similar purposes is practicing medicine...

The birth of a new law is something the media, lawyers, and academics pay great attention to. But the decay and death of old laws can be just as important, even when they're unobserved...

In the 1960s, for example, the TV broadcast industry did everything it could to squash the new "community antenna" (cable TV) industry. In the 1970s, the TV and film industries despised the new Betamax VTR (the VCR) and tried their level best to kill the "Japanese invader." And in the early 2000s, the music industry systematically destroyed Napster, Grokster, and any other company that dared name itself similarly.

But in the late 2000s, media companies seem to be changing their tune. Mass, industry-threatening piracy is still never tolerated. But the tough-guy act typified by the music industry of the early 2000s, and recently in the case of the $222,000 fine imposed on Jammie Thomas, may be going out of fashion. Instead, media companies—particularly in television and film—are at least sometimes practicing a mellower concept called "tolerated use." They watch and see whether infringements are actually harmful or not before sending out their copyright pit bulls...

In a well-functioning political system, the copyright law might be reformed in a grand negotiation between all interested parties, with the long-term goal of separating out the harmful infringement from the harmless. But in 21^st-century America, that's not a result our political system is capable of reaching. And that's why, here as in the rest of the series, we leave it to tolerated lawbreaking to find some way out."

Google and Random House close to deal on book search

Random House are reportedly close to agreeing to get involved in Google's book search project, despite continuing to report the copyright lawsuit against Google by the American Association of Publishers.

Pfizer Joins Online Doctors' Forum

Via Findlaw:

"A year-old online forum where 30,000 doctors swap medical observations has lined up a partnership with Pfizer Inc. - an alliance that runs counter to the site's founding ideal to give doctors a place to communicate without the pharmaceutical industry listening in...

...it's expected any postings by Pfizer's medical staff must be clearly identified as coming from a Pfizer source logging onto the system securely from an office computer...

When the service began in September 2006, it was intended as an advertisement-free forum for communication among doctors about topics such as drug side effects - in effect, a sanctuary from the influence of pharmaceutical industry and its sales staffs...

Pfizer will tap into a social network of doctors that resembles the popular Web site MySpace, but with the focus on professional concerns rather than personal information.

Pfizer's hundreds of medical staff will be able to access Sermo, but it will be off-limits to the rest of the company's 90,000 employees, said Dr. Michael Berelowitz, a senior vice president who oversees Pfizer's physicians...

Berelowitz said Pfizer also has allied itself with Sermo because of the site's growing influence in medical circles.

Sermo says it's adding physician members at a rate of 1,000 to 2,000 a week. It reached an agreement in May with the American Medical Association, and in August with the Food and Drug Administration. The agency's Center for Devices and Radiological Health entered a six-month agreement to monitor doctors' Sermo exchanges and eventually gauge whether to rely long-term on Sermo's postings to supplement existing government systems to track product safety."

Jammie Thomas appeals $222k damages

Jammie Thomas who lost to the tune of $222,000 her file sharing case against the RIAA has decided to appeal the verdict. She's not challenging the decision to hold her responsible for copying without permission, just the size of the award made against her.

"Defendant, by and through her undersigned attorney, hereby moves the Court for an
order granting a new trial pursuant to Fed. R. Civ. P. 59, or in the alternative, for
remittitur. Defendant’s singular grounds for the relief sought is that the amount of the award is excessive and in violation of the Due Process Clause of the United States
Constitution...

Defendant requests that the Court grant a new trial on the issue of damages so that
the Court can determine the extent of plaintiffs’ actual damages or harm suffered by the uploading of the 24 subject recordings. This inquiry is necessary because the amount of any award above and beyond actual damages or harm suffered is purely punitive, and as such must be scrutinized by the Court to insure that it is not grossly excessive, thereby violating the Due Process Clause of the United States Constitution.

Alternatively, the Court is urged to order remittitur. Song recordings are typically
purchased over the internet for about one dollar. Assuming plaintiffs receive 70 cents per song,1 and pretending that defendant’s downloading went to someone other than plaintiffs’ agents, plaintiffs’ damages would be $16.80.2 Multiplied by the maximum Constitutional limits suggested in BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996) and in State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408, 123 S. Ct. 1513, 155 L. Ed. 2d 585 (2003), a proper remittitur would be in the amount of zero dollars to $151.20.

If the Court decides that the minimum amount of the remittitur is fixed at $750 per
song recording, defendant argues that the Court has the authority, if not the duty, to test the Constitutionality of the application of the minimum statutory amount in the instant matter, because that number is more than 1,000 times the actual damages or harm suffered by plaintiffs...

...the Court is beseeched to grant a new trial, or alternatively, remittitur for an amount that does not offend the Due Process Clause of the United States Constitution, which amount should be between zero dollars and $150 total, comparing actual damages to the penalty; or $750 total if the Court chooses to aggregate and deem all 24 song recordings a single infringing act and then applies the statutory minimum penalty notwithstanding the ratio of actual damages or harm suffered to the penalty amount."

Somehow I don't think the RIAA will go along with the notion that she is only responsible to the tune of $151.20 or $750 and sadly I can't see the appeal court overturning the statutory damages of upwards of $750 per item either. We can only hope proportionality through due process will prevail though it doesn't tend to be a prominent feature in modern IP cases.

SCOTUS reject Microsoft appeal on racketeering

The US Supreme Court has decided that Mcirosoft and electronics retailer Best Buy will have to face racketeering charges in court.

"The Supreme Court Monday rejected an appeal by Microsoft Corp. and a unit of electronics retailer Best Buy Co. Inc. to dismiss a lawsuit alleging violation of racketeering laws through fraudulently signing up customers for Microsoft's online service.

The companies asked the justices to overturn a May ruling by the San Francisco-based 9th U.S. Circuit Court of Appeals, which said the civil suit could proceed. The Supreme Court is letting that ruling stand, which means the class-action lawsuit involving thousands of consumers with complaints against the companies will be litigated in federal district court."

Acacia, FOSS and the Supreme Court in 1882

I've been thinking about the Acacia patent infringement suit against Red Hat and the companies previous pursuit of a range of entities from educational institutions to the porn and broadcasting industries. I realised that it reminded me of a quote James Gleick mentioned from a US Supreme Court case in the 19th century (in his "Patently Absurd" essay from 2000, which is still well worth reading), when noting that patent rights lead to higher prices:

"It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax upon the industry of the country... It embarrasses the honest pursuit of business."

The slightly fuller version is:

"The design of the patent laws is to reward those who make some substantial discovery or invention, which adds to our knowledge and makes a step in advance in the useful arts. Such inventors are worthy of all favor. It was never the object of patent laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures. Such an indiscriminate creation of exclusive privileges tends rather to obstruct than to stimulate invention. It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax on the industry of the country, without contributing anything to the real advancement of the arts. It embarrasses the honest pursuit of business with fears and apprehensions of unknown liability lawsuits and vexatious accounting for profits made in good faith."

(I just checked and sure enough Red Hat has most of the more comprehensive version of the quote on its IP in public policy page)

The case was Atlantic Works vs. Brady, 1017 U.S. 192, 200 (1882) - a dispute over a design of a dredge boat - and the quote from the opinion delivered by Justice Bradley. Interestingly enough, Justice Douglas refers to this quote in his concurring opinion in another patent case 68 years later, The Great Atlantic and Pacific Tea Co. vs. Supermarket Corp., 340 U.S. 147 (1950) - a dispute over a cashier's counter - and precedes it with this:

"It is not enough that an article is new and useful. The Constitution never sanctioned the patenting of gadgets. Patents serve a higher end - the advancement of science. An invention need not be as startling as an atomic bomb to be patentable.
But it has to be of such quality and distinction that masters of the scientific field in which it falls will recognize it as an advance." He then lists a whole series of patent disputes which he reckons should never have seen the light of day, my favorites being:

"Hendy v. Miners' Iron Works, 127 U.S. 370: Putting rollers on a machine to make it moveable."

And

"Shenfield v. Nashawannuck Mfg. Co., 137 U.S. 56: Using flat cord instead of round cord for the loop at the end of suspenders."

and

"Morgan Envelope Co. v. Albany Perforated Wrapping Paper Co., 152 U.S. 425: An oval rather than cylindrical toilet paper roll, to facilitate tearing off strips."

I suspect the Acacia litigation may be more damaging ultimately than the SCO case, as yet again we confirm Hegel's belief that 'what we learn from history is that we do not learn from history'. And I wonder what Justices Douglas and Bradley would have made of the patent litigation frenzy in modern times?

(Btw, the Amazon 1-click patent Gleick refers to is still live - in September this year a review panel at the US Patent and Trademark Office rejected the decision of a patent examiner that the patent failed the obviousness test. Slashdot, not surprisingly, has more on the story)

Gore derangement syndrome

From Paul Krugman at the NYT: Gore Derangement Syndrome

"On the day after Al Gore shared the Nobel Peace Prize, The Wall Street Journal’s editors couldn’t even bring themselves to mention Mr. Gore’s name. Instead, they devoted their editorial to a long list of people they thought deserved the prize more.

And at National Review Online, Iain Murray suggested that the prize should have been shared with “that well-known peace campaigner Osama bin Laden, who implicitly endorsed Gore’s stance.” You see, bin Laden once said something about climate change — therefore, anyone who talks about climate change is a friend of the terrorists...

The worst thing about Mr. Gore, from the conservative point of view, is that he keeps being right. In 1992, George H. W. Bush mocked him as the “ozone man,” but three years later the scientists who discovered the threat to the ozone layer won the Nobel Prize in Chemistry. In 2002 he warned that if we invaded Iraq, “the resulting chaos could easily pose a far greater danger to the United States than we presently face from Saddam.” And so it has proved...

Today, being a good Republican means believing that taxes should always be cut, never raised. It also means believing that we should bomb and bully foreigners, not negotiate with them.

So if science says that we have a big problem that can’t be solved with tax cuts or bombs — well, the science must be rejected, and the scientists must be slimed...

Which brings us to the biggest reason the right hates Mr. Gore: in his case the smear campaign has failed. He’s taken everything they could throw at him, and emerged more respected, and more credible, than ever. And it drives them crazy."

Lip-smacking copyright suit confronts Pepsi

From the Independent: Lip-smacking copyright suit confronts Pepsi

"Lawyers acting for the estate of one of Britain's most celebrated celebrity photographers, Bob Carlos Clarke, who died last year, have picked a fight with the multinational bigwigs at Pepsi. They've decided to take legal action against the soft drinks company, claiming that their latest advert, which shows a young woman licking her lips, has directly ripped off Clarke's work The Lick/ Mouth, and are seeking hefty remuneration."

You'll see to take a look at the print edition of the paper to see the two photos but a copyright suit in licking lips?

MIT student arrested for wearing circuit board at airport

A first year MIT student has triggered the latest airport security panic by walking into Boston airport wearing an electronic badge. Thanks to Bruce Schneier for the link.

Update: Henry Jenkins has some thoughtful commentary.

RIAA envy PRS?

Userfriendly cartoonist, J.D "Illiad Frazer, wonders if maybe the RIAA might be envious of the Performing Rights Society following their lawsuit against Kwik-Fit due to the company's mechanics playing their radios too loudly at work. Brilliant.

Red Hat, Novell sued for patent infringement

It looks like Steve Ballmer's call for Red Hat and other linux companies to embrace software patents was an early warning that they were about to be sued for patent infringement. Pamela Jones has the story at Groklaw:

" The first ever patent infringement litigation involving Linux. Here's the patent, for those who can look at it without risk. If in doubt, don't. Here's the complaint [PDF]...

The plaintiff is asking for an injunction, along with damages:

Plaintiffs IP Innovation and Technology Licensing Corp. claim to have the rights to U.S. Patent No. 5,072,412 for a User Interface with Multiple Workspaces for Sharing Display System Objects issued Dec. 10, 1991 along with two other similar patents.

Defendants Red Hat Inc. and Novell have allegedly committed acts of infringement through products including the Red Hat Linux system, the Novell Suse Linex Enterprise Desktop and the Novell Suse Linex Enterprise Server.

"Red Hat's and Novell's infringement, contributory infringement and inducement to infringe has injured plaintiffs and plaintiffs are entitled to recover damages adequate to compensate them for such infringement but in no event less than a reasonable royalty," the original complaint states.

The plaintiffs also allege that defendants received notice of the patents, therefore the infringing activities have been deliberate and willful.

Plaintiffs are seeking an injunction from the court, increased damages and other relief that the court or a jury may deem just and proper.

You might recall the patent was used in litigation against Apple in April 2007, and Beta News reported at the time that it's a 1991 Xerox PARC patent. But ars technica provided the detail that it references earlier patents going back to 1984. Appropriately enough. If you use Google to search for "IP Innovation LLC 5,072,412" you'll find more. Note that it's IP Innovation, not plural. There is another company using IP Innovations. I gather Apple paid them to go away in June.

This patent has been pointed to as an example of the need for patent reform. Now, Patent Troll Tracker claims that IP Innovation LLC is a subsidiary of Acacia. More here. Law.com did a story on Acacia in February, "Extreme Makeover: From Patent Troll to the Belle of the Ball.""

Pamela Jones reckons the lawsuit against Red Hat and co could be SCO version 2 but these Acacia guys, unlike SCO, have a history of success in IP litigation and should not be underestimated. Actually, though my educational technology colleagues became concerned for the first time about the IP monster in the form of the Blackboard patent last summer, they should really be more worried about Acacia, which has a history of patent suits against educational institutions, broadcasters, and the ubiquitous porn industry, for streaming video and audio materials via the web. Acacia is effectively a patent holding company which has not baulked at threatening the big guys like Microsoft (though with several ex Microsoft executives now working for them there may be more cordial relations in future), Apple, Intel, Texas Instruments and many others. They are unlikely to lose a lot of sleep either about bothering a[nother] bunch of academics or educational administrators.

Some Thomas jurors wanted $150k per song

Apparently one of the jurors in the p2p copyright infringement case against Jammie Thomas wanted to award damages of $150,000 per song ($3.6 million in total). The RIAA lawyers must be very proud of the impact of their courtroom performance.

Proportionality doesn't mean anything to these people.

SWIFT open Swiss Centre to avoid the reach of the US

From Heise Online:

"The supervisory board of SWIFT has approved the plans for the restructuring of the systems architecture of the financial messaging network the outlines of which had been known for some time. The core of the realignment is the creation of a global data processing center in Switzerland. To this will be added a command-and-control center in Hong Kong...

By engaging in the restructuring effort that is scheduled to be completed by the end of 2009 the financial messaging network based in Belgium is trying to accomplish a score of targets aimed at satisfying the desires of customers. Thus by preventing immediate access by US authorities to international transfer data -- as is currently the case via the network's computing center in the United States -- data privacy concerns are to be dispelled...

The financial messaging service intends to create two message processing zones: Europe and Transatlantic. The new global computing center would as a partner of the extant European data processing center, among other things, take on the mirror function of the current US facility, the organization declared. Transfer information belonging to the European zone would be processed and, if need be, stored there. The Swiss location would also process and store data emanating from the US center, it was said. "Messages within a zone will in future remain in their region of origin," SWIFT CEO Lázaro Campos said by way of explaining the new principle, which takes account to a greater degree of concerns voiced by data privacy watchdogs and members of the European Parliament and which will define the future modus operandi for the European Economic Area at least...

SWIFT processes international bank transfers with a volume of about 4.8 trillion euros every day. About 8,100 banks from 208 countries and regions are connected to the network. On its busiest day to date 13,663,975 bank transfer messages shot through SWIFT's data lines. Last year it emerged that US security authorities have access to SWIFT servers and are in a position to analyze the information that is being collected. Following the safe harbor assurances given by SWIFT the European Commission has given its blessing to the current financial-data access regime in the United States. In the US two customers of US banks have filed lawsuit alleging that bank transfer data of theirs was illegally passed on to security authorities by the network; the government for its part is trying to block these lawsuits."

Scottish entitlement card a deception

NO2ID Edinburgh coordinator, John Anthony Welford, has written a 12 page report accusing the Scottish Executive of covertly introducing a national identity card, the so-called Scottish National Entitlement Card (SNEC), in Scotland last year.

"Last year national identity cards were reintroduced into the United Kingdom for the first time in fifty four years. The subject of identity cards is always a controversial one for the British, and so it is surprising that their reintroduction was given almost no publicity and met with minimal opposition. The reason for this is quite simple - nobody was told about it. What happened is that the elderly and disabled citizens of Scotland were invited to apply for a new kind of travel card. But unbeknown to them, what they were subsequently issued with was not a travel card, but a multipurpose identity card. Moreover, this card and its associated centralised database are so intrusive that they would not today be permitted by law in Germany. The present paper outlines the nature of this ‘Trojan Horse’ identity cards project and the wholesale systematic deception which it involved."

You can't sue quicker than a Kwik-Fit suer

The blogosphere has been buzzing with the news that the Performing Rights Society are suing Kwik-Fit because the mechanics have been playing their radios loudly at work thereby stepping into public performance territory. The judge, Lord Emslie, had this to say in refusing to dismiss the case out of hand:

"[8] In my opinion there is some force in the defenders' contentions regarding lack of specification in the pursuers' averments. By way of illustration, I think that the precise conduct alleged against the defenders themselves could have been more clearly and specifically averred; more could have been said about the degree of audibility of music played at different premises at different times; the same applies to the extent to which copyright works were involved; and explicit averments might have been included as to the defenders having done or authorised infringing acts, or as to their having permitted the use of personal radios in the workplace in the knowledge, or with reason to believe, that copyright infringement was likely to occur. However, looking broadly at the pursuers' averments as a whole, I am not persuaded that they are irrelevant in the sense that, if they were all fully proved, the case would nevertheless be bound to fail. Equally, it does not seem to me that the defenders are currently denied fair notice of the case against them to such a degree that dismissal, or partial exclusion from probation, could be regarded as a realistic option.

[9] As characterised in the course of the debate, the pursuers' allegations are of a widespread and consistent picture emerging over many years whereby routine copyright infringement in the workplace was, or inferentially must have been, known to and "authorised" or "permitted" by the defenders' local and central management. If that picture were to be satisfactorily established after proof, it is in my view at least possible that liability for copyright infringement would be brought home against the defenders under either or both of sections 16 and 26(3) of the Act. At this stage, certainly, such an outcome cannot be ruled out, especially in circumstances where the true scope and application of the law regarding the "playing" or "performance" of copyright works "in public" have not been explored in argument. On relevancy grounds, therefore, the pursuers are in my view entitled to the inquiry which they seek. Having reached that conclusion, however, I am not to be taken as accepting that, on proof of the averments in question, the pursuers would necessarily succeed in their claims against the defenders. In the course of the debate various hypothetical situations were figured in which charges of copyright infringement might arguably go beyond the contemplated scope of the legislation and/or offend against common sense. Whether, in the event, any such difficulties materialise in this case will depend on how the evidence turns out at the proof."

IPKat is looking forward to the trial, "noting he decision of the Danish Supreme Court in Marius Pedersen A/S v KODA [2007] ECDR 15 that an employer was not carrying on a public broadcast of copyright-protected work even if it supplied its employees with radios and players at the workplace."

Harry Potter and the Durga Puja

I'm always on the lookout for IP stories touching children's literature, with Harry Potter disputes being a particular favourite. Well the latest one it appears is that J.K.Rowling is suing the organisers of a Durga puja Hindu religious festival for using a Harry Potter theme in the temporary structure they built to celebrate their goddess.

"Taking umbrage at the organisers using her characters without her permission, Rowling had sued the organizers on October 8, asking for Rs 20 lakh for copyright violation...

The Puja committee members are at their wits’ end. The organisers claimed they had no clue that they had to seek permission from the author and her publishers. “We will attend the court and are ready to apologise for this mistake,” said Roy Chowdhury.

But the organisers also plan to request them to scale down the compensation.

The setting at FD Park was almost complete, with the blue tipped Hogwarts castle and the flaming red Hogwarts Express all set to chug off from platform 9-3/4.

The designers had planned to place lifesize models of the bespectacled Potter and his companions inside the pandal."

IPKat wonders at the validity of the suit.

Whole life logging

John Lettice - one of the smarter journalists covering the ID mess - has been dissecting the latest ID card system developments over at the Register.

"The UK Identity & Passport Service (IPS) has staged an identity landgrab on birth, marriage and death records. From April 2008 the General Register Office, which is responsible for recording these matters and is currently a directorate of the Office of National Statistics, is to become part of IPS, meaning that IPS will be logging you from the moment you're born until the moment you die.

The logic of the move is chilling. The UK ID card scheme itself only requires registration for an ID card from age 16, while the passport part of the deal only, obviously, needs to have data on people who have passports. But... IPS has entirely and obviously unfeasible plans to make money by promoting itself to the status of the UK's de facto identity services broker, with passport validation and identity verification services being early manifestations of how it proposes to make money out of this. But if IPS is to be able to grow its offerings from simply checking if a passport is genuine into a general ID verification service, then it makes sense to have everybody in the database, whether they like it or not."

EDRI-Gram Number 5.19

EDRI-Gram Number 5.19 has been issued.
As usual full of interesting materials.

"EDRI Statement and Call for Action on new CoE Rec. failing to uphold FoE
WIPO General Assembly adopted the PCDA proposals
French ISPs agree to spy on Internet users to stop online piracy
The days of the Austrian DPA are numbered
Italian Minister of Justice wants to close sarcastic blog
UK fails to properly implement the EU data protection directive
German DP Commissioner against Google-Doubleclick deal
UK: Decrypt data or go to prison!
European Parliament resolution on a European digital library
ENDitorial: Montreal Privacy Week: Terra Incognita or Deja Vu?
Agenda"

US judge block Gunatanamo transfer due to risk of torture

According to the AP via Findlaw a US federal judge has issued an injunction blocking the transfer of a Gunatanamo Bay detainee to Tunisa because of the risk he might be tortured there.

"The order by U.S. District Judge Gladys Kessler was unprecedented as a direct intervention in the case of a prisoner at Guantanamo Bay, where some 330 men accused of links to al-Qaida or the Taliban are held, according to a human rights group and the detainee's lawyers.

"This is the first time since Congress tried to strip court jurisdiction over detainees that a court stepped in and said to the administration, 'Hey wait. You can't do what you say you want to do,'" said Jennifer Daskal, senior counterterrorism counsel for Human Rights Watch...

Cynthia Smith, a Department of Defense spokeswoman, said the United States tries to ensure that repatriated detainees are not abused.

"Detainees are not repatriated to countries where it is more likely than not that they will be tortured," she told AP in an e-mail. "We take steps to ensure that mistreatment of detainees doesn't happen and upon hearing allegations of mistreatment, we investigate before initiating future transfers to that state."

But Human Rights Watch said last month that Tunisian authorities broke a pledge not to mistreat two former Guantanamo detainees who were sent home nearly four months ago. The group cited lawyers for Abdullah bin Omar and Lotfi Lagha as saying the two men were held in solitary confinement and mistreated - despite assurances by the Tunisian government to the United States that the two would not be harmed."

It's good to see a federal judge applying the rule of law in the face of the Bush administration's sophistry and unconscionable stance on torture. Brian Tamanaha and David Lubin have some further thoughts on the US and torture over at Balkanization - essential reading for anyone considering the issue seriously . Yet again we are reminded that for evil to triumph it only requires that good people do nothing. Lubin says:

"Now we know about the existence of two hitherto-unknown Office of Legal Counsel memos on torture and cruel, inhuman and degrading treatment (CID for short) – what Jack has called Torture Memos 2.0 and 3.0. Reportedly, number 2.0 approves specific harsh techniques used by the CIA, while 3.0 finds that no technique used by the government is CID. (If it was, the Detainee Treatment Act would prohibit it.)

My subject here is Torture Memo 3.0, and my question is whether we should be surprised. The answer is no, because the Justice Department already told us that no interrogation tactic can possibly be cruel, inhuman, and degrading. In some sense, the only surprise is that Congress now acts surprised. Why the outrage now? DoJ told them its position more than two years ago, in a letter to three Democratic Senators...

...in an important sense, we have known for two years that, in the government’s view, nothing it does to obtain terrorist information counts as cruel, inhuman, or degrading. Even if Torture Memo 3.0 uses a different argument than Moschella’s, it can’t reach a more radical conclusion. So where is the surprise?

Perhaps it’s here: we might have thought that the OLC had cleaned up its act after the Bybee Memo embarrassment. Obviously it didn’t. Apparently, after Jack Goldsmith’s departure, it returned to its previous posture of blessing anything the Administration wants blessed, just the opposite of the candid and independent advice that ethical lawyers are supposed to deliver to their clients. That, as much as the government’s position on CID, is the real disgrace. The OLC issues opinions that are, by custom if not law, binding on the executive branch, so this is not simply legal advice – it’s the equivalent of a secret D.C. Court of Appeals decision.

So now the senators are shocked, shocked that gambling is going on in the establishment. Maybe it’s time to start looking at the establishment itself. Is there anything that can be done to restore respectability to the Office of Legal Counsel?"
Tamanaha:

"the Bush Administration is insisting publicly, loudly, indignantly, that the U.S. does not engage in “torture.” Were it only true.

What we have engaged in, as has been reported by many sources (see anti-torture memos at this site), is “alternative procedures,” which include water boarding, exposure to very cold temperature, and forced standing for hours on end. Robert Conquest, a venerable sovietologist and favorite historian of conservatives, who Bush awarded the Presidential Medal of Freedom, called these (USSR) tactics "torture," stating that "Torture is...a worse crime against humanity than killing.” If these sorts of actions were “torture” when the Soviet Union engaged in them, they are “torture” when we do them.

Deny, Deny, Deny. Hide behind a silly legalistic argument about the meaning of “torture.” But it doesn’t change what we did. [I optimistically use the past tense].

The victims of atrocities must not be erased."

Gates Foundation to support novel health research

Whatever you think of Bill Gates and Microsoft, he certainly puts a lot of effort into good causes through the Bill and Melinda Gates Foundation. Their latest initiative is an attempt to get out from under the constraints of the usual funding process for medical research, something university researchers across all the disciplines divides (not just in medicine and pharmaceuticals) will universally welcome.

"Creative, unorthodox thinking is essential to overcoming the most persistent challenges in global health. Two hundred years ago, the first vaccines were developed because revolutionary thinkers dared to try an entirely new approach to preventing disease. The power of innovation is also at work in countless other fields, from space travel to the Internet.

In spite of the important role that innovation plays in advancing scientific ideas, the global health research community has tended to play it safe, driven mostly by consensus, with funders avoiding high-risk proposals that test altogether novel concepts. This has resulted in incremental progress that, while valuable, is unlikely to deliver major leaps forward.

In response to the need to cultivate imaginative ideas in health research, the Bill & Melinda Gates Foundation announces a new grants initiative, Grand Challenges Explorations. The initiative aims to encourage scientists worldwide to explore innovative ideas that could lead to breakthroughs in some of the greatest health challenges facing poor countries. Grand Challenges Explorations will foster early stage innovation in global health research and will expand the pipeline of ideas that potentially could merit further evaluation.

Expanding the Grand Challenges in Global Health

Grand Challenges Explorations is an expansion of the foundation’s commitment to the Grand Challenges in Global Health initiative, which was launched in 2003 to accelerate the discovery of new technologies to improve global health. To date, the foundation has provided $450 million to support more than 40 projects on topics such as making childhood vaccines easier to use in poor countries and creating new ways to control insects that spread disease.

“The scientific community has shown tremendous interest in the Grand Challenges initiative, and the projects funded so far are beginning to show important progress,” said Dr. Harold Varmus, president and CEO of Memorial Sloan-Kettering Cancer Center and chair of the scientific board that oversees the Grand Challenges in Global Health initiative. “The new Explorations initiative will help to further increase innovation in global health research.”"

They are, in addition, planning to fast-track the research grant applications and approvals process. The test will be to see how it all works in practice but I wish them and the experts whose work they facilitate every success. Even the Wall Street Journal approves.

Ballmer, FOSS and software patents

According to Groklaw, Microsoft chief, Steve Ballmer, is keen for the free and open source software community to embrace software patents.

Lessig rescues Golan from the ashes of Eldred

I neglected to report that Larry Lessig won his first case earlier in the Autumn (5 September to be precise).

"The 10th Circuit decided our appeal in Golan v. Gonzales today. In a unanimous vote, the Court held that the "traditional contours of copyright protection" described in Eldred as the trigger for First Amendment review extend beyond the two "traditional First Amendment safeguards" mentioned by the Court in that case. It thus remanded the case to the District Court to evaluate section 514 of the Uruguay Round Agreements Act (“URAA”) under the First Amendment, which removed material from the public domain.

This is a very big victory. The government had argued in this case, and in related cases, that the only First Amendment review of a copyright act possible was if Congress changed either fair use or erased the idea/expression dichotomy. We, by contrast, have argued consistently that in addition to those two, Eldred requires First Amendment review when Congress changes the "traditional contours of copyright protection." In Golan, the issue is a statute that removes work from the public domain. In a related case now on cert to the Supreme Court, Kahle v. Gonzales, the issue is Congress's change from an opt-in system of copyright to an opt-out system of copyright. That too, we have argued, is a change in a "traditional contour of copyright protection." Under the 10th Circuit's rule, it should merit 1st Amendment review as well...

The opinion by Judge Henry is well worth the read. The argument was one the best I have seen. All three judges knew the case cold. It is a measure of how good courts can be that they took such care to review this case."

The decision is indeed worth reading and basically says the Eldred decision stands - tough - but there are serious questions relating to freedom of expression that need to be taken into consideration when works are removed from the public domain by changes to copyright laws.

"Plaintiffs in this case range from orchestra conductors, educators,
performers, and publishers to film archivists and motion picture distributors. They
challenge two acts of Congress, the Copyright Term Extension Act (“CTEA”),
Pub. L. No. 105-298, §§ 102(b) and (d), 112 Stat. 2827-28 (1998) (amending 17
U.S.C. §§ 302, 304), and § 514 of the Uruguay Round Agreements Act (“URAA”),
Pub. L. No. 103-465, 108 Stat. 4809, 4976-80 (1994), codified at 17 U.S.C. §§
104A, 109.

Also known as the Sonny Bono Copyright Term Extension Act, the CTEA
increased the duration of existing and future copyrights from life-plus-50-years to
life-plus-70-years. Section 514 of the URAA implements Article 18 of the Berne
Convention for the Protection of Literary and Artistic works. Ushered into being
in 1886 at the behest of Association Littéraire et Artistique Internationale, an
organization founded by Victor Hugo and dedicated to obtaining protection for
literary and artistic works, the Berne Convention requires member countries to
afford the same copyright protection to foreign authors as they provide their own
authors. In this case, congressional compliance with the Berne Convention meant copyrighting some foreign works in the public domain. 2

Plaintiffs argue the CTEA extends existing copyrights in violation of the
“limited Times” provision of the Constitution’s Copyright Clause. With regard to
the URAA, plaintiffs contend § 514 shrinks the public domain and thereby violates
the limitations on congressional power inherent in the Copyright Clause. In
addition, plaintiffs argue that § 514’s removal of works from the public domain
interferes with their First Amendment right to free expression.

The district court dismissed plaintiffs’ CTEA claim and granted summary
judgment for the government on plaintiffs’ URAA challenges. We exercise
jurisdiction pursuant to 28 U.S.C. § 1291 and affirm the district court’s dismissal
of the CTEA claim as foreclosed by the Supreme Court’s decision in Eldred v.
Ashcroft, 537 U.S. 186 (2003). We also agree with the district court that § 514 of
the URAA has not exceeded the limitations inherent in the Copyright Clause.
Nevertheless, we hold that plaintiffs have shown sufficient free expression
interests in works removed from the public domain to require First Amendment scrutiny of § 514. On this limited basis, we remand for proceedings consistent with this opinion."

Mr Golan, for those not familiar with the case, performs and teaches works
by foreign composers like Shostakovich and Stravinsky. He contended that the removal of some of these works from the public domain, due to changes in US copyright laws, led to higher costs to him for performance fees, royalties, sheet music rentals etc. The theory being that when these costs are too high they interfere with his first amendment rights to freedom of expression. The US courts tend to like to avoid the free speech v copyright conflict so it is something of a surprise that this decision accepts there is a problem.

Who will mourn the passing of copyright?

Ian, now that Radiohead have decided to release their latest album on the web for whatever price their fans are willing to pay, wonders who will mourn the passing of copyright. He's certainly generated a flurry of discussion on the ORG list, which sadly I haven't had the time to keep up with recently.

"I am more convinced by the views of Nobel-winning economists such as Milton Friedman and Ronald Coase who wrote in 2002:

"One might argue that the windfall to authors of existing copyrights has a positive consequence, by providing them with more resources for additional creative projects. However, this argument ignores the profit maximization decision of a producer, which takes into account the producer's cost of capital for a given investment. In general, a profit-maximizing producer should fund the set of projects that have an expected return equal to or greater than their cost of capital. If a producer lacks the cash on hand to fund a profitable project, the producer can secure additional funding from financial institutions or investors. If the producer has resources remaining, after funding all the projects whose expected returns are higher than the cost of capital, this remainder should be invested elsewhere, not in sub-par projects that happen to be available to the firm. If a producer pursues the same set of projects in any event, then its incentives will not be improved from the mere fact of a windfall from consumers."

[...] it's exhausting having to argue such basic economic points as the benefits of competition at a meeting of supposedly free-market political activists."

Self sustaining bureaucracy

William Heath likes Anthony Jay's new theory of bureaucracy.

"Once you have a large bureaucracy, say several hundred people who have little or no contact with customers patients, passengers, pupils, or parents or whatever, it becomes a staff welfare system.

All the impetus for the staff is to improve their welfare and reduce their worry. It becomes all about overseas trips, important lunches, important car parking spaces at the expense of customers, larger offices, more assistants, reduction of opportunities to be blamed, bonuses and special payments.

The main job of management has to be to counter this tendency. The motivation of management in the competitive world is that if they fail they lose their job and the company fails. But in government monopoly bureaucracy this spur is removed. The purpose for which the bureaucracy was founded ceases to become an objective. Instead, it beomes a constraint."

In commenting Patrick Dunleavy doesn't wish to be solipsistic (someone who believes they themselves are the only object of real knowledge) but reckons his own theory on bureau-shaping "covers much of the same ground, but better." Whilst Ian notes James Buchanan's nobel prize for public choice theory.

Jay is a little harsh in describing the process as a staff welfare system. What happens in large bureaucracies is that it becomes risky at a personal level to act in the interest of the customer or the organisation, in a way that is not prescribed by organisational procedures. Staff who get burnt once too often, for looking after customers by breaking procedures, eventually conform. It is more a risk aversion or safety seeking process than a staff welfare system. So people acting rationally in their own self interest do not always lead to the emergence of benefits for the system as a whole, contrary to popular belief.

Have patent will sue

Technology Innovation and Intellectual Property (James Bessen) reported recently that the probability that a patent is the subject of a lawsuit within four years of being granted increased hugely between 1984 and 2000.

"This trend implies an increasing “litigiousness” on the part of patent holders and it suggests that patent holders are incurring greater litigation costs per patent. But it also means that prospective innovators have to wend their way through a minefield with many more patents and many more of those patents are likely to “explode” into lawsuits."

I wonder what the curve looks like since 2000? Bessen also points to an interesting paper by F. M. Scherer on “The Political Economy of Patent Policy Reform in the United States,”

"Mike Scherer tells the story of the interplay between political interests, policy and economics research over the last two decades, including the Bayh-Dole Act, the Hatch-Waxman Act, the creation of the Court of Appeals for the Federal Circuit and the role of US in TRIPs negotiations."

It is a story that has been variously and brilliantly told by Peter Drahos, Pamela Samuelson and Jessica Litman but Scherer's paper is also worth a look. Abstract:

"This paper explores a paradox: the extensive tilt toward strengthened patent
laws in the United States and the world economy during the 1980s and 1990s, even
as economic research was revealing that patents played a relatively unimportant
incentive role in most large companies research and development investment
decisions. It proceeds by tracing the political and evidence-based history of several
major initiatives: the Bayh-Dole and Stevenson-Wydler Acts of 1980, the creation of
the Court of Appeals for the Federal Circuit in 1982, the Hatch-Waxman Act of 1984,
changes in antitrust presumptions, and the inclusion of TRIPS provisions in the new
international trade rules emerging in 1993 from the Uruguay Round. An excursion
follows into the relatively sudden ascent of the term “intellectual property” as a
form of propaganda. Suggestions for further policy reforms are offered."

Usmanov lawyers issue Indymedia with takedown notice

Indymedia UK has heard from Alisar Usmanov's lawyers on the thorny subject of online defamation.

"The notice served to Indymedia charged Indymedia with publishing allegedly libellous accusations about Usmanov, one of the richest men in Russia, recently linked to a possible hostile takeover of Arsenal FC.

The author of the posting, Craig Murray, is a former UK ambassador to Uzbekistan and claims to have inside knowledge of the businessman’s allegedly illegal dealings. Murray was sacked by the UK government for exposing the Uzbek government’s use of torture to attain ‘intelligence’ information, and for exposing and criticising UK-US support for a vicious dictator in pursuit of resources."

Fingerprints required to buy a car

Have you ever been asked for your fingerprints when buying a car?

"Imagine you’ve gone through a multiple week process to purchase an automobile.

You know the drill. Research every feature, pick your color, then, it’s negotiations for purchase price and for trade-in. Everything is done and agreed-apon, and excited, you are ready to hand over the check and collect your new car.

But wait!

You are handed a slip of paper and told to mark your right thumbprint in a box. The paper says clearly that it’s a request, for your protection, and to prevent your identity theft.

When you politely decline, the dealership refuses to sell you the car.

This is precisely what happened to me today when I tried to purchase a new X3 at the South Bay BMW dealer in Torrance, California...

Taken completely by surprise by all this, my husband and I asked many questions about this process. We were told that the data would remain on file at the dealership for seven years. That this policy is in place to protect us. That there are many bad, bad people in the world, who commit fraud, and that by recording everybody’s fingerprints, they would be deterred from committing fraud."

Jury orders $200k payout in P2P trial

The woman who decided to face the RIAA in court over accusations of copyright infringement via peer to peer networks has lost her case. She has been ordered by a jury to pay $222000 for infringing the copyright in 24 songs. For the mathematicians amongst you that's roughly $9250 per song.

"The recording industry hopes $222,000 will be enough to dissuade music lovers from downloading songs from the Internet without paying for them. That's the amount a federal jury ordered a Minnesota woman to pay for sharing copyrighted music online.

"This does send a message, I hope, that downloading and distributing our recordings is not OK," Richard Gabriel, the lead attorney for the music companies that sued the woman, said Thursday after the three-day civil trial in this city on the shore of Lake Superior."

On top of the damages she'll also be liable for the RIAA lawyers fees. The record companies are delighted and might even argue she got off lightly as potential statutory damages in the US range from $750 to $30000 per song,as far as I can recall. But there really ought to be a serious question of proportionality here. The jury clearly bought the entertainment industry rhetoric about sending a message but upwards of $0.5 million, one lawyers fees are included, for a couple of dozen songs? It's nuts.

Ed Felten has some thoughtful comments as ever.

"The industry had especially strong evidence that Thomas was the person who downloaded the songs in question. Thomas’s defense was that somebody else must have downloaded the songs. But the industry showed that the perpetrator used the same distinctive username that Thomas admitted to using on other services, and that the perpetrator downloaded songs by Thomas’s favorite performers. Based on press stories about the trial, the jury probably had an easy time concluding that Thomas downloaded the songs. (Remember that civil cases don’t require proof beyond a reasonable doubt, only that it was more likely than not that Thomas downloaded the songs illegally.)...

The most striking fact about the Thomas case is that the jury awarded damages of $9250 per song to faraway corporations.. That’s more than nine hundred times what the songs would have cost at retail, and the total of $222,000 is an astronomical amount to a person in Jammie Thomas’s circumstances. There is no way that Jammie Thomas caused $222,000 of harm to the record industry, so the jury’s purpose in awarding the damages has to be seen as punishment rather than compensation.

My guess is that the jury was turned off by Thomas’s implausible defense and her apparent refusal to take responsibility for her actions. Litigants disrespect the jury at their peril... Observers who hoped for jury nullification — that a jury would conclude that the law was unjust and would therefore refuse to find even an obvious violator liable — must be sorely disappointed. It sure looks like juries will find violators liable, and more significantly, that they can be convinced to sympathize with the industry against obvious violators."

Making Global Self-Regulation Effective in Developing Countries

Dana L. Brown and Ngaire Woods of Oxford University have just published a collection of essays on Making Global Self-Regulation Effective in Developing Countries

"As companies 'go global' they increasingly use factories and facilities spread across the world. But who regulates their activities in far flung corners of the world economy? In many sectors such as textiles and apparel, chemicals, and forestry, the answer is that companies regulate their own behaviour through codes and standards which they agree among themselves...

The chapters in this volume evaluate the effectiveness of self-regulation compared to other forms of global regulation. Across sectors and states, corporate self-regulation works best when those who are regulated have a voice in deciding the content of codes and standards and when some mechanism of compliance exists at the level of the state. Unfortunately, opportunities for voice and state capacity for regulation are often lacking in developing countries. Given this, the book suggests some minimal forms of government action and participation by global actors that can make global corporate self-regulation more effective in bettering conditions in the developing world."

It's an incredibly important area and hopefully the book will be picked up by influencial policymakers.

Don't use trademark in your criticism

If I'm reading this right ie. The Freecycle Network v Oey, someone got sued for trademark infringement for criticising someone trying to trademark the word "freecycle" and due to the fact that they used the word "freecycle" in their criticism. There was even a preliminary injunction preventing the critic from using the word freecycle but seems common sense eventually prevailed:

"Tim Oey (“Oey”) appeals a preliminary injunction preventing
him “from making any comments that could be construed
as to disparage upon [The Freecycle Network]’s possible
trademark and logo” and requiring that he “remove all postings
from the [I]nternet and any other public forums that he
has previously made that disparage [The Freecycle Network]’
s possible trademark and logo.”1 The Freecycle Network,
Inc. v. Oey, No. CV 06-173, Order at 5 (May 11, 2006)
(emphasis added). We have jurisdiction under 28 U.S.C.
§ 1291 and, for the following reasons, vacate the injunction
and remand."

Dark Data

Thomas Goetz at Wired on Freeing the Dark Data of Failed Scientific Experiments

"In 1981, the New England Journal of Medicine published a Harvard study that showed an unexpected link between drinking coffee and pancreatic cancer. As it happened, researchers were anticipating a connection between alcohol or tobacco and cancer. But according to the survey of several hundred patients, booze and cigarettes didn't seem to increase your risk. Then came a surprise: An incidental survey question suggested that coffee did increase the chances of pancreatic cancer. So that's what got published.

Those positive results, alas, were entirely anomalous; 20 years of follow-up research showed the coffee-cancer connection to be bunk. Nonetheless, it's a textbook example of so-called publication bias, where science gets skewed because only positive correlations see the light of day. After all, the surprising findings are what makes the news (and careers).

So what happens to all the research that doesn't yield a dramatic outcome — or, worse, the opposite of what researchers had hoped? It ends up stuffed in some lab drawer. The result is a vast body of squandered knowledge that represents a waste of resources and a drag on scientific progress. This information — call it dark data — must be set free...

Freeing up dark data could represent one of the biggest boons to research in decades, fueling advances in genetics, neuroscience, and biotech.

So why doesn't it happen? In part, it's a logistics problem: Advocating the release of dark data is one thing, but it's quite another to actually collect it, juggling different formats and standards. And, of course, there's the issue of storage. These days, an astronomical study of quasars or an ambitious bioinformatics project can generate several terabytes of data. Few have the capacity to store that, let alone analyze it...

Technology is actually the simple part. The tougher problem lies in the culture of science. More and more, research is funded by commercial entities, which deem any results proprietary. And even among fair-minded academics, the pressures of time, tender, and tenure can make openness an afterthought. If their research is successful, many academics guard their data like Gollum, wringing all the publication opportunities they can out of it over years. If the research doesn't pan out, there's a strong incentive to move on, ASAP, and a disincentive to linger in eddies that may not advance one's job prospects...

Getting science comfortable with exposing its dark data is really just the beginning. Once you start looking for it, dark data is everywhere: It's locked away in out-of-print books and orphaned art, the stuff that Creative Commons and Google Book Search have been bringing to light. Speaking of which: Hey, Google! Know all those research projects your employees do that the company will never green-light? How about letting the rest of the world take a crack at them?"

Murray v Usmanov Round 2?

Craig Murray whose website was taken offline after accusations of defamation and legal threats against his web hosting service, found a new online home which was due to get launched on Monday, 1 October. Then the server where the site was to relocate got firebombed on Sunday, 30 September. Bear in mind that the linked report is from the folk with the web server that was attacked and they are clearly unhappy at events, whatever the source of the attack.

So far Usmanov is declining to sue Murray directly for defamation. Usmanov's lawyers say Murray's accusations are "false, indefensible and grossly defamatory" but the billionaire doesn't want to give the former diplomat a public platform to repeat those accusations.

Dutch scrap evoting machines

Ian has an update from Anne-Marie Oostven on the decisions in the Nederlands to scrap electronic voting.

"Just a quick update on the Dutch e-voting situation. The last couple of days have been quite exciting in the Netherlands with regards to the use of voting computers. As you all might know, the foundation 'Wijvertrouwenstemcomputersniet' initiated a serious debate about the risks associated with the use of the voting machines by approximately 98% of the Dutch population. It wasn't until the foundation showed with a well-documented hack how easy it was to commit fraud that Mr. Atzo Nicolai, the Dutch Minister for Government Reform and Kingdom Relations, decided in December 2006 to set up two committees to investigate the electoral process...

The deputy Minister for Interior A. Bijleveld said in a first response that she would accept the committee's advice, and ban electronic voting. She announced that the 'Regulation for approval of voting machines 1997' will be withdrawn forthwith. Elections in the Netherlands will be held using paper ballots and red pencil for a while. After that, citizens will probably be using 'vote printers' and optical scan counting computers.

But this was not all! The icing on the cake came on yesterday 1 October 2007 when a Dutch judge declared that the use of the Nedap e-voting machines in recent Dutch elections has been unlawful. The District Court of Alkmaar decertified all Nedap voting computers currently in use in The Netherlands. The court order is a result of an administrative law procedure started by 'We do not trust voting computers' in March 2007.

More information: http://www.wijvertrouwenstemcomputersniet.nl/English"

P2P song swapping lawsuit begins

The Washington Post reports that one of the tens of thousands of folks targeted by the RIAA for swapping copyrighted songs via p2p networks is finally getting her day in court. Contrary to the report, this is not the first p2p song sharing case to see the inside of a courthouse (a woman was ordered to pay a little over $20k by a judge some time ago and the RIAA have backed of in a couple of cases I recall) but it will still be interesting to see how it goes.

US call for resignation of WIPO DG

Earlier this week, the US effectively called for the resignation of WIPO Director General, Kamil Idris. The US Ambassador to the UN, Warren W. Tichenor, outlined in great detail the allegations that have been made against Idris in the WIPO internal auditor's report, then called for him to answer the allegations publicly or resign.

"· The report that is the subject of this discussion, WIPO Internal Audit Report IAOD/INV/2006/2, has been available, in accordance with the WIPO Audit Charter, to all member states since it was issued in November 2006, 11 months ago.

· The report concludes that Director General made false statements on his original application for employment at WIPO and in official submissions thereafter and in so doing appears to violated both this organization's Staff Rules and Regulations and the principles I have just cited – those which govern the conduct of international civil servants.

· The report reveals that during the period 1982 to 2006, Director General used at least two different birth dates, one for employment purposes at WIPO and the other for personal purposes.

· The report also concludes that Director General knew since filing his original application for employment with WIPO in 1982 that the birth date reflected on this document was incorrect.

· The report states that notwithstanding Director General's admission that he was aware of the inconsistencies, and despite the numerous opportunities that presented themselves to rectify this error, he failed to rectify the discrepancies...

· To the Director General we say: clearly and convincingly answer the allegations against you in open forum in this General Assembly before Member States, or heed those calling for new leadership at WIPO."

Update: The Canadian Press has a brief report on the row.

RIPA Part III came into force on 1st October

The Regulation of Investigatory Powers Act has been out of the cyber rights limelight for a while but it is worth noting that part III of the act came into force at the beginning of the month. Richard Clayton explains much better than I can:

"The commencement order means that as of October 1st a section 49 notice can be served which requires that encrypted data be “put into an intelligible form” (what you and I might call “decrypted”). Extended forms of such a notice may, under the provisions of s51, require you to hand over your decryption key, and/or under s54 include a “no tipping off” provision.

If you fail to comply with a notice (or breach a tipping off requirement by telling someone about it) then you will have committed an offence, for which the maximum penalty is two years and a fine or both. It’s five years for “tipping off” and also five years (an amendment in s15 of the Terrorism Act 2006) if the case relates to “national security”.

By convention, laws in the UK very seldom have retrospective effect, so that if you do something today, Parliament is very loth to pass a law tomorrow to make your actions illegal. However, the offences in Part III relate to failing to obey a s49 notice and that notice could be served on you tomorrow (or thereafter), but the material may have been encrypted by you today (or before).

Potentially therefore, the police could start demanding the putting into an intelligible form, not only of information that they seize in a raid tomorrow morning, but also of material that they seized weeks, months or years ago...

There are some defences in the statute to failing to comply with a notice — one of which is that you can claim to have forgotten the decryption key (in practice, the passphrase under which the key is stored). In such a case the prosecution (the burden of proof was amended during the passage of the Bill) must show beyond a reasonable doubt that you have not forgotten it. Since they can’t mind-read, the expectation must be that they would attempt to show regular usage of the passphrase, and invite the jury to conclude that the forgetting has been faked — and this might be hard to manage if a hard disk has been in a police evidence store for over a decade."

See the original for links.

Nu Labour values

Couldn't resist this - John, in full flow, sums up Nu Labour values:

"much of what is most detestable about New Labour — its authoritarianism, contempt for civil liberties, adulation of ‘wealth creation’, micromanagerial obsessiveness over ‘targets’, PFI, etc. — are actually more Brown’s creations than Blair’s. The only difference is that Brown is now varnishing them with a new layer of patriotic tosh about “Britishness”, “British values”, etc. If the Tories weren’t so pathetic there might be some hope of unhorsing the pompous ass."

Microsoft, antitrust and innovation

Georg Greve is not convinced by Microsoft's and the US Justice Department's complaints about the EU Court of First Instance siding with the Commission in their antitrust actions against the company.

"If one were to believe Microsoft, antitrust law is for sore losers who are too lazy to innovate, and the decision of the European Court of Justice against Microsoft was to the detriment of consumers around the world...

This allegation does not hold up to examination though. Allow me to tell you why.

1st Fallacy: That the Ruling Punishes Innovation

The first fallacy was that this kind of ruling punished the innovator. Who were the innovators? Real Inc. innovated the streaming media market, and Novell was the innovator in the workgroup server market. In both cases Microsoft unfairly leveraged its desktop monopoly to drive the innovator out of the market. That is why future innovators in Silicon Valley often do not receive venture capital if they do not have defensive strategies against Microsoft or at least a co-existence strategy. Quite often that strategy is to become successful enough to become an attractive purchase for Microsoft. Not much of a reward for innovation."

One of the functions of antitrust law is to create an environment that is protective of the innovator. Microsoft has not been an innovator.

2nd Fallacy: That Google, Apple and All Successful Companies Need to Fear

The second claim, echoed widely by major media outfits, is that Google and Apple should now be worried about similar lawsuits because of their large market shares. But antitrust law is not about having large market shares. Antitrust law says nothing about offering a product and gaining monopolies. As long as there is no distortion of competition in neighboring markets, this is legitimate.

What antitrust law cares about in this context is leveraging monopolies of one market into another through abusive practices. The Commission found Microsoft employing two abusive practices: bundling and the deliberate obstruction of interoperability.