Publishers Sue Georgia State on Digital Reading Matter

I haven't caught up with the full details of this one yet: Publishers Sue Georgia State on Digital Reading Matter

" Three prominent academic publishers are suing Georgia State University, contending that the school is violating copyright laws by providing course reading material to students in digital format without seeking permission from the publishers or paying licensing fees.

In a complaint filed Tuesday in United States District Court in Atlanta, the publishers — Cambridge University Press, Oxford University Press and Sage Publications — sued four university officials, asserting “systematic, widespread and unauthorized copying and distribution of a vast amount of copyrighted works” by Georgia State, which the university distributes through its Web site."

But it looks as though Georgia State University takes a liberal rather than a risk averting view of fair use. The publishers are seeking an injunction but not damages and it will be really interesting to watch.

Jim Gibson's Risk Aversion and Rights Accretion in Intellectual Property Law is recommended background reading. Abstract:

"Intellectual property’s road to hell is paved with good intentions. Because liability is difficult to predict and the consequences of infringement are dire, risk-averse intellectual property users often seek a license when none is needed. Yet because the existence (vel non) of licensing markets plays a key role in determining the breadth of rights, these seemingly sensible licensing decisions eventually feed back into doctrine, as the licensing itself becomes proof that the entitlement covers the use. Over time, then, public privilege recedes and rights expand, moving intellectual property’s ubiquitous gray areas into what used to be virgin territory—where risk aversion again creates licensing markets, which causes further accretion of entitlements, which in turn pushes the gray areas even farther afield, and so on. This “doctrinal feedback” is not a result of changes in the positive law but is instead rooted in longstanding, widely accepted doctrine and prudent behavior on the part of everyone involved. And because feedback is so ingrained in established law and practice, its various cures tend to create more problems than they solve. In the end, however, subtle changes in doctrine’s use of licensing information provide a normatively neutral solution."

Also Why the Customer Isn’t Always Right: Producer-Based Limits on Rights Accretion in Trademark by Rebecca Tushnet and The ‘Why’ of Markets: Fair Use and Circularity by Wendy Gordon, also in the Yale Law Journal.

The reality of life for an artist in the long tail

There's been a lot of theory about creative artists not needing to derive revenues from copyright and doing it instead from t-shirt sales, concert tours and voluntary donations. Robert Rich has written to Kevin Kelly in response to the latter's 1000 true fans essay, to outline the realities of life for just one artist struggling in the long tail.

His story should be compulsory reading for copyright reformists, industry executives, digital rights activists and indeed anyone with an interest in creative culture. There are no simple answers to the upheaval the copyright landscape has been experiencing.

Rambus, Eircom developments

From SiliconValley.com:

"A month after a San Jose jury exonerated Los Altos-based Rambus from claims that it had engaged in anti-competitive practices, a federal appeals court today came to the same conclusion.

The U.S. Court of Appeals for the Washington D.C. Circuit overturned a Federal Trade Commission determination that Rambus - whose memory-chip technology is inside most personal computers - tried to monopolize the memory-chip market.

The FTC had found in 2006 that Rambus acted deceptively to obtain patents for its dynamic random access memory chips. But in its ruling today, the appeals court said "the commission failed to demonstrate that Rambus inflicted any harm on competition," and the court chided the agency for having "taken an aggressive interpretation of rather weak evidence.""

And via RTE:

"Eircom has rejected claims by four major record companies that it, as the largest broadband internet service provider in the State, must bear some liability for the illegal free downloading of music by computer users.

The companies have claimed Eircom's networks are being used 'on a grand scale' for illegal downloading.

Mr Justice Peter Kelly said today he expected to fix a July date for the hearing of the unique action brought by the record companies against Eircom. The action is the first here aimed at internet service providers, rather than individual illegal downloaders, and reflects growing concern within the music industry about the scale and cost of illegal downloading...

Mr Justice Kelly was told by Mr Paul Coughlan, for Eircom, there would be considerable technical evidence in the case relating to the claims that his side was failing to remove copyright infringing material from its systems. Eircom claims the companies have failed to identify such 'infringing material' and, if they have identified such material, then Eircom claims such material cannot be removed without damaging Eircom's systems/equipment or internet services...

Mr Willie Kavanagh, managing director of EMI Ireland and chairman of the Irish Recorded Music Association (IRMA), has said that, because of illegal downloading and other factors, the Irish music industry is experiencing 'a dramatic and accelerating decline' in income."

Thanks to Michael Geist for the pointers.

3 strikes striking out?

Michael Geist reckons the three strikes policy may well be on the way out after the Swedish government and European parliament's explicit rejection of the approach in recent weeks.

"In recent weeks, however, it would appear that governments are beginning to have sober second thoughts. After a Swedish judge recommended adopting the three strikes policy, that country's ministers of justice and culture wrote a public opinion piece setting out their forthcoming policy that explicitly excluded the three strikes model.

Earlier this month, the European Parliament delivered an even stronger rejection. At issue was the Bono Report on the Cultural Industries, a major cultural policy initiative headed by French member of parliament Guy Bono. While the Bono Report was expected to pave the way for a pan-European three strikes policy, the report may have had the opposite effect."

High Court rules UK SFO termination of BAe-Saudi investigation illegal

The Campaign Against the Arms Trade and The Corner House have won their legal case over the UK Serious Fraud Office's termination of its investigation of corruption involved in BAe's arms sales to Saudia Arabia. In a long, detailed and meticulous judgement Lord Justice Moses and Mr Justice Sullivan severely criticise the government's stance in the affair. Extract:

"

2. Between 30 July 2004 and 14 December 2006 a team of Serious Fraud Office lawyers, accountants, financial investigators and police officers carried out an investigation into allegations of bribery by BAE Systems plc (BAE) in relation to the Al-Yamamah military aircraft contracts with the Kingdom of Saudi Arabia. On 14 December 2006 the Director of the Serious Fraud Office announced that he was ending the SFO's investigation.
3. In October 2005 BAE sought to persuade the Attorney General and the SFO to stop the investigation on the grounds that its continued investigation would be contrary to the public interest: it would adversely affect relations between the United Kingdom and Saudi Arabia and prevent the United Kingdom securing what it described as the largest export contract in the last decade. Despite representations from Ministers, the Attorney General and the Director stood firm. The investigation continued throughout the first half of 2006.
4. In July 2006 the SFO was about to obtain access to Swiss bank accounts. The reaction of those described discreetly as "Saudi representatives" was to make a specific threat to the Prime Minister's Chief of Staff, Jonathan Powell: if the investigation was not stopped, there would be no contract for the export of Typhoon aircraft and the previous close intelligence and diplomatic relationship would cease.
5. Ministers advised the Attorney General and the Director that if the investigation continued those threats would be carried out; the consequences would be grave, both for the arms trade and for the safety of British citizens and service personnel. In the light of what he regarded as the grave risk to life, if the threat was carried out, the Director decided to stop the investigation.
6. The defendant in name, although in reality the Government, contends that the Director was entitled to surrender to the threat. The law is powerless to resist the specific and, as it turns out, successful attempt by a foreign government to pervert the course of justice in the United Kingdom, by causing the investigation to be halted. The court must, so it is argued, accept that whilst the threats and their consequences are "a matter of regret", they are a "part of life".
7. So bleak a picture of the impotence of the law invites at least dismay, if not outrage. The danger of so heated a reaction is that it generates steam; this obscures the search for legal principle. The challenge, triggered by this application, is to identify a legal principle which may be deployed in defence of so blatant a threat. However abject the surrender to that threat, if there is no identifiable legal principle by which the threat may be resisted, then the court must itself acquiesce in the capitulation...

57. But to describe the claimants' application as a challenge either to the relevance of national security to the decision of the Director, or to the Government's assessment of the risk to national security misses the essential point of this application. The essential point, as we see it, derives from the threat uttered, it is said, by Prince Bandar to the Prime Minister's Chief of Staff. The nature and implications of that explicit threat have a significant impact on this application. The challenge was originally resisted, in part, on the basis that the Director was entitled to discontinue the investigation as a result of the very grave threats to national and international security (see e.g. Detailed Grounds of Resistance § 10). But there is an ambiguity in the use of the word threat in that context. Threat as used in response to the claimants' original challenge meant no more than risk. The Director's decision was taken after assessment of the risk to security. But the grounds of resistance did not mention the fact that representatives of a foreign state had issued a specific threat as to the consequences which would flow from a refusal to halt the investigation. It is one thing to assess the risk of damage which might flow from continuing an investigation, quite another to submit to a threat designed to compel the investigator to call a halt. When the threat involves the criminal jurisdiction of this country, then the issue is no longer a matter only for Government, the courts are bound to consider what steps they must take to preserve the integrity of the criminal justice system.
58. The constitutional principle of the separation of powers requires the courts to resist encroachment on the territory for which they are responsible. In the instant application, the Government's response has failed to recognise that the threat uttered was not simply directed at this country's commercial, diplomatic and security interests; it was aimed at its legal system. In written argument, the Director suggested that we should attach significance to the fact that the threat was not directed against him. But it was. While he, personally, was not being threatened with any adverse consequences, the threat was effectively being made to him, in his capacity as Director, and in relation to his statutory functions. The Government acted merely as a conduit, passing the threat on to him with an assessment of the danger should it be carried out. That threat was made with the specific intention of interfering with the course of the investigation. The Saudis knew what was proposed: the SFO intended to inspect Swiss bank accounts. Those who uttered and adopted the threat intended to prevent the course which the SFO wished to pursue. It is unlikely that so blatant a threat would have been made had those responsible not believed that it might well succeed.
59. Had such a threat been made by one who was subject to the criminal law of this country, he would risk being charged with an attempt to pervert the course of justice. The course of justice includes the process of criminal investigation (R v Cotter [2002] 2 Cr App R. 29 at § 30 and 31). But whether or not a criminal offence might have been committed, the essential feature is that it was the administration of public justice which was traduced, it was the exercise of the Director's statutory powers which was halted.
60. Threats to the administration of public justice within the United Kingdom are the concern primarily of the courts, not the executive. It is the responsibility of the court to provide protection...

74. 
    
75. The legal relationships of the different branches of government, and the separation of powers depend on internal constitutional arrangements. They are of no concern to foreign states (see Lord Millett in R v Lyons [2003] 1 AC 976 at § 105).
76. Those decisions were not concerned with threats to the administration of justice within the United Kingdom. Such threats, as we have sought to demonstrate, are particularly within the scope of the courts' responsibility. It is difficult to identify any integrity in the role of the courts to uphold the rule of law, if the courts are to abdicate in response to a threat from a foreign power.
77. Mr Sales' submission appears to us not to be one of principle but rather one of practicality: resistance is useless, the judgement of the Government is that the Saudi Arabian government will not listen and the authorities in the United Kingdom must surrender. That argument reveals the extent to which the Government has failed to appreciate the role of the courts in upholding and protecting the rule of law.
78. The courts protect the rule of law by upholding the principle that when making decisions in the exercise of his statutory power an independent prosecutor is not entitled to surrender to the threat of a third party, even when that third party is a foreign state. The courts are entitled to exercise their own judgment as to how best they may protect the rule of law, even in cases where it is threatened from abroad. In the exercise of that judgment we are of the view that a resolute refusal to buckle to such a threat is the only way the law can resist...

80. Certainly, for the future, those who wish to deliver a threat designed to interfere with our internal, domestic system of law, need to be told that they cannot achieve their objective. Any attempt to force a decision on those responsible for the administration of justice will fail, just as any similar attempt by the executive within the United Kingdom would fail...

87. ... There is no evidence whatever that any consideration was given as to how to persuade the Saudis to withdraw the threat, let alone any attempt made to resist the threat. The Director did not himself consider this issue. His assessment of the threat and its consequences relied on the advice of others. There is nothing to suggest that those advising him on this issue had made any attempt to resist the threat. They merely transmitted the threat to the Director, and explained the consequences if it was carried out. When this question was raised, in argument, Mr Sales responded that that issue was not one which the defendant had come to court to meet. Moreover, he suggested the court should assume that due consideration had been given as to whether the Saudis might be persuaded to withdraw their threat and as to how its consequences might be avoided...

101. Secondly, as this case demonstrates, too ready a submission may give rise to the suspicion that the threat was not the real ground for the decision at all; rather it was a useful pretext. It is obvious, in the present case, that the decision to halt the investigation suited the objectives of the executive. Stopping the investigation avoided uncomfortable consequences, both commercial and diplomatic. Whilst we have accepted the evidence as to the grounds of this decision, in future cases, absent a principle of necessity, it would be all too tempting to use a threat as a ground for a convenient conclusion. We fear for the reputation of the administration of justice if it can be perverted by a threat. Let it be accepted, as the defendant's grounds assert, that this was an exceptional case; how does it look if on the one occasion in recent memory, a threat is made to the administration of justice, the law buckles? The Government Legal Service has every reason to be proud of its reputation for giving independent and, on occasion, unpalatable advice; but can that be maintained if in exceptional cases, when a threat comes from a powerful and strategically important ally, it must yield to pressure? Our courts and lawyers have the luxury and privilege of common law and statutory protection against power which threatens the rule of law. All the more important, then, that they provide support and encouragement to those in a less happy position. How do they do so, if they endorse surrender, when in Uganda the courts are forced to resist when those whom they have released on bail are re-arrested on the court-room steps by armed agents of the executive, or when the Chief Justices of Fiji and Pakistan are deposed by military rulers?
102. The Director failed to appreciate that protection of the rule of law demanded that he should not yield to the threat. Nor was adequate consideration given to the damage to national security and to the rule of law by submission to the threat. No-one took any steps to explain that the attempt to halt the investigation by making threats could not, by law, succeed. The Saudi threat would have been an exercise in futility, had anyone acknowledged that principle. We are driven to the conclusion that the Director's submission to the threat was unlawful."

The description of the facts of the case by Lord Justice Moses is the best I've seen anywhere. Meanwhile the government has not been idle. As part of the Constitutional Renewal Bill they have included some provisions related to this case, which some legal commentators suggest would make it impossible for this kind of judicial review to be pursued in the future. So success in the High Court may turn out to be a pyrrhic victory for the CAAT and the Corner House.

If you'd like a nice summary, look no further than Ruthie's Law.

University patent managers versus developing countries

From James Love via the Huffington Post blog: University patent managers versus developing countries

"Officials charged with managing patent portfolios in U.S. universities have found a new cause. In addition to opposing patent reform in the US Congress, they are opposing proposals being discussed in the World Health Organization that are aimed at increasing R&D for neglected diseases and other global health needs, and expanding access to new medicines in developing countries.

On April 16, the Association of University Technology Mangers (AUTM) asked its members to "Sign the Institute for Policy Innovation's Open Letter to the World Health Organization. . . in advance of the WHO's Intergovernmental Working Group (IGWG) on Public Health, Innovation and Intellectual Property...

The letter is part of a PR campaign by the pharmaceutical industry to stop the introduction of new models for supporting R&D for new medicines, or more transparency of the system...

One can understand why big pharma does not want a debate on new models for financing innovation -- if prizes work for Chagas disease or TB diagnostics, maybe the idea will spread to more lucrative markets. For lots of the wrong reasons, big pharma wants to avoid a system that links their rewards to actual impacts on health outcomes, and which enables generic competition of products.

But why would University Technology Managers side with big pharma in the WHO debates? Do they really think the current system is working well in developing countries?"

Innocent photographer or terrorist?

From the BBC: Innocent photographer or terrorist?

The hassling of people taking photographs in public places has crossed the pond.

"Misplaced fears about terror, privacy and child protection are preventing amateur photographers from enjoying their hobby, say campaigners.

Phil Smith thought ex-EastEnder Letitia Dean turning on the Christmas lights in Ipswich would make a good snap for his collection.

The 49-year-old started by firing off a few shots of the warm-up act on stage. But before the main attraction showed up, Mr Smith was challenged by a police officer who asked if he had a licence for the camera.

After explaining he didn't need one, he was taken down a side-street for a formal "stop and search", then asked to delete the photos and ordered not take any more. So he slunk home with his camera...

Austin Mitchell MP has tabled a motion in the Commons that has drawn on cross-party support from 150 other MPs, calling on the Home Office and the police to educate officers about photographers' rights."

JK Rowling testifies against HP Lexicon author

It seems I may have been wrong about JK Rowling not supporting Warner Brother's action against the Harry Potter Lexicon folks. According to the NYT last week Ms Rowling testified against RDR books, the company producing the printed version of the website.

"Dressed in a black dress and pinstriped suit, Ms. Rowling harshly criticized Mr. Vander Ark and his Lexicon manuscript, calling it a compilation of phrases and facts that were taken from her book and rewritten “without quotation marks around it,” and saying the manuscript was “sloppy” and “lazy.” Besides stepping on her plans to publish her own encyclopedia, she said, the Lexicon manuscript was also “derivative” and “riddled with errors.”

“What does it add?” she asked while on the stand. “The idea of my readership parting with their or their parents’ hard earned cash for this — I think it’s a travesty.

“My prime concern, if not my only concern,” she added later, “is these characters who have meant so much to me and continue to mean so much to me over a very long period of time. It’s very difficult for someone who is not a writer to understand.”

[...]

when RDR Books announced last fall that it had paid Mr. Vander Ark a small advance to create a print version of his site, Ms. Rowling and Warner Brothers objected. Ms. Rowling and her lawyers argued that RDR Books was crossing a line by seeking to profit from “The Harry Potter Lexicon,” which they say is little more than a repackaging of Ms. Rowling’s original material. And rather than writing an eighth installment of the Harry Potter series, Ms. Rowling has said, she planned on publishing a Harry Potter encyclopedia of her own and donating the proceeds to charity — an effort that would be severely impeded if Mr. Vander Ark published his Lexicon.

[...]

The publisher also argues that Lexicon follows a long tradition of literary commentary. “For hundreds of years, everybody has agreed that folks are free to write companion guides,” Anthony Falzone, executive director of the Fair Use Project at Stanford Law School and one of RDR’s lawyers, said in an interview. “This is the first time that anybody has argued seriously that folks don’t have the right to do that.”"

As always these cases tend to be more complicated than initial reports suggest but it is certainly one to watch closely.

Update: Christopher Caldwell, writing in the FT, has little sympathy for J.K. Rowling and more than a little for the H.P. Lexicon creator, Steven Vander Ark.

"Lawyers at Stanford University Law School's Fair Use Project, who are defending Mr Vander Ark pro bono, sought to show in three days of testimony this week that the Lexicon constitutes "fair use" of Ms Rowling's work. It is a reference guide, of the sort that is familiar (and indispensable) to anyone who has taken a deeper interest in Balzac, Proust, Faulkner or Star Trek . Ms Rowling "appears to claim a monopoly on the right to publish literary reference guides and other non-academic research relating to her own fiction", according to Mr Vander Ark's lawyer...

Whether the lexicon violates "fair use" depends, according to US legal experts, on whether it is "transformative" or whether it just cribs from Ms Rowling's plot and prose. Much of the testimony missed this issue. Ms Rowling dwelt on her own plans to publish a Potter encyclopaedia, which is neither here nor there. Literary critics cannot be kept from writing about, let us say, the novels of Philip Roth on the grounds that Mr Roth swears he wants to publish a book called What My Novels Mean ...

Whatever the court decides on legal grounds, one need only spend five minutes at Mr Vander Ark's website ( hp-lexicon.org ) to see that, on literary grounds, the idea that he is merely cribbing is nonsense. The website is highly transformative. It is a leviathan effort of research, criticism and interpretation. It is a concordance, index and bibliographical essay all in one. If the eventual book bears the slightest resemblance to it, it will be indispensable to scholars and lay Potter addicts. It gives timelines of the novels and points up inconsistencies in them. Its section on plants describes the uses and behaviour of fluxweed, honking daffodils and whomping willows, and reconstructs seven years of the "herbology" curriculum at Hogwarts. It indexes everything Ms Rowling has ever said in published interviews about her main characters... Such a site is not just a godsend to Potter addicts. It is thanks to readers such as Mr Vander Ark that Harry Potter is taken as something more than just a particularly good children's book."

He wrote 200,000 books

Knowing how much effort it takes to write just one book, I did a double take at this headline of an NYT article: He Wrote 200,000 Books

It seems that Professor Phillip Parker at Insead had computers do much of the heavy lifting. He

"has developed computer algorithms that collect publicly available information on a subject — broad or obscure — and, aided by his 60 to 70 computers and six or seven programmers, he turns the results into books in a range of genres, many of them in the range of 150 pages and printed only when a customer buys one."

Exterminate! Exterminate the copyright suit.

IPKat has a great summary of the recent Dalek copyright lawsuit in the UK High Court.

"In 2002, the BBC published The Dalek Survival Guide, which referred to text used in the earlier works. JHP, as the exclusive licensee of the right to publish the earlier works, sued the BBC for copyright infringement, seeking damages. The BBC maintained that it had acquired a licence by estoppel from Nation's estate to use the material featured in the earlier books in its new books.

Norris J dismissed JHP's action. In his view, on the true construction of the agreements, JHP was the exclusive licensee of the right to publish material found in the earlier books. The BBC however acted in the belief that it had the permission of the estate to use material derived from the earlier works in which the estate held the copyright, acting on that belief in paying writers to prepare text in publishing and marketing the new book in which the text in issue had been referenced. The BBC therefore had a complete defence to the claim, even if it had infringed the rights of the exclusive licensee."

Why Bloodspell could not be released on DVD

The creators of Bloodspell have given an interesting explanation of why they have not been able to release their film on DVD. The short story is that they believe it is an emergent property of a badly constructed copyright system that encourages cya decision making on the part of lawyers and companies involved.

House Staffers Livid Over Web Site

Here's an interesting privacy conundrum from the Washington Post:

"Working from a cramped loft apartment a mile from the Capitol, a small Internet company has sparked a privacy rights battle with hundreds of angry top House staffers upset that the Web site has begun posting details about their personal finances.

In an unusual conflict over constitutional rights, the aides argue that the recent disclosures leave them highly vulnerable to identity theft. But the Web site, LegiStorm, contends that it has a First Amendment right to publish already public information about some of the Capitol's most powerful players -- the high-level staffers -- and is creating a new check against potential corruption."

Apparently the site includes names, job titles and salaries, which would probably seem ok but it also has home addresses, bank account and other personal financial details of the staffer and in some cases members of their family. The latter information is pushing the envelope at the very least. So is this a function of the financial disclosure information forms that Congress requires staff to fill in or a function of the fact that these details are now available on the Web? The website owner has apparently removed very specific bank account and social security number details in 20 cases where he felt the material was too private. He has also apologised to the individuals concerned.

Just one more example of how the Web completely changes the scale of what it is possible to do with personal information on an electronic database connected to the network.

UK child database is 'not fit for purpose'

From the Register:

"The government is pressing ahead with its "Integrated Children's System" despite a review of four pilot projects which call into doubt the database's design and its benefits - if any - for care workers.

The ICS review was carried out by two academics from the University of York and nine researchers. They examined progress in two local authorities in England and two in Wales.

The review of the database - which will include entries on any child with serious illness, disability or contact with social services - only came to light as the result of a Freedom of Information request by Action on Rights for Children...

A DCSF spokesperson said: “ICS will help to ensure improved outcomes for children. That is why we are committed to seeing it implemented in all local authorities as soon as possible. Constructive feedback from local authorities and others – as captured by recent published research into ICS - is helping us to do that.”

Terri Dowty, director at Action on Rights for Children which made the Freedom of Information request, said: "ICS has got to work well. It will contain details of the needs of children with chronic illnesses and disabilities and, crucially, the care plans for those at risk of harm. If experienced social workers are saying that there are problems, these must be addressed before the system goes live. It is simply not good enough to ignore their concerns.""

New Zealanders get their own DMCA

From Stuff.co.nz:

"The Copyright (New Technologies) Amendment Bill changes the Copyright Act 1994 to clarify its application in the digital environment and to take account of international developments...

It introduces an offence, carrying a sentence of a maximum fine of $150,000 or up to five years imprisonment, or both, for commercial dealings in devices, services or information designed to circumvent technological protection measures."

So New Zealand has finally got its own version of the DMCA and EU copyright and related rights directive.

Microsoft, OOXML and ISO

Glyn Moody has an excellent article in Linux Journal on the process Microsoft went through to get OOXML approved as an international standard at ISO.

"I have been covering Microsoft for over 25 years - I've even written a few books about Windows. During that time, I've developed a certain respect for a company that just doesn't give up, and whose ability to spin surpasses even that of politicians. To be sure, Microsoft has crossed the line several times, but it has always worked within the system, however much it has attempted to use it for its own ends. No more: in the course of trying to force OOXML through the ISO fast-track process, it has finally gone further and attacked the system itself; in the process it has destroyed the credibility of the ISO, with serious knock-on consequences for the whole concept of open standards...

Leaving aside the intriguing idea that approving two, rival document standards may fall foul of the World Trade Organisation, there is also the interesting prospect of the EU getting interested. Some in Denmark have have already already complained to the EU about OOXML, and a posting from Poland claims that "the European Commission is currently investingating the Polish OOXML standarization process." And this is on top of an earlier statement from the European Commission that it would be examining "whether Microsoft's new file format Office Open XML, as implemented in Office, is sufficiently interoperable with competitors' products." Microsoft may have won the ISO battle, but it could well end up losing the rather more important war with the European Commission, which has already shown itself deeply unimpressed with Microsoft's approach to business."

Read it in full, for a great picture of the kind of behind the scenes work that large organisations engage in to bend the markets, often less-than-subtly, in their own favour.

90 MEPs block record industry's 3-strikes plan

From Cory Doctorow:

" Danny sez, "Last year, Euro Boing Boing readers wrote and called their MEPs to complain about European Union proposals advocating Internet filtering and blocking on behalf of the music industry. Not only were the amendments voted down, but now ninety MEPs from across the political spectrum have tabled a new text which condemns IFPI's plans to exile from the Net anyone they accuse three times of file-sharing:"

Calls on the Commission and the Member States to recognise that the Internet is a vast platform for cultural expression, access to knowledge, and democratic participation in European creativity, bringing generations together through the information society; calls on the Commission and the Member States, therefore, to avoid adopting measures conflicting with civil liberties and human rights and with the principles of proportionality, effectiveness and dissuasiveness, such as the interruption of Internet access.

(Translations into other EU languages here.)

"Among the advocates of the new language is Michel Rochard, the former Prime Minister of France. That's significant because present French PM Sarkozy is the only Euro leader currently seriously considering implementing IFPI's three strikes plan. With this kind of opposition, it looks like France might remain an anomaly, if it doesn't abandon the plans entirely.""

Update: Further commentary is available from the usual sources. The parliament's amendment encapsulates Lilian Edwards' objections to the 3 strike approach on proportionality and civil rights grounds.

Copyright suit over lecture notes

From Wired:

" University of Florida professor Michael Moulton thinks copyright law protects the lectures he gives to his students, and he's headed to court to prove it.

Moulton and his e-textbook publisher are suing Thomas Bean, who runs a company that repackages and sells student notes, arguing that the business is illegal since notes taken during college lectures violate the professor's copyright."

The plantiffs' lawyer says that students talking notes in class are protected by fair use but it is the packaging and selling for commercial gain that they are objecting to, since it puts a dent in the professor's and his publisher's income.

FIPR continue to be concerned about Phorm

FIPR has released a statement expressing continuing concerns about Phorm.

"

Nicholas Bohm, General Counsel for the Foundation for Information Policy Research, said:

"We are one of those organisations expressing deep concern. So far the Information Commissioner has neither acknowledged nor replied to our letter of 17 March, which raised serious and important issues.

"We now know that BT have already conducted secret trials of this technology, testing the effectiveness of snooping on their customers' Internet activities. They claim to have received extensive legal and other advice beforehand, but have failed to give the reasoning on which this advice is based.

"As we pointed out in our letter, the illegality stems not from breaching the Data Protection Act directly, but arises from the fact that the system intercepts Internet traffic. Interception is a serious offence, punishable by up to two years in prison. Almost incidentally, because the system is unlawful to operate, it cannot comply with Data Protection principles."

Richard Clayton, FIPR's Treasurer, and author of a recent technical analysis of Phorm's technology, said:

"Phorm have accepted the accuracy of my detailed write-up of the way their system works. Examining the detail makes it crystal clear that our earlier letter came to the right conclusion. Website data is being intercepted. The law of the land forbids this.""

ICO statement on Phorm

The Information Commissioner's Office has issued a statement on Phorm.

"“The ICO has received a number of queries concerning the recent announcement by Phorm that 3 major UK Internet Service Providers have agreed to allow them to use technology, developed by Phorm, to present adverts to their customers based on the nature of the websites they visit.

“Understandably, this has provoked considerable public concern. We have had detailed discussions with Phorm. They assure us that their system does not allow the retention of individual profiles of sites visited and adverts presented, and that they hold no personally identifiable information on web users. Indeed, Phorm assert that their system has been designed specifically to allow the appropriate targeting of adverts whilst rigorously protecting the privacy of web users. They clearly recognise the need to address the concerns raised by a number of individuals and organisations including the Open Rights Group. We welcome the efforts they are making to engage with sceptical technical experts and believe that it is only by allowing their technology to be subject to detailed scrutiny by independent technical experts that they will be able to prove their assertions regarding privacy. The ICO strongly supports the use of technology in ways which enhance rather than intrude upon privacy, and plans to produce a report on “Privacy by Design” later this year.

“We understand that the technology is not yet in use and that BT intends to run a trial involving around 10,000 broadband users later this month. We have spoken to BT about this trial and they have made clear that unless customers positively opt in to the trial their web browsing will not be monitored in order to deliver adverts. BT has also stated that the system does not store personally identifiable information, URLs, IP addresses or retain browsing histories and that search information is deleted almost immediately, and is not retrievable.

“We will continue to maintain close contact with Phorm and BT throughout the trial. Clearly the trial should reveal whether this is a service that web users want, whether it is privacy friendly and that users are comfortable with the privacy safeguards put in place by Phorm.”

For all media enquires, please contact the ICO press office on 0207 025 7580.
For all general enquires, please contact the ICO customer service team on 08456 306060."

In the absence of evidence to the contrary they are giving the company the benefit of the doubt on their claims of respecting Internet users' privacy but are keeping a watching brief on developments.

Richard Clayton at Cambridge University who has now had the opportunity to examine Phorm technology in detail remains concerned:

"Overall, I learnt nothing about the Phorm system that caused me to change my view that the system performs illegal interception as defined by s1 of the Regulation of Investigatory Powers Act 2000.

Phorm argue, with some justification, that their system does not permit them to identify individuals and that they meet and exceed all necessary Data Protection regulations — producing a system that is superior to other advertising platforms that profile Internet users.

Mayhap, but this is to mix up data protection and privacy.

The latter to me includes the important notion that other people, even people I’ll never meet and who will never meet me, don’t get to know what I do, they don’t get to learn what I’m interested in, and they don’t get to assume that targeting their advertisements will be welcomed.

If I spend my time checking out the details of a surprise visit to Spain, I don’t want the person I’m taking with me to glance at my laptop screen and see that its covered with travel adverts, mix up cause and effect, and think — even just for a moment — that it wasn’t my idea first!

Phorm says that of course I can opt out — and I will — but just because nothing bad happens to me doesn’t mean that the deploying the system is acceptable.

Phorm assumes that their system “anonymises” and therefore cannot possibly do anyone any harm; they assume that their processing is generic and so it cannot be interception; they assume that their business processes gives them the right to impersonate trusted websites and add tracking cookies under an assumed name; and they assume that if only people understood all the technical details they’d be happy.

Well now’s your chance to see all these technical details for yourself — I have, and I’m still not happy at all."

Carphone Warehouse: we're not copyright police

Whether you call it the '3 strikes' approach, 'graduated response', 'Intenet ASBOs', 'Net lock-outs', or 'ISP copyright policing', Carphone Warehouse boss, Charles Dunstone, says it is not his company's job, according to the BBC.

"The head of one of Britain's biggest internet providers has criticised the music industry for demanding that he act against pirates.

The trade body for UK music, the BPI, asked internet service providers to disconnect people who ignore requests to stop sharing music.

But Charles Dunstone of Carphone Warehouse, which runs the TalkTalk broadband service, is refusing.

He said it is not his job to be an internet policeman."

UK Copyright: How it compares internationally and who are the winners and losers

Due to popular demand, :-), slides first and text of talk below.

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Westminster eForum: IP and the Future of Copyright

UK Copyright: How it compares internationally and who are the winners and losers

March 2008

Ray Corrigan

Open University

Academics tend to get to talk to monochromatic audiences of peers or students and I usually find myself talking to lawyers about technology or technologists about law. So I am delighted to have the opportunity to address such a diverse group of people today, as I firmly believe a cross-disciplinary, evidence-based approach to intellectual property policy-making is essential in our modern world. So many thanks to the Westminster eForum for inviting me along today.

My brief for this morning is to look at current UK copyright legislation – how it compares internationally, and who are the winners and losers. I will be starting with a whistle-stop tour of UK copyright law in historical context, before looking at international comparisons and then focusing on the winners and losers.

Copyright protects literary, dramatic, artistic and musical works, such as books, music, software, films, sound recordings, databases, packaging, tickets, lists of rules, advertisements. It protects the expression of an idea not the idea itself. So if I wrote an article about painting a wall blue and this had never been thought of before, the article would be protected by copyright but everyone would be free to paint their walls blue.

To make things we need resources, including intangible resources like information and ideas. Authors, inventors, blues musicians, creators of all kinds do not create things out of thin air. They use language, stories, professional skills, musical notes and chords, facts and ideas, all building on the work of earlier creators, and their own talents and experience.

To understand copyright in the UK, we really need to understand something about its historical context. The Statute of Anne is sometimes referred to as the first copyright act[1] but was primarily concerned with regulating the monopolistic practices of the book trade. The copyright of the Statute of Anne was designed to protect publishers’ rights to exclusive publication but by 1774, the House of Lords in Donaldson v Beckett held that the limitations on copyright in the statute also applied to authors. What started as a law to protect publishers became a law to protect the rights of authors and today copyright protects the content of the published work itself. Thomas Babbington Macaulay went on to describe copyright in speeches to the House of Commons in the 1840s as a tax on readers to benefit authors.

In 1885 the Berne Convention for the Protection of Literary and Artistic Works was established to encourage respect for copyright internationally. With Victor Hugo being one of the prime movers in developing the convention it arguably stems from the continental tradition of copyright deriving its legitimacy from the rights of the author, as opposed to the English copyright which was based on economic rights.

Britain incorporated its interpretation of the Berne Convention and its subsequent revisions into the Copyright Acts of 1911 and 1956 and the Copyright Designs and Patents Act 1988. There have been a whole host of other important international regulatory instruments which have had an impact on UK copyright law –

• The Rome Convention (International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, 1961)
• The GATT/WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS signed 1994, coming into force in 1995)
• The 1996 World Intellectual Property Organisation (WIPO) Treaties
• Many EU directives since the early 1990s – the intellectual property rights enforcement directive, e-commerce directive, copyright and related rights directive, and directives on databases, software, semiconductors and copyright term harmonisation

– listed primarily to illustrate that the UK does not have a completely free hand in setting domestic copyright policy. So, for example, prior to the copyright term harmonisation directive of 1993, the UK copyright term, in line with the Berne Convention was the life of the author plus 50 years. It was then extended to life plus 70 in line with the directive. Outside of the EU and the US which extended its term to life plus 70 in 1998, in order to match the EU, many jurisdictions still offer the Berne norm of life plus 50, though Mexico is now at life plus 100 years.

Andrew Gowers published his review of UK intellectual property policy in 2006 and made a number of important recommendations, some perceived as controversial, others less so. He recommended stronger enforcement, a private copyright exception to allow format shifting e.g. from CDs to MP3 players, that the UK Patent Office should become the UK Intellectual Property Office, which has had a number of operational implications for our next speaker; and the setting up of an advisory board on IP to include advisers from industry. He also, unusually, commissioned an economic study to consider the extension of copyright term in sound recordings and firmly came out against such a move.

Since the mid 1990s when the World Wide Web (that part of the Internet accessible through a browser) hit the public consciousness, the copyright landscape has been undergoing an upheaval of earthquake proportions. In addition to domestic changes to copyright laws all over the world, there have been a number of international instruments like the 1996 WIPO treaties, EU directives and a number of bilateral and multilateral trade agreements which affect the shape of copyright policies. It is impossible in a short talk to cover every aspect of all of them so I’m just going to consider a couple – copyright terms and how a variety of jurisdictions deal with alleged illicit music sharing via the Internet.

There is no simple answer to the question ‘how long does copyright last for?’ It depends on a number of factors including what type of work it is, where and when it was created and/published and whether it was produced by an individual creator or by or for a commercial agent. In the US and EU copyright in literary works now lasts for the life of the author plus 70 years. In Mexico it is life plus 100 years and many other jurisdictions still maintain the Berne Convention norm of life plus 50 years. Sound recordings are now protected in the EU for 50 years and the US for 95 years. Andrew Gowers recommended against extending this term, as I mentioned previously but Internal Market Commissioner Charlie McCreevy recently committed himself to extending the term in sound recordings at an EU level to match the US term of 95 years. This raises a number of questions e.g.

If the economic case against term extension is so strong, as Gowers concluded, are there other compelling reasons for such an extension and how can we test them?

If the move is to match the US situation, will it mean that artists lose royalties on radio play in the EU which are not available for radio play in the US?

Etc.

Now aside from copyright terms, it is probably also worth thinking about different approaches to ISP liability for copyright infringement. Gowers recommended a voluntary agreement between the relevant agents – the ISPs and the music industry – with the threat of government regulation if they can’t sort it out between them. In the US, ISPs can avail themselves of the DMCA s512 and CDA s230 safe harbour provisions to avoid liability for copyright infringement, provided they have acted quickly to remove the relevant material, once they are notified of an alleged infringement. Arguably Articles 12-15 of the (2000/31/EC) e-commerce directive (and the UK Electronic Commerce (EC Directive) Regulations 2002, s17-19) gives EU ISPs a similar privilege.

But a Belgian court case,[2] towards the end of 2007, has raised significant questions about this by pointing out that the EU copyright directive of 2001 states that “Member States shall ensure that rights holders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right”. The court ordered the ISP to deploy filters to block copyright infringement. The case is under appeal but will be worth watching closely.

Arguably the most useful thing that ISPs can do for the music labels is to link an IP address to an individual ISP subscriber. The Totalise v Motley Fool[3] Internet defamation case in 2001 made it legitimate for an ISP to reveal personal information in this way despite possibly contravening section 35 of the Data Protection Act. The automatic rubber stamping of the revelation of personal data allowed under the DMCA in the US is arguably not permissible in the EU (see the Sheffield Wednesday case[4] from 2007 where the UK High Court ruled that comments made on a fan's website, though technically defamatory, were still sufficiently trivial that they did not merit invading personal privacy to the extent that the club's directors should be allowed to access the identity of the 7 individuals making those comments.) In Canada the situation is similar to the EU where, in 2005, the Canadian federal appeal court refused to allow the music industry access to the identity of ISP customers suspected of engaging in copyright infringement.[5]

But the disclosure of identity is just the first step in the process of going to court or issuing a cease and desist letter. This takes time and money and is not streamlined and although Ireland, England, the US and a number of other jurisdictions facilitate the identification of ISP subscribers suspected of illicit file sharing, upper courts in Germany, Canada and elsewhere have blocked such revelations on privacy grounds. So the process can be a bit of a lottery for all concerned.

This leads us neatly on to winners and losers.

There are three main parties with a stake in the copyright pie:

• Creators

• Agents (and I use the term in the economic sense here to cover all the commercial entities involved in the copyright arena e.g. music, film, software, media companies, publishers etc.)
• And the general public (or consumers)

Each of the three sets of stakeholders will have within them a massive range of different kinds of creators, businesses or consumers – all of which will have their own demands of the copyright system – but for simplicity sake I am just going to look at the three groups.

We can take a theoretical stab at how the state of the copyright system – depending on, for example term, scope, penalties, case law, enforcement – will affect each of our stakeholder groups. And we can see from the graphs that the optimum system is different for each group but for it to work the interests of all three groups must be catered for. So immediately we see the need for compromise. Strong copyright might raise economic incentives to create and commercialise, for creators and agents, but it may restrict public access and the access of creators to build on the work of earlier creators. Weak copyright lowers economic incentives for creators and agents but consumers and second generation creators have greater access and freedoms. So there always have to be trade offs for the system to work, since theoretically

Z_a > Z_c > Z_consumers

(possibly) and we can construct a model illustrating that the “best” copyright system, at least from an economic perspective, is one where the weighted sum of the benefits to creators, agents and the public is maximised.

The problem is that there is very little empirical evidence available on copyright and intellectual property policymaking more generally. And the studies that are available are often contradictory. So for example Oberholzer and Strumpf (2004) concluded that Napster had little effect on music sales, yet Blackburn (2004) concluded that it had a substantial effect. The only thing we really know is that internet music swapping, the volume of which we can only guess at but again do not know, has a non-trivial relationship with music sales.

• Some file sharers would otherwise have bought the music,
• some buy more as a result of finding bands they like,
• some get access to music that is no longer commercially available or music released under different licenses like creative commons,
• some would not otherwise get access to the music at all because they lack the disposable income and so on.

So who are the winners and losers when copyright changes?

Let’s take Commissioner McCreevy’s proposed 45 year term extension in sound recordings for example.

Clear winners are creators and agents with commercially successful works which would otherwise fall into the public domain 45 years earlier. Now only about 4% of copyright works older than 20 years are commercially available, so 96% remain locked up for another 45 years even though no one is selling them. So the public lose out, as do creators who would like to build on those works (and the 4%).

Another recent development has been the French government’s signing of a memorandum of understanding with the ISPs and the entertainment industry, to facilitate a 3 strikes rule. The idea is that people suspected of infringement get one warning, one temporary suspension of services for a second offence and then get locked out of the Net for a third offence. Japanese ISP associations are considering a similar deal but in Sweden the government has rejected such an idea.

The winners are again some creators and agents whose sales are undermined by the users targeted. Losers are the public subject to constant surveillance, some agents like ISPs who bear the cost of policing the system, and the folk who get cut off from the Net – a severe sanction – possibly without due process guaranteed by human rights laws. Practical considerations might mean that for the scheme to be workable on the part of the ISPs it would have to be automated and internal to the ISPs – though in the French case the process is to be supervised by a judge and independent tribunal.

The system also raises quite a few other legal questions e.g. there is a presumption of guilt not innocence. The person linked to the IP address identified as an alleged source of infringement is automatically assumed to be guilty and has the burden of proving their innocence. There are a large number of ways that people might be wrongly accused - there are a lot of reasons why the person linked to the IP address - i.e. the formal ISP subscriber - might not be the infringer. It could be other family members or their friends or others accessing open wireless access points (wifi piggybacking), or trojans enabling remote control of that machine.

There are a lot of questions of detail with no clear answers yet available. Will there be access to the courts for those wrongly accused? How long does the Internet ban last? Etc.

Even if we could overcome these problems, there is the legal question about whether a 3 strikes law is a proportionate response to the specific problem. According to the Promusicae v Telefonica case in the European Court of Justice (2008), the rights of the music labels to protect their copyrights must be balanced with the basic human rights of users of the Net. Having access to the Net is now a basic part of nearly everyone's life in the developed world and it relates to basic rights to

• free expression
• freedom of association
• education
• and employment

And the European Convention on Human Rights and every other serious international charter of rights says that if a law is not proportionate it is not legal.

In other words, even with the legitimate aim of defending or protecting copyrights, the ECJ clearly instructed member state governments that they are not to endanger human rights or proportionality. Some legal commentators, most notably Professor Lilian Edwards of Southampton University, actually think that this part of the decision was clear dicta from the court, aimed directly at the kind of 3 strikes notice and disconnect schemes the French have implemented and others are considering. So there is a good chance that the ECJ would strike down such schemes challenged at that level, on the grounds of proportionality.

I will round off, then, with a call for evidence based policy making on copyright and ask you to remember that radio took 40 years to reach an audience of 15 million. TV took 15 years and the World Wide Web part of the Internet did it in 3 years. The law cannot and does not have to instantly react to changes in technology. So when it comes to regulating in this area, I tend to subscribe to London University Professor Chris Reed’s doctrine of creative inertia – watch closely to see what happens, gather robust empirical evidence on creators, agents and consumers, and legislate based on that evidence.

Thanks for your time and attention.

---

[1] There were earlier related acts such as the Star Chamber Decrees of 1586 and 1637, the Ordinances of 1643 and 1647 and the Licensing Act of 1662 (which expired in 1694)

[2] SABAM v Tiscali (Scarlet). See http://www.cardozoaelj.net/issues/08/case001.pdf for a translation of the decision.

[3] See http://www.hrothgar.co.uk/YAWS/reps/totalise.htm for full decision

[4] See http://www.bailii.org/ew/cases/EWHC/QB/2007/2375.html for full judgement

[5] See http://www.canlii.org/en/ca/fca/doc/2005/2005fca193/2005fca193.html BMG Canada Inc. v. Doe, 2005 FCA 193 (CanLII)

Update: After the problem with Slideshare I noticed there was a typo on one of the original slides which I have now corrected (Slide 7. Now reads CDA s230, instead of CDA s236)

Westminster eForum: IP and the future of copyright

I had the privilege of opening the Westminster eForum's seminar on Intellectual Property and the Future of Copyright on Monday. It was a wide ranging session including speakers and delegates from all corners of the intellectual property landscape.

The most impressive speaker on the day was Ian Fletcher, Chief Executive of the UK's Intellectual Property Office. He talked with authority and conviction on the need for evidence based policy making in this area. I must have looked like a nodding dog at the speakers' table alongside, since I found myself agreeing with everything he had to say.

Intellectual property policy has traditionally been an evidence-free zone and to hear someone in such a position demonstrating a commitment to build an economic and social evidence base was extremely heartening. He was also prepared to say that:

• some interested groups were very good at lobbying and influencing decision making in IP
• we must recognise that every creator's inputs are someone else's outputs
• that we must be very careful about our use of language and not allow it to distort the debate or our understanding
• that we have to gather robust and thorough empirical evidence on how to move forward and that some will not like what the evidence has to say
• we need to ask hard questions including whether copyright term is actually too long and should be reduced - he asked a whole series of difficult and genuinely open questions like this without intent to pre-judge the outcomes of any evidence gathering
• that there tends to be a constant leveraging up of the strength and scope of IP protections - the US has this, so the EU should have likewise; the EU has that, so the US should have the same etc.
• that Andrew Gowers' key insight was to bring economics to the IP table

With that kind of thinking at the heart of the UK IPO, we can look to the future with some optimism.

The other highlights of the seminar were contributions from Becky Hogge of the Open Rights Group and film-maker, Jamie King, director of Steal This Film II. On the industry side Shira Perlmutter of the IFPI was quietly effective though I disagreed with some of what she had to say; Richard Mollet of the BPI started out well as you would expect of a confident, experienced PR professional but then, from my perspective, slightly misjudged the mood and came across as irritated that others, such as Andrew Gowers, had a different world view which was taken seriously. What was interesting was when he admonished us to get our language right - we should apparently be labeling the '3 strikes' laws/memorandums/agreements as a "graduated response" approach. Kettles, pots and a certain colour come to mind and anyway I think I prefer Louise Ferguson's "Internet ASBOS" as a more appropriate tag.

If anyone would like a copy of my own contribution to the morning, let me know and I'll send you the text of my talk and associated slides. Alternatively I'm happy to post it in full here. I'm hoping it came across as relatively neutral but evidence-focussed and a reasonable indication to that effect was that I was subsequently quoted by various speakers on different sides of the debate as supporting what they had to say. I should say the back end of my speech was inspired by Lilian Edwards - some of it indeed was lifted directly from my blog post about Lilian's OII 'Musicians, fans and online copyright' talk recently! Other parts were based on the work I did with Mark Rogers of Oxford University on the economics of copyright.

Update: A recording of Becky Hogge's talk is now available at ORG.

USPTO reject Blackboard patents

The US Patent and Trademark Office has reportedly issued a preliminary ruling rejecting Blackboard's patent on delivering courses via the Net. The Chronicle says:

"The U.S. Patent and Trademark Office has issued a preliminary decision that rejects all 44 claims Blackboard Inc. made regarding the controversial patent it was granted for an online-learning system. If upheld, the decision could have sweeping ramifications for Blackboard's competitors and universities that use course-management software."

The ruling itself is available at Desire2Learn who are pleased:

"On March 25, the U.S. Patent & Trademark Office issued its Non-Final Action on the re-examination of the Blackboard Patent. We are studying the document, found here, but in short, the PTO has rejected all 44 of Blackboard's claims. We caution that this is a NON-final action; both Blackboard and Desire2Learn will have an opportunity to comment before a final action will issue, and after that, the decision will be subject to appeals.

However, we're still pleased."

Blackboard have responded to the ruling and are not so pleased but suggest it doesn't change anything:

"Today, the United States Patent and Trademark Office issued a first Office Action in the reexamination proceeding regarding Blackboard’s U.S. Patent 6,988,138 ("the'138 Patent"). This Office Action was expected and is the first step in a reexamination process that often takes years to complete. It has no effect on the validity of the patent, the lawsuit between Blackboard and Desire2Learn or the pending injunction against Desire2Learn that will go into effect on May 10th, 2008, precluding ongoing sale or use of their Learning Environment products and services...

Blackboard will now have two months to respond to each of the Patent Office’s questions, all of which were unsuccessfully raised by Desire2Learn in the recent litigation.

With that in mind, and given that more than 90% of patents that undergo reexamination of this kind ultimately are upheld, we remain very confident in the validity of our patent and that the Patent Office will agree with the ruling in Federal Court last month. While the reexamination process moves forward, the issued patent will remain both valid and enforceable."

The USPTO's decision and the reactions were relatively predictable and Desite2Learn are right to urge caution, as are Blackboard to point out it is only one step in a long process. So it is a case of keep watching on this one I'm afraid. Ultimately, though, the patent is unlikely to withstand detailed, robust, prolonged and rational scrutiny. Unfortunately, in the meantime, the damaging adjective in that list is "prolonged".

Germany's top court curbs anti-terrorism Law

From DW-World: Germany's Top Court Curtails Disputed Data Storage Law

"In a blow to Berlin's efforts to boost anti-terrorism measures, Germany's highest court on Wednesday, March 19 blocked parts of a sweeping data-collection law that had prompted large protests by civil liberties

Germany's constitutional court on Wednesday severely curbed parts of a wide-reaching and highly controversial data collection law that requires telecom companies to store telephone and Internet data for up to six months, dealing a setback to government efforts to fight terrorism.

The law which went into effect in January gave the federal government broad access to data including e-mail addresses, length of call and numbers dialed and in the case of mobile phones, the location calls are made from."

3 Strikes Copyright

The Times reported last month that the UK government were considering following the French lead and introducing a '3 strikes and you're off the Net' law for suspected copyright infringement. The music industry in the form of the IFPI and the BPI are very supportive of the idea, the ISPs less so.

Lilian Edwards gave a very interesting presentation on the legal aspects of a possible 3 strikes law in the UK at the OII's Musicians, fans and online copyright event at LSE last week.

Lilian began by asking if the government has a role here what are the angles? And then went on to say:

The music industry in Europe has followed their counterparts in the US in suing users of P2P networks but EU courts have been generally less willing to process such cases as efficiently as the US court system. In addition it does not seem to be very good business practice to sue your customers.

ISPs, supported by the e-commerce directive, can issue takedown notices for allegedly defamatory or copyright infringing material but this is not really scalable. Another option is the for ISPs to share of anonymised logs but music companies can do that anyway. The most useful thing that ISPs can do for the music labels is to link an IP address to an individual ISP subscriber. The Totalise v Motley Fool Internet defamation case in 2001 made it legitimate for an ISP to reveal personal information in this way despite arguably contravening section 35 of the Data Protection Act and many ISP's own privacy policies. The automatic rubber stamping of the revelation of personal data allowed under the DMCA in the US is arguably not permissible in the EU (see the Sheffield Wednesday case from 2007 where the UK High Court ruled that comments made on a fan's website, though technically defamatory, were still sufficiently trivial that they did not merit invading personal privacy to the extent that the club's directors should be allowed to access the identity of the 7 individuals making those comments.) In Canada the situation is similar to the EU where, in 2004, the Canadian federal appeal court refused to allow the music industry access to the identity of ISP customers suspected of engaging in copyright infringement.

But the disclosure of identity is just the first step in the process of going to court or issuing a cease and desist threat. This takes time and money and is not streamlined and it can lead to lots of embarrassment as we have seen in the US where 8 year olds and dead people get threatened and sued. These kinds of cases are very visible and not good public relations for the industry. So the music industry in particular would prefer a simple notice and disconnect model instead of a difficult, time consuming, costly, transparent and public process.

However, they need all the ISPs to agree or it is no use. At the moment, however, in the UK at least, they can't get everyone to agree.

And following on from a commitment made in the wake of the Gowers Review of Intellectual Property in the UK, without a voluntary agreement on the part of the industries concerned, the UK government are going to consult on legislation to sort it all out. There are no details yet on what form such legislation might take and it was heartening to hear from a representative of the government earlier in the day that they had no fixed ideas in the area. One rumor, persistently doing the rounds, however, was that the UK was considering following the French with a 3 strikes law - a warning, a short suspension of services and then you're off the net for good sequence of strikes issued against people suspected of engaging in copyright infringement via the Net. There are absolutely no details available though the the hypothetical UK version of the proposal. How, for example to appeal a false accusation? What the arbitration process might be? Access to courts and visible/transparent due process when things go wrong for all parties. 4 Japanese ISP associations are apparently considering something similar to the 3 strikes approach.

Whatever form such a proposal might take it raises a number of legal objections.

Due process?
If we withdraw access to the Net from a large number of people in the UK (and 6 million plus are considered to be engaged in copyright infringement via the Net in the UK alone), should such withdrawal be by a closed industry procedure? Practical considerations mean that for the scheme to be workable on the part of the ISPs it would have to be automated and internal to the ISPs. No impartial process or judge would be overseeing it (as is happening in the French case). But we have to realise that ISPs are not Net police but service providers. They are not set up for policing. In court copyright infringement would have to be increased to the standard of a criminal infringement because withdrawal of access to the Internet feels very much like a criminal sanction.

In addition there is a presumption of guilt not innocence. The person linked to the IP address identified as an alleged source of infringement is automatically assumed to be guilty and has the burden of proving their innocence. There are a large number of ways that people might be wrongly accused - there are a lot of reasons why the person linked to the IP address - i.e. the formal ISP subscriber - might not be the infringer. It could be other family members or their friends or others accessing open wireless access points (wifi piggybacking), or trojans enabling remote control of that machine.

There should be an absolute commitment to starting with a presumption of innocence rather than a presumption of guilt by an industry with an economic stake in an outcome whereby someone is held responsible.

Will legal access be available to the accused? Or does someone have to be cut off first? Article 6.1 of the European Convention on Human Rights (ECHR) and every substantive international human rights instrument guarantees the right to due process. Is access to the Net itself a basic human right? Article 36 of the ECHR would suggest so or at least it is very close. The French scheme is better than an unmediated scheme since it allows for the access to an independent tribunal with the oversight of a judge.

Even if we could overcome these problems, there is a serious legal question about whether a 3 strikes law is a proportionate response to the specific problem. According to the recent Promusicae case in the European Court of Justice the rights of the music labels to protect their copyrights must be balanced with the basic human rights of users of the Net. Having access to the Net is now a basic part of nearly everyone's life in the developed world and it relates to basic rights to

• free expression
• freedom of association
• education
• and employment

and the ECHR and every other serious international charter of rights says that if a law is not proportionate it is not legal. As Lilian said in the immediate aftermath of the Promusicae decision:

"the Court finally held that, turning to fundamental rights in the EC Charter, if the fundamental rights to property, and to privacy (which appear therein, as well as in the ECHR) appear to come into conflict when EC Directived are implemented in national laws , well, then , IP does not take precedence over privacy (or vice versa): instead, national courts must "make sure that they do not rely on an interpretation of [national laws] which which would be in conflict with these rights." (para 68) Put it plainly: IP rights do not trump DP rights, says the ECJ.

In other words also - my interpretation purely, now - although the ECJ have not said that laws requiring automatic disclosure of personal data to rights holders to protect IP rights would be illegal under the PECD, a serious warning has been issued to national legislatures not to be pushed into passing such laws, without considering first if rights of protection of personal data are being taken properly into account."

In other words, even with the legitimate aim of defending or protecting copyrights, the ECJ clearly instructed member state governments that they are not to endanger human rights or proportionality. Lilian actually thinks that this part of the decision was a clear dicta from the court aimed directly at the kind of 3 strikes notice and disconnect schemes the French have implemented and others are considering.

More on Musicians Fans and Online Copyright when I get the chance.