UK IPO cautious about EU proposal to extend copyright term

On Friday last the UK Intellectual Property Office issued a preliminary response to EU proposals to extend the term of copyright in sound recordings to 95 years. The tone of the response is predictably cautious given that the Gowers review of intellectual property law in 2006 came out firmly against such an extension.

"UK-IPO response to the European Commission's proposal to extend the term of copyright protection

The UK-IPO today responded to the European Commission's proposal to extend the term of copyright protection for sound recordings from 50 to 95 years.

Additional measures in the Directive include a proposal that record producers set aside 20% of all revenues for a fund for session artists. A 'use it or lose' it clause should enable performers to regain the rights in recordings over 50 years old which are no longer available commercially. There is also a proposal to align the term of protection for the music and lyrics which together make a musical composition.

Minister of Intellectual Property Baroness Delyth Morgan said,

"Because copyright represents a monopoly we need to be very clear that the circumstances justify an extension. We will therefore need to consider these proposals carefully to understand how they would work and what the benefits are likely to be. I would like to hear what the public thinks about this and would urge all those who have an interest in these proposals to make sure their voice is heard and to contact the UK-IPO by the end of August."

The Gowers Review of Intellectual Property, an independent government commissioned review, recommended against an extension of copyright term. Evidence suggested that extending the term of protection would negatively impact on consumers and industry.

Editor's notes

* Andrew Gowers undertook a review of Intellectual Property in 2005 and reported his findings to the Government in December 2006. He identified a number of areas where improvements could be made. The Government committed to taking the recommendations forward. The full review can be viewed at The HM Treasury website. http://www.hm-treasury.gov.uk./media/6/E/pbr06_gowers_report_755.pdf

* As part of the Gowers Review a report was commissioned from the Centre for Intellectual Property and Information Law to examine the economic evidence for extending the term of protection for sound recordings. The full review can be viewed at http://www.hm-treasury.gov.uk/media/B/4/gowers_cipilreport.pdf

* If you have any comments on the proposal you are invited to send them to Barbara Squires at: Termextension@ipo.gov.uk by the end of August."

One million on the terrorist watch list?

Via FIPR, from Paul Craig Roberts at AntiWar.Com: One Million Terrorists?

"The Bush Regime's "terrorist" protection schemes have reached the height of total incompetence and utter absurdity. According to the American Civil Liberties Union...

One of them is that of former Assistant US Attorney General Jim Robinson, whose top security clearances are current...

What confidence can we have in a regime that is incapable of differentiating an Assistant US Attorney General from a terrorist?

Mr. Robinson said: "If I were convinced that America is a safer place because I get hassled at the airport, I might put up with it, but I doubt it. I expect my story is similar to hundreds of thousands of people who are on this list and find themselves inconvenienced."

"Hundreds of thousands of people" on a watch list that they have no business being on?

[...]

How can Airport "Security" possibly protect anyone when the idiots cannot differentiate a high level American government official from a terrorist?

[...]

The morons who comprise the US government call the "watch list" one of the government's "most effective tools in the fight against terrorism.""

You do wonder what the founding fathers would have made of it.

Update: The TSA say the suggestion that there might be so many on a watch list is a myth. Isn't it great that the TSA has a blog, even though it is making claims like:
"Once TSA's Secure Flight initiative is in place the number of misidentifications will be GREATLY reduced."

Telecoms package and copyright - some MEP views

I wrote to my MEPs last week about the vote on the complex telecoms package in the EU's IMCO and ITRE committees, particularly noting that several amendments might facilitate the coming of a 3 strikes mandate.

I've had several responses including one this morning from Conservative MEP, James Elles, who kindly sent me a summary of the views of Malcolm Harbour MEP, Conservative Spokesman on the Internal Market and Consumer Protection. Mr Harbour was also the proposer of some of the amendments which raised concerns. His views, as passed on by Mr Elles are as follows:

"Summary of reply from Malcolm Harbour MEP, Conservative Spokesman on the Internal Market and Consumer Protection:

Thank you for your e-mail concerning certain aspects of the Telecoms reform package, which is now going through the European Parliament.

I wanted to update you following the vote on July 7th in the Parliament's Internal Market and Consumer Protection Committee, which produced a very large majority in favour of a series of amendments that significantly enhance users´ rights in electronic communications. Some of the key points are summarised below:

· Users will now be informed by operators, before contracts are concluded, about any restrictions on access to services (such as Skype).

· Market demand and competition between operators will decide whether they see any point in restricting access. The IMCO vote does not give governments new powers to decide that, or to make applications illegal.

· Where handsets or other terminal equipment are included free, or at a subsidised price, users must be informed of the cost of terminating their agreement early.

· Number porting (the process of keeping a number when switching networks) will now take one day (while it has previously taken up to one month). However, there are also provisions in case of slamming (when a consumer is switched to another network without their consent) which will allow NRAs to intervene in such cases.

· Promotion of the European 112 emergency call number across the EU, and measures to speed up the availability of mobile caller location when emergency calls are made. This is complementary to existing national emergency numbers.

· Disabled users will have equivalent access to communications with special terminal equipment for their needs.

· The need to keep the Internet open by empowering regulators to intervene if a carrier discriminated against a particular service provider - for example, by blocking or slowing traffic.

· Regulators would be given enabling powers to allow standardised public service messages to be delivered to users. These service messages could include security protection advice, and advice on harmful or unlawful uses of the Internet, and their potential consequences. The information would be sent to all users, not to targeted individuals and not based on individual usage. Copyright infringement is just one of the areas that might be covered, but it will be up to public authorities to supply the information.

· Under Parliament's rules, the Committee also accepted, without a vote, a set of amendments from the Civil Liberties Committee on data protection. These include significant new requirements for operators to inform subscribers in the event of any breach of their personal data through electronic networks

The level of cross party support confirm that MEPs totally reject the claims that these amendments are intended to reduce consumer choice and undermine individual freedom. In particular, the Directive contains no provisions on Copyright Law enforcement, not does it refer, in any way, to the French Government's proposed enforcement agreement. MEPs will examine the detailed drafting of all amendments before the final approval by Parliament in September.

Malcolm Harbour MEP 08 July 2008"

I've responded further to Mr Elles as follows:

Dear Mr Elles,

Thank you for your response and the copy of Mr Harbour's views.

I would just point out that one of Mr Harbour's own proposed amendments to the telecom package would require national regulatory authorities to "oblige" telcos/ISPs (Internet service providers) "to distribute public interest information to existing and new subscribers when appropriate" warning about the infringement of copyright. Another of Mr Harbour's amendments requires national authorities to "promote cooperation" between ISPs and "services and the sectors interested in the protection and promotion of lawful content".

In addition your colleague, Syed Kamal, has proposed an amendment which essentially says regulatory authorities should not mandate one digital rights management (DRM) technology at the expense of available market alternatives.

I'm sure Mr Harbour is sincere in his belief that "the Directive contains no provisions on Copyright Law enforcement" but it is quite difficult to see how copyright spam, mandated cooperation between ISPs and rights holders, and drm are not about copyright.

Thanks again for taking the time to read and respond to my correspondence.

Regards,

Ray Corrigan

As I've said before, though, Lilian Edwards has been reassured by Mr Harbour's assertion that amendments were not intended to lead to a 3 strikes mandate in member states.

In summary the responses from other MEPs were as follows:

Independent Ashley Mote is voting against the telcoms package. Nigel Farage of UKIP sees the EU as "inherently, irreformably and dangerously un-democratic and anti-democratic" and Andrew S Reed who responded on Mr Faragee's behalf is sure he shall vote as I would wish.
Cath Miller, Constituency Coordinator and Researcher for Caroline Lucas of the Green Party, produced the most comprehensive response as follows:

"Dear Ray,

Thank you for your email about this week’s vote on the Telecom Universal Service Directive in the European Parliament’s Internal Market and Consumer Protection Committee. Caroline has asked me to respond on her behalf.

She does not sit on this committee but other members of the Green Group do, so have been working hard to ensure that any adopted text guarantees citizen’s rights. Greens tabled an amendment requiring ISPs to ensure that subscribers can send and receive any form of content. We do recognise that in some extreme circumstances it might be necessary for ISPs to take action to preserve the integrity and security of the networks, but argue that this provision must relate only to network management i.e restrictions intended to avoid degradation or slowing of traffic in networks.

The compromise legislative text does state that ISPs do not have the right to monitor or block traffic on the internet. However, elsewhere it is made clear that the public should be informed about any activities that are unlawful. Caroline has serious concerns about the way this aspect of the legislation could be interpreted. For example who determines what constitutes lawful or unlawful activity? She does not agree that such definitions should be developed at EU level, arguing that national definitions might be more appropriate. Further, the purpose of warning users about unlawful activity is designed to create the circumstances in which restricting use is permissible, along the lines of the French ‘three strikes and you are’ out model.

Caroline’s work on the International Trade Committee has involved looking at issues such as file sharing and the fact that stealing a television, for example, is very different to ‘stealing’ a film from the internet, because the latter does not deprive others in the same way. She believes that alternative ways to support artists, writers and so forth must be developed, alongside a far more open policy of sharing music, film, software etc via the internet. This has relevance to the Telecom vote and the Green Group will be urgently discussing whether to support the Directive when it comes to plenary after the summer recess. Caroline thinks we need amendments that clarify the text by removing the vague and dangerous concept of "lawful", as it does not belong in the telecom package, and that seek to keep real net neutrality.

Greens submitted successful amendments that require ISPs to provide information to subscribers annually about more competitive tariffs and that promote an overall maximum contract periods of 24 months, with a 12 month maximum always offered. The main thrust of the Directive is to open the telecommunications market to competition and Greens have supported measures to separate the ownership of telecoms infrastructure and service provision, as we argue this is the only way to guarantee true market liberalisation from which consumers can benefit.

Caroline is confident that this Directive has been properly scrutinised and that it has not been ‘sneaked through’ as some critics are arguing. Green MEPs have been actively following its progress since the Commission’s proposals were first published in 2007 and the text has been the subject of focused work in committee since April of this year. It is now likely to come before plenary in September after the parliamentary recess.

Please be assured that when some members of the Culture and Education Committee sought to give ISPs a policing role in previous legislation, these efforts were rigorously and successfully resisted by Green MEPs. We were also at the forefront of the campaign to oppose software patenting and won support from the Parliament – see http://www.greens-efa.org/cms/topics/dokbin/102/102955.save_our_software@en.pdf

Green views on the Telecom Directive do vary but are in favour of the maximum free flow of information and ideas on the internet and against any indiscriminate restriction of the use of the web.

Thank you for taking the time to write to Caroline.

Kind regards,

Cath.

Cath Miller

Constituency Coordinator and Researcher

Office of Dr Caroline Lucas"

Ms Miller's point about that "we need amendments that clarify the text by removing the vague and dangerous concept of "lawful", as it does not belong in the telecom package, and that seek to keep real net neutrality" is well made. Requiring ISPs to determine what is "lawful" and implement architectural measures to deal with that interpretation is untenable. I do, however, lack Dr Lucas's confidence that this legislative monster has been properly scrutinised.

I've had no response to date from Baroness Nicholson of Winterbourne MEP (Lib Dems), Sharon Bowles MEP (Lib Dems) or Peter Skinner MEP (Labour).

World of Warcraft: You Bought It, But You Don't Own It

Reaction to the Blizzard v MDY decision from Corynne McSherry at the EFF:

"In a devastating blow to user rights, an Arizona federal court has ruled that consumers can be guilty of copyright infringement if they violate the end user license agreement ("EULA") that comes with the software--even where the so-called "violation" is specifically excluded from copyright liability. Why? Because those protections only apply if you own the software you buy--not if you license it. Stunningly, this means that "cheating" while playing a computer game can expose you to potentially huge statutory damages for copyright infringement.

As we noted back in May, Blizzard Entertainment, the company that makes the hugely popular massively multi-player online role-playing game World of Warcraft, sued Michael Donnelly, the developer of Glider, a program that helps WoW users raise their character level to 70 by "playing" for the user. Blizzard said that because the license agreement forbids using Glider with WoW, Glider users are committing copyright infringement when they load copies of WoW into RAM in order to play the game, and Donnelly is illegally contributing to that infringement...

Sadly, the court ... held that because Blizzard says the software is licensed, and because it imposes restrictions on use ... that means that users who violate the EULA could be on the hook for copyright damages... as high as $150,000 per infringed work. Most disappointing, the court gave short shrift to the absurd policy consequences of treating users who violate a contract as copyright infringers. The logical implication of the holding is that any time you buy software, be it film editing software, accounting software, iTunes, Skype, etc., software owners can always use license agreements to prevent you from ever having full control over your software and taking advantage of standard copyright limitations (such as the right to sell your copy [Section 109 of the Copyright Act] or the right to make copies necessary for use of the software [Section 117]). You can buy it, but you can’t own it."

Update: Via Michael Geist, Information Week had a report on the case yesterday. The report references William Patry's reaction to the decision.

"The court's holding on the copyright claims compares very unfavorably to its handling of the DMCA claims, permitting a chilling extension of control by copyright owners of software over copies of programs they have sold. The critical point is that WoWGilder did not contributorily or vicariously lead to violating any rights granted under the Copyright Act. Unlike speed-up kits, there was no creation of an unauthorized derivative work, nor was a copy made even under the Ninth Circuit's misinterpretation of RAM copying in the MAI v. Peak case. How one might ask can there be a violation of the Copyright Act if no rights granted under the Act have been violated? Good question.

To get to its result, the court had to first find that WoW, even though sold over the counter, was licensed not sold... There was in fact no provision in the license that barred use of WoWGlider. The court took the extraordinary step of stitching together two unrelated provisions to create one. You have to read it to believe it, but it took the court 8 pages to go through this hard work, and why? Was the court offended by what it regarded to be cheating? If so, God help us if law is being reduced to such subjective, non-statutory grounds."

EU propose extension in copyright term

Well the EU has not been slow about following up on Charlie McCreevy's promise to extend the term of copyright in sound recordings. From Europa:

"The Commission adopted a proposal to extend the term of protection for performers and sound recordings to 95 years. The aim of the proposal is to bring performers' protection more in line with that already given to authors - 70 years after their death. The extended term will enable performers to earn money for a longer period of time and in any event throughout their lifetime. The income from copyright remuneration is important for performers, as they often do not have other regular salaried income. The extended term will also benefit record producers who will generate additional revenue from the sale of records in shops and on the internet. This should allow producers to adapt to the rapidly changing business environment and help them maintain their investment levels in new talent.

The proposal also contains accompanying measures which aim specifically to help performers. The 'use it or lose it' clauses which will now have to be included in the contracts linking performers to their record companies will allow performers to get their rights back if the record producer does not market the sound recording during the extended period. In this way the performer will be able to either find another record producer willing to sell his music or do it himself, something that is possible easily via the internet. In case neither the performer nor the producer would wish to market the recording, the recording would no longer be protected. In this way, the term extension would avoid 'locking up' those recordings that are not commercially interesting. Finally, record companies will have to set up a fund into which they will have to pay 20% of their revenues earned during the extended period. The money from this fund will be destined to help session musicians."

The press release justifying the move is here and the actual proposal for an EU directive (amending Directive 2006/116/EC on copyright term) is here. Let's be clear here - there is absolutely no economic justification for the extension of copyright term in sound recordings. Anyone who can do a simple discounted cash flow calculation can demonstrate that. The proposal says:

"The proposal aims to improve the social situation of performers, and in particular sessions
musicians, taking into account that performers are increasingly outliving the existing 50 year
period of protection for their performances.

The large scale production of phonograms is essentially a phenomenon that commenced in the
1950s. If nothing is done, over the next 10 years an increasing amount of performances
recorded and released between 1957 and 1967 will lose protection. Once their performance
fixed in a phonogram is no longer protected, around 7000 performers in any of the big
Member States and a correspondingly smaller number in the smaller Member States will lose
all of their income that derives from contractual royalties and statutory remuneration claims
from broadcasting and public communication of their performances in bars and discotheques.
This affects featured performers (those who receive contractual royalties) but especially the
thousands of anonymous session musicians (those who do not receive royalties and rely solely
on statutory remuneration claims) who contributed to phonograms in the late fifties and sixties
and have assigned their exclusive rights to the phonogram producer against a flat fee payment
('buy out'). Their 'single equitable remuneration' payments for broadcasting and
communication to the public, which are never assigned to the phonogram producer, would
cease."

If the aim really is to "improve the social situation of performers, and in particular sessions musicians" how are these sessions musicians going to be helped by an extension of copyright term when they "do not receive royalties" and "have assigned their exclusive rights to the phonogram producer against a flat fee payment ('buy out')." Yes they may have access to extended "'single equitable remuneration' payments for broadcasting and communication to the public" but wouldn't it be much better to set up a pension scheme for such musicians? A plumber who fixed a tap in 1958 does not get a perennial income on that job. And certainly does not get to extend that income for another 45 years just because a deal he might have signed up to in the 1950s is running out. The main beneficiaries of extension of copyright term are the commercial organisations and still popular artists who hold copyrights in commercially valuable recordings from the 1950s and 60s, not the sessions musicians that the proposal claims to be aimed at.

By all means support sessions musicians with proper pension funds but do not do so by handing large quantities of money to small numbers of commercial or wealthy entities in the hope that some of the pennies may find their way to the people who really need them. The Times headlines the proposal today: Sir Cliff Richard pins hopes on law that will keep cash rolling in until he’s 113

Update: And so says the BBC: Veteran rockers set for windfall and Ars Technica and many others. Nate Anderson at Ars Technica sums up the smoke and mirrors PR nicely:

"The whole bizarre debate never seems to haul itself around to addressing the fact that everyone who participated in the current system did so knowing about the 50-year term; no one is in danger of "losing" anything they were once promised, and they've had half a century to plan for the future."

Because that's what we've always done

This Slideshare story is so true to life:

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Why Educational Change is Hard

Chris Lehmann has some thoughts on why educational change is hard and the limits of "Here Comes Everybody" for schools.

"So there are a couple of questions that we can examine through Shirkey's lens, then... first, why is it that schools are so hard to transform using these tools when commerce (for instance) has been so easy to change? And second, what has to happen within the community of folks -- loose as it may be -- who care about the notion of 21st Century schools.

So why is it that the changes that are taking root in so many other aspects are not changing education as quickly as we'd like? One of the things that Shirkey writes about is how the new social tools and the powerline graph of user use / success / downloads / etc... has meant that there is no longer a high cost of failure... On an institutional level, schools have an incredible infrastructure that makes them hard to change, but that's really not the big problem when we question the change through this lens.

The big problem is that we never, ever have a low cost of failure. When schools fail, kids lose. Shirky writes in Chapter 10 about how in a traditional business infrastructure, there is a natural disincentive to innovate because "more people will remember you saying yes to a failure than no to a radical but promising idea." (p. 246) I'd argue this is more true in education than in traditional businesses, again because the stakes are so high. So the educational establishment sticks to safe ideas and traditional schooling because we know that while the outcomes may not be amazing, they are predictably mediocre at worst."

"Predictably mediocre". Sadly that sums up our education system and it is predictably failing most people.

Patent Gridlock Suppresses Innovation

The Wall Street Journal seems to have noticed some empirical research (rare enough in itself in the intellectual property arena) suggesting the US patent system undermines innovation.

"New empirical research by Boston University law professors James Bessen and Michael Meurer, reported in their book, "Patent Failure," found that the value of pharmaceutical patents outweighed the costs of pharmaceutical-patent litigation. But for all other industries combined, they estimate that since the mid-1990s, the cost of U.S. patent litigation to alleged infringers ($12 billion in legal and business costs in 1999) is greater than the global profits that companies earn from patents (less than $4 billion in 1999). Since the 1980s, patent litigation has tripled and the probability that a particular patent is litigated within four years has more than doubled. Small inventors feel the brunt of the uncertainty costs, since bigger companies only pay for rights they think the system will protect.

These are shocking findings... Imagine how much more productive our information-driven economy would be if the patent system lived up to the intention of the Founders, by encouraging progress instead of suppressing it."

Understanding identity systems

John Udell has been explaining the virtues of the laws of identity to some non-techie friends and to his surprise they got it!

"In conversation with English and Welsh friends last week, the subject of Britain’s imminent National Identity Scheme came up. My friends, who are worldly and well-educated but not technical, voiced concerns about the amount of personal information that will be stored. Their understanding was that a lot of this information will be kept on the new ID card. In fact, the proposal says that only a subset will stored on the card, which will be backed by a cloud-based (and decentralized) National Identity Register. But either way, my friends’ concerns are of course valid. If governments or businesses aggregate too much personal information, accidents and abuses will occur.

At the same time, my friends do recognize the need for a strong and secure means of identification. So they’re not opposed to identity cards on principle, they just don’t want those cards to contain, or link to, extensive dossiers.

At this point, channeling Kim Cameron, I launched into an explanation of the laws of identity and the identity metasystem. Well, sort of. I didn’t say anything about cryptography, or digital certificates, or XML web services. But I did paint a picture of a world in which individuals interact with many identity providers and many relying parties, in which all actors trust one another in exactly the ways they already do today, and in which disclosure of personal information is minimal and context-dependent.

Halfway through I thought, well, this will never fly. This whole scheme is based on decentralization and indirection, and I know people don’t take naturally to those concepts.

But…they completely got it! ... it was a hopeful moment. "

Google and Viacom deal on anonomising YouTube data

YouTube blog and the Guardian are suggesting that an agreement has been reached about anonymising the data from the YouTube logging database that a court ordered Google to hand over to Viacom. From the Guardian:

"Google has struck a deal to protect the personal data of millions of YouTube users in the $1bn (£497m) copyright court case brought against the video-sharing website by Viacom.

Under the deal, Google will make user information and internet protocol addresses from its YouTube subsidiary anonymous before handing over the data to Viacom in the US legal case."

YouTube blog (Google) says:

"As we let you know on July 4, YouTube received a court order to produce viewing history data. We are pleased to report that Viacom, MTV and other litigants have backed off their original demand for all users' viewing histories and we will not be providing that information. (Read the official legalese here.)

In addition, Viacom and the plaintiffs had originally demanded access to users' private videos, our search technology, and our video identification technology. Our lawyers strongly opposed each of those demands and the court sided with us.

We'll keep you informed of any important developments in this lawsuit. We remain committed to protecting your privacy and we'll continue to fight for your right to share and broadcast your work on YouTube. "

As with all these things the devil will be in the detail. The key provision in the agreement is:

"1. Substituted Values: When producing data from the Logging Database
pursuant to the Order, Defendants shall substitute values while preserving uniqueness for
entries in the following fields: User ID, IP Address and Visitor ID. The parties shall
agree as promptly as feasible on a specific protocol to govern this substitution whereby
each unique value contained in these fields shall be assigned a correlative unique
substituted value, and preexisting interdependencies shall be retained in the version of the
data produced. Defendants shall promptly (no later than 7 business days after execution
of this Stipulation) provide a proposed protocol for this substitution. Defendants agree to
reasonably consult with Plaintiffs’ consultant if necessary to reach agreement on the
protocol."

And the key wording in that provision is "each unique value contained in these fields shall be assigned a correlative unique substituted value, and preexisting interdependencies shall be retained in the version of the data produced" i.e. they can work back to identifying people at a later date when the dust has settled on the negative publicity. Google are also going to have to be very careful with the protocol they use for amending the entries.

The upshot is that the data will not be truly anonymised but Viacom and Google will probably each claw back some points in the PR stakes (for effort), Viacom in particular having been caught off guard by the negative public reaction to their courtroom success.

Viacom's page on the litigation is here.

Republicans and Democrats want national surveillance state

Jack Balkan sees the US Congress's recent passing of the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008" (the act granting telcos immunity for facilitating the Bush administration's mass illegal wiretapping) as another step in a worrying trend whereby the Republicans and Democrats are systematically turning the US into a surveillance society.

"Sandy Levinson and I have noted previously that we are in the midst of the creation of a National Surveillance State, which is the logical successor to the National Security State. And we have noted that, like the National Security State before it, the construction of this new form of governance will be a joint effort by the two major parties... both major political parties are committed to the build up of surveillance programs and technologies for purposes of security and the delivery of government services. We are going to get some form of National Surveillance State. The only question is what kind of state we will get. As of right now, it looks like we will get one that is far less protective of civil liberties than we could have gotten...

Indeed, the fact that Congress is now giving the President the authority to do much of what he was probably doing (illegally) before suggests that Bush's illegal program has to a large degree been ratified by Congress... It is true as a formal matter that Congress has not officially approved of what Bush has done, and it has granted immunity only to the telecom companies, and not to those Administration officials who, in effect, conspired to violate FISA. But at this point I am doubtful that the next Administration will try to prosecute former officials for violating FISA, especially now that Congress has effectively blessed the formerly illegal programs. If this is not a ratification in form, it is surely one in substance."

Dan Solove agrees.

"I've been particularly dismayed at the Democrats' strategy in dealing with the FISA Amendments. Why bother to try to negotiate a FISA compromise with a presidential administration that has shown nothing but contempt for the law to begin with? The Bush Administration, instead of going to Congress and requesting a change in the FISA, went ahead and blatantly violated that law. And the Administration said it would continue to violate the law, so what's the pressing need to fix the FISA, especially when negotiating with an Administration that only will meet you about 2% of the way? Why force Obama to make a difficult choice about voting on the law, risking either looking weak on security or like a sell-out? Why not wait a few months and then pass a law with a new administration, one that will hopefully be easier to negotiate with? And how is this law any more binding on a president who says he has the right to violate a law based on his Article II powers?

Future presidents can learn a lot from all this -- do exactly what the Bush Administration did! If the law holds you back, don't first go to Congress and try to work something out. Secretly violate that law, and then when you get caught, staunchly demand that Congress change the law to your liking and then immunize any company that might have illegally cooperated with you. That's the lesson. You spit in Congress's face, and they'll give you what you want."

WALL-E to be a copyright criminal in Canada?

This is quite amusing. The animated hero of one of Hollywood's children's summer blockbusters would be a copyright-infringing criminal under Canada's proposed new copyright law, Bill C061.

Sulston and Stiglitz on the dangers of unbalanced IP

John Sulston and Joseph Stiglitz recently shared a platform at the launch of Manchester University’s new Institute for Science, Ethics and Innovation and both warned of the dangers of unbalanced intellectual property laws and practices. From IP Watch:

"The basic framework of the intellectual property (IP) regime aims to “close down access to knowledge” rather than allowing its dissemination, Professor Joseph Stiglitz said at a 5 July lecture on “Who Owns Science?” Stiglitz, a 2001 Nobel Laureate in Economics, and Professor John Sulston, a 2002 Nobel Laureate in Physiology/Medicine, launched Manchester University’s new Institute for Science, Ethics and Innovation.

Both were highly critical of today’s patent system, saying it stifles science and innovation.

IP is often compared to physical property rights but knowledge is fundamentally different, Stiglitz said. It is a public good with two attributes - “non-rivalrous competition” and non-excludability - meaning it is difficult to prevent others from enjoying its benefits. That runs counter to IP regimes, which are worse than exclusion because they create monopoly power over knowledge that is often abused, he said...

Sulston said science can be driven by need and curiosity, which requires a substantial degree of openness and trust among players. Increasingly, however, the picture is one of private ownership of science and innovation, a situation welcomed by governments and investors who control the direction of research, he said. But the consequence is to funnel science into profitable areas and steer clear of those that will not make money, he said.

That trend has several consequences, including the neglect of research on diseases of the poor and the production of unnecessary drugs sold through high-pressure marketing, Sulston said...

Reversing the trend toward privatisation of science is critical, Sulston said. The world should concentrate on the survival and thriving of humanity, and exploration of the universe, he said. The outcome, he added, depends to a great extent on “who owns science.”"

ICO Data Sharing Review Report

The Data Sharing Review report by the Information Commissioner, Richard Thomas and Mark Walport, the Director of the Wellcome Trust is now available from the Justice Department.

"

Final report

The review's final report concludes that:

• there is a lack of transparency and accountability in the way organisations deal with personal information
• there is confusion surrounding the Data Protection Act, particularly the way it interacts with other strands of law
• greater use could be made of the ability to share personal data safely, particularly in the field of research and statistical analysis
• the Information Commissioner needs more effective powers, and the resources to allow him to use them properly.

Recommendations

The report makes a series of recommendations, aimed at transforming the personal and organisational culture of those who collect, manage and share information:

• to improve leadership, accountability and training within organisations
• to ensure all organisations are as transparent and open as possible about how and with whom data are shared, with what authority, for what purposes and with what protections and safeguards
• to clarify and simplify the legal framework governing data sharing, including provisions to guarantee better and more authoritative guidance for practitioners
• to introduce a new statutory procedure to remove unnecessary legal barriers, whilst maintaining robust privacy protections
• to enhance the role of the Information Commissioner's Officer, providing more robust and properly-resourced powers
• to develop mechanisms that will enable population-based research and statistical analysis for public benefit, whilst safeguarding the privacy of individuals
• to help safeguard and protect personal information held in publicly available sources.

You can obtain a hard copy of the report by contacting the review team.

• Data Sharing Review report [PDF 0.48mb, 80 pages]
• Data Sharing Review report - annexes [PDF 0.59mb, 112 pages]
• Submissions"

Patent law US style

Amusing short video about how patent law works in the US:

Vendor misinformation in the e-voting world

Dan Wallach has been testifying before the Texas House Committee on Elections. He explains his disappointment with the process at Freedom to Tinker.

Patry on Fair Use

William Patry has a must read post on fair use for IP geeks, in connection with the criticism by the head of the Copyright Alliance of the release of a code of best practices for online video from a very prestigious group of scholars.

Data Breach Caused by File Sharing

Thanks to Michael Geist for the pointer to this story from the Washington Post: Justice Breyer Is Among Victims in Data Breach Caused by File Sharing

"Sometime late last year, an employee of a McLean investment firm decided to trade some music, or maybe a movie, with like-minded users of the online file-sharing network LimeWire while using a company computer. In doing so, he inadvertently opened the private files of his firm, Wagner Resource Group, to the public.

That exposed the names, dates of birth and Social Security numbers of about 2,000 of the firm's clients, including a number of high-powered lawyers and Supreme Court Justice Stephen G. Breyer."

And this: Dutch chipmaker sues to silence security researchers

"Dutch chipmaker NXP Semiconductors has sued a university in The Netherlands to block publication of research that details security flaws in NXP's Mifare Classic wireless smart cards, which are used in transit and building entry systems around the world."

Senate give telcos immunity for mass wiretapping

Well the US Senate has followed the House's lead in passing a law to give retrospective immunity to all the telecommunications companies which actively took part in the Bush administration's mass unconstitutional wiretapping.

"The Senate approved and sent to the White House a bill overhauling controversial rules on secret government eavesdropping today, bowing to President Bush's demand to protect telecommunications companies from lawsuits complaining they helped the U.S. spy on Americans...

The long fight on Capitol Hill centered on one main question: whether to shield from civil lawsuits any telecommunications companies that helped the government eavesdrop on American phone and computer lines without the permission or knowledge of a secret court created by the Foreign Intelligence Surveillance Act.

The White House had threatened to veto the bill unless it immunized companies such as AT&T Inc. and Verizon Communications Inc. from wiretapping lawsuits. About 40 such lawsuits have been filed, and all are pending before a single U.S. District court...

Just under a third of the Senate, including Democratic presidential candidate Barack Obama, supported an amendment that would have stripped immunity from the bill. They were defeated on a 66-32 vote. Republican rival John McCain did not attend the vote.

Obama ended up voting for the final bill"

Update: Larry Lessig has now shared his views on Obama's change of tack on the telcos immunity. Actually he shared his view that it was "swiftboating" a few days ago not too long after I was wondering what his thoughts on the matter were.

EU study on counterfeiting and piracy

The EU Parliament recently published an interesting study, The Fight Against Counterfeiting and Piracy in the Bilateral Trade Agreements of the EU.

Yes I realise it is unlikely to appeal to anyone outside IP geekdom and not likely to endanger J.K Rowling's place in the bestseller lists but it does make some really sensible recommendations. Here's the Executive Summary:

"Concerns about counterfeiting and piracy are becoming increasingly
widespread and have now taken on an international dimension. Higher
standards of intellectual property protection are being set multilaterally and
through the inclusion of intellectual property provisions in bilateral trade
agreements. The EU Strategy for the Enforcement of Intellectual Property
Rights in Third Countries has undertaken to revisit the approach to the
intellectual property rights chapter of bilateral agreements, including the
clarification and strengthening of the enforcement clauses. This approach
should be reconsidered in the light of on-going negotiations on bilateral trade
agreements with a number of trading partners such as Korea, India, and
ASEAN, while negotiations on bilateral trade with Ukraine and Russia are also
being considered. If the Lisbon Treaty on the Functioning of the European
Union (TFEU) comes into force, the European Parliament will have a
significantly enhanced role to play in the negotiation of such agreements,
including the power of veto. In scrutinising and giving consent to agreements,
it is recommended that the European Parliament takes account of the
following: (1) if intellectual property enforcement provisions are to be included
in agreements, this must be done on the basis of adequate evidence on the
level of counterfeiting and piracy and its effects; (2) intellectual property rights
are private rights and the main responsibility for taking measures to protect
and enforce intellectual property rights should lie with individual right holders;
(3) the European Parliament should consider carefully the need to balance
flexibilities in the TRIPS Agreement with the need for additional provisions in
bilateral agreements to fight counterfeiting and piracy; (4) agreements that
contain provisions on recourse to bilateral dispute settlement mechanisms risk
weakening the multilateral dispute settlement system; (5) provisions in
agreements that expand the scope of border measures to cover exports as
well as goods in transit or transhipment should not be unnecessarily
burdensome and should be subject to the availability of judicial review; (6) the
European Parliament should encourage the EU to undertake needs
assessments in third countries to ensure that adequate and appropriate
technical and financial cooperation is made available on mutually agreed
terms and conditions in order to assist with the training of police, customs
officers, judiciary and other government officials; (7) it would be advantageous
to establish a parliamentary forum or an inter-parliamentary observatory to
monitor and assess the impact of bilateral agreements in the fight against
counterfeiting and piracy."

Well done to Dr. Duncan Matthews at Queen Mary College who produced the study for the Policy Department of the Directorate-General for External Policies of the Union. I wonder how many people know there is such a thing as the Policy Department of the Directorate-General for External Policies of the Union?

Patenting indigenous plants

On hearing I had an interest in intellectual property recently, a South American friend told me I should look up the story of the trade dispute over a 1986 US patent in an Amazonian plant called ayahuasca. The plant is considered to be a sacred source of food and medicine by many of the indigenous peoples in the Amazon basin. Here is an outline of the story from the Biopark website:

"Ayahuasca is a traditional medicine central to the lives of indigenous peoples throughout the Amazon river basin. Almost a decade ago, Loren Miller of the International Plant Medicine Corporation applied to the US government to be recognized as the "inventor" of ayahuasca. Although ayahuasca has been produced and used by Amazonian peoples since time immemorial, the US Patent and Trademark Office agreed to grant Miller a patent, a form of intellectual property that conveys exclusive rights to produce and trade the patented item, at least within the country where the patent is granted.

Currently, the patent on ayahuasca applies only to a few western countries, including the U.S.. However, when Amazonian peoples first learned about the patent in the summer of 1996, the Ecuadorian government was considering entering into a trade agreement with the U.S. that would have led to patents granted in the US being extended to Ecuador. Although popular organizing by indigenous peoples and environmentalists temporarily defeated that trade deal, the threat remains that some day the patent on ayahuasca may be recognized and enforced in the Amazon, leading to restrictions on indigenous peoples' use of their sacred plant.

And regardless of whether or not this threat ever turns into reality, granting a foreign corporation intellectual property rights over ayahuasca represents a direct denial of indigenous peoples' rights over their own knowledge and innovation. As stated by COICA, the coordinating body for indigenous peoples' organizations in the Amazon region, "ayahuasca is a fundamental ingredient of the religious ceremonies and of healing for our people, and this patent is a real affront to the over four hundred cultures that populate the Amazon Basin.""

Eventually the US Patent and Trademark Office overturned the patent in 1999 on the basis of prior art. For the academically inclined some further information on the story can be found in Fecteau, L.M. (2001). The ayahuasca patent revocation: Raising questions about current US patent policy. Boston College Third World Law Journal. 69, 74-75.

I believe the patent was reinstated in 2001 following an appeal by the patent holder. I assume it lapsed in 2006? But if anyone knows better do let me know.

Fact checking Viacom's PR on YouTube order

Pamela Jones at Groklaw has been fact checking Viacom's back-peddling PR after the negative reaction to the company following a New York judge's order last week that Google hand over the IP addresses of all YouTube users.

" Viacom has a statement on its site now about the YouTube litigation it probably hopes will reassure you. Leaving out the anti-Google trash talk, it reads like this:

A recent discovery order by the Federal Court hearing the case of Viacom v. YouTube has triggered concern about what information will be disclosed by Google and YouTube and how it will be used. Viacom has not asked for and will not be obtaining any personally identifiable information of any YouTube user. The personally identifiable information that YouTube collects from its users will be stripped from the data before it is transferred to Viacom. Viacom will use the data exclusively for the purpose of proving our case against You Tube and Google.

Viacom has been in discussions with Google to develop a framework to share this data. We are committed to a process that will not only comply with the Court’s confidentiality order, but that will also meet our commitment to the strongest possible internet privacy protections.

That's some progress, if it's true, the part about Google redacting it first. But what's that part about Viacom didn't ask for it? They say the same thing on their homepage, where you can see this questionably true statement:

Viacom has not requested any personally identifiable information from YouTube as part of the litigation.

Say what? I think it would be more truthful to say that they *did too* ask for it, Google asked them to let them redact, Viacom saw the public's reaction, and so it agreed. I gather Viacom has noticed that a lot of consumers, as they view us human beings, seriously hate Viacom's guts because of this over-the-top litigation.

Viacom may think they can say whatever they wish about what they asked for, since the details of their motion to compel were filed in a sealed memorandum. But we're not stupid, and we can read the Order, where the judge tells us what Viacom asked for...

I think they meant to say, we asked for everything we could think of, and now we're sorry we did it, because you hate us now."

I'm not going to dissect the order regarding what Viacom did or didn't ask for since Ms Jones does that very nicely. I will remind you what the judge ordered, however:

"(3) The motion to compel production of all removed videos is granted;
(4) The motion to compel production of all data from the Logging database concerning each time a YouTube video has been viewed on the YouTube website or through embedding on a third-party website is granted...
(7) The motion to compel production of the schema for the Google Video Content database is
granted; "

There is quite a lot of material in YouTube video content that constitutes 'personally identifiable information', including a proportion of those videos that were removed from YouTube that Google now has to hand over to Viacom.

In addition there is quite a lot of 'personally identifiable information' in the collection of 'all data from the Logging database concerning each time a YouTube video has been viewed on the YouTube website or through embedding on a third-party website' that Google has also been ordered to hand over to Viacom.

It is a bit of a stretch to ask us to believe that "Viacom has not requested any personally identifiable information from YouTube as part of the litigation" and that the judge just spontaneously decided that such information should be extracted from Google and passed to Viacom for no reason. Fortunately we can look at the evidence and deduce that the Viacom PR merchants are being economical with the truth. Sadly even the most compelling evidence of falsehood is often not enough to convince people about what has happened. The temporary negative reaction to Viacom will pass and the Google order will be forgotten, since these things are too ethereal for our world of short attention spans to pay attention to for very long.

Thanks to Glyn via the ORG list for the pointer.

Justice can't be done in secret

I recommend Damiel Finkelstein's article in the Times today, Justice can't be done in secret. And here's why

"This week in times2, my colleague Camilla Cavendish has been telling some terrible stories of children taken from their parents without good reason and adopted against their will, never to be returned. And all in secret. Not a word to be published...the secrecy is a scandal.

On April 19, 1989, a young woman jogging in Central Park, New York, was attacked. That understates it. She was brutally beaten and raped...

About ten years after being sentenced for his part... Kharey Wise met a man in prison, another New York rapist, called Matias Reyes. And the more Reyes got to think about it the sorrier he felt for his new friend. For Reyes knew something that the police and the courts did not... The confessions were coerced, as the young men had claimed for years. How did he know it? Because he, Matias Reyes, had really raped and beaten the Central Park Jogger... he moment that Reyes confessed, it was clear that he was indeed guilty. His DNA was linked to the rape...

Yet the prosecution lawyer in the original case refused to accept this. She was furious. She stridently opposed the finding of the DA. So did the New York Police Department. They convened a panel that concluded that the police had done nothing wrong...

It is commonly thought that we have theories and that they are tested by the facts. The opposite is true. We have theories and then we strive mightily to fit the facts into them, ignoring those that don't quite work or reinterpreting them if we have to. The more we have at stake emotionally, the more pressing this task becomes."

I'm sure few people understand this as well as Shirley McKie and her family. As Michael Russell says:

"There can now be no doubt at all that the evidence offered against Shirley by the authorities at the time of her trial was false. There were no possible grounds for believing that the fingerprint at the crime scene was hers. That has been attested to by finger print experts from across the world...

Over recent months and years both Shirley’s father, Iain, and myself have written on many occasions to the Lord Advocate (Scotland’s Chief Prosecutor) and to the Scottish Justice Minister . We both became increasingly frustrated at the total lack of response to our enquiries.

Throughout this case, it has become obvious that political pressure coupled with media attention, are the most effective weapons when democratic institutions become arrogant or defensive.

I am still concerned that the oppressive and unjustified police behaviour against Shirley at the time of her arrest and subsequently has not yet been explained, still less apologised for. Responses to me from Strathclyde Police have been evasive and unsatisfactory.

There is also little sign that the question of possible perjury by witnesses at the trial is being seriously addressed. Nor is there any official willingness to acknowledge that Ms McKie suffered unjust treatment at the hands of the Scottish Criminal Records Office. Without an apology there can be no real acknowledgement of what has actually happened, nor any real possibility of moving forward.

In addition there must be substantial concern, given what has discovered over the past months and years, that there may be other cases in which SCRO has dealt with tainted evidence."

Shirley's father, Iain, was tremendously helpful when I wanted to include her story in my book as a seminal example of how badly things can go wrong when experts make mistakes and the system, within which those experts operate, closes ranks and refuses to acknowledge and make recompense for them, in spite of overwhelming evidence.

Essentially, then, it can be incredibly difficult to get through to people who don't want to know and the resultant consequences are often appalling.

42 days

I have refrained from commenting on the 42 day detention without charge period that the UK House of Commons voted for on 11th June, 2008.

The Independent reports that members of the House of Lords are starting an attack on the
measure today. In addition Liberty have launched a 'say no to 42 days' charge or release campaign.

Of all the news commentary, political excuses etc. I've been through on this, one of the best remains a simple message to the ORG list from a Martin Coxhall the day after our political representatives made such a reprehensible decision:

"Canada - 24 hours
South Africa, New Zealand and Germany - 2 days
Denmark and Norway - 3 days
Italy - 4 days
Russia and Spain - 5 days
France - 6 days
Ireland - 7 days
Turkey - 7.5 days
Australia - 12 days.
USA - 2 days

And...

UK - 42 days."

It is the 60th anniversary of the signing of the Universal Declaration of Human Rights(UDHR) on 10th December this year. It's hard to imagine the contempt that Eleanor Roosevelt - who lead the UDHR drafting commission and as a direct result of that work became one of the few people in history to receive a standing ovation from the UN General Assembly - would feel for modern politicians on both sides of the pond (the US 2-day pre-charge detention period doesn't apply to Guantanamo Bay) and the damage they have done to civil rights worldwide.

Update: The former head of MI5, Baroness Manningham-Buller has, much to the disgust of government ministers, used her maiden speech in the House of Lords to oppose the 42 day detention without charge period. She said (scroll down to 'column 647'):

"On a matter of principle, I cannot support 42 days’ precharge detention. I don’t see on a practical basis, as well as a principled one, that these proposals are in any way workable."

MEPs back telecoms package with 3 strikes amendment

The BBC is reporting that MEPs have voted in favour of the telecoms package with the 800 amendments relating to everything from online privacy invasion to lack of due process banning people from the internet for suspected copyright infringement.

You'll recall that the IMCO (Committee on Internal Market and Consumer Protection) and the ITRE (Committee on Industry, Research and Energy) were considering the package yesterday. There are no direct details from either of these committees yet to see what exactly was discussed or agreed.

UK Conservative MEP Malcolm Harbour has been rolled out to explain how dismayed the MEPs are at the misunderstanding of their intentions. He made a heartfelt plea to be seen to be working towards protecting and improving internet users rights and claimed that this was what the telecoms package was really about.

The IMCO committee is chaired by UK Labour MEP Arlene McCarthy. Now why am I putting those two names together in the recesses of my mind with an IP expansionist agenda? Well it could be because Harbour and McCarthy were a couple of the prime movers, along with rapporteur Janelly Fourtou (wife of Jean-Rene Fourtou, CEO of Vivendi Universal), behind fast tracking the intellectual property rights enforcement directive in 2004? Isn't that nice - Labour and Conservative working in harmony.

They failed at the time to get the absolute worst excesses of the original draft of that directive through - which would have included provisions to jail teenagers (and the managers of the ISPs they used) for swapping songs on the Net - but they are working hard on getting these included in the second IPR enforcement directive, coming to the EU and a member state near you very soon.

McCarthy incidentally was the rapporteur who drove the software patents directive to the edge of implementation too. Software patent anoraks will recall that there were several attempts to slip that one through the agriculture and fisheries committee without discussion.

I presume, therefore, I can be forgiven for not accepting at face value statements from Mr Harbour that he's really looking out for the interests of ordinary Internet users when he supports complex legislative monsters like the telecoms package and its inherent regulatory timebombs. He may even be sincere in that belief but he needs to realise that the interests of agents (commerce), creators and the public are not exactly aligned or coincident though they do sometimes overlap.

Update: Lilian at least is feeling cheered by Mr Harbour's assurances.

Code of Best Practices in Fair Use for Online Video

After the Google v Viacom decision last week, here's a timely release of a code of best practices for online video from a very prestigious group of scholars, via the Center for Social Media.

"Remixes, mashups, fan tributes and other creative work burgeoning in online video often use copyrighted material without permission or payment. When is it fair to do so? In many cases, creators can employ fair use, a key feature of copyright law. Today marks the release of the Center’s newest publication, the Code of Best Practices in Fair Use for Online Video. Our latest effort in promoting fair use practices among media makers, the code focuses on the still-evolving world of online video, and will help to protect creators from automatic censorship that results from copyright filtering.

The Code of Best Practices in Fair Use for Online Video was written collaboratively with a committee of legal and media scholars, and was coordinated by Pat Aufderheide and Peter Jaszi of American University. Our acclaimed committee of writers includes:

• Michael C. Donaldson, Esq., Los Angeles
• Anthony Falzone, lecturer, executive director, Fair Use Project, Stanford Law School
• Lewis Hyde, Richard L. Thomas Professor of Creative Writing, Kenyon College; fellow, Berkman Center for Internet and Society, Harvard University
• Mizuko Ito, research scientist, School of Cinematic Arts, University of Southern California
• Henry Jenkins, professor, program head, comparative media studies, Massachusetts Institute of Technology
• Michael Madison, associate dean for research, associate professor of law, University of Pittsburgh School of Law
• Pamela Samuelson, Richard M. Sherman Distinguished Professor of Law and Information, University of California, Berkeley
• Rebecca Tushnet, professor, Georgetown University Law Center, Georgetown University
• Jennifer Urban, clinical associate professor of law; director of Intellectual Property and Technology Law Clinic, University of Southern California

The goals of the code are to clearly establish what constitutes fair use in online video, and to reach out to creators and copyright holders alike to create a common awareness of what kind of quoting is legal and illegal. This can only be accomplished through participation — by spreading the word to your users, you can help to protect this emerging culture."

Naughton on Zittrain

John has done a terrific review of Jonathan Zittrain's new book, The Future of the Internet and How to Stop It, at Management Today.

"Life without this digital ecosystem is now unthinkable - as Estonia discovered when it underwent a savage cyber-attack a year ago. And yet the very features that have made the internet such a creative force in our societies now threaten its future - as citizens, governments and corporations, exasperated or terrified by online mayhem, combine to 'lock down' and regulate the network. Such a future - if it came about - would implement an Orwellian nightmare of comprehensive surveillance and perfect enforcement. It might also strangle the technological goose that has laid so many golden eggs. And it will happen, unless we take avoiding action...

Zittrain's great insight is that the combination of the personal computer and the open internet created what he calls a 'generative system'. He defines generativity as 'a system's capacity to produce unanticipated social change through unfiltered contributions from broad and varied audiences'. In other words, an endless capacity for springing surprises...

The beauty of The Future of the Internet is that it's an ideal primer for the debate that we now need to have about all this."

Europe votes on anti-piracy laws

The BBC has picked up on the EU telecoms package vote which treatens to incorporate 3 strikes copyright rules by the back door.

Corruption of the EU policymaking process?

Given that the telecoms framework legislative package, with its secret 3 strikes copyright amendments, is being considered by two important EU committes today (the IMCO (Committee on Internal Market and Consumer Protection) and ITRE (Committee on Industry, Research and Energy) committees for the EU anoraks amongst you), it is perhaps unsurprising that Phillipe Aigrain takes the opportunity to rail against what he perceives to be corruption of the policymaking process in the EU. Monsieur Aigrain dedicates the post to Larry Lessig and his change Congress initiative.

A new business model for the music industry

Bennett Lincoff has a really interesting article at IP Watch suggesting a new business model for the music industry.

Highly recommended and it should be read in conjunction with Fred Von Lohmann's A Better Way Forward: Voluntary Collective Licensing of Music File Sharing.

3 strikes amendments to EU telecoms proposals

Thanks also ORG for an update on the music industry's lobbying efforts to encourage the introduction of a 3 strikes law at European level, via last minute amendments to proposed telecoms legislation.

"Over in France, President Nicolas Sarkozy (who also took over the European presidency yesterday) has put his weight behind legislation proposed by the Olivennes report. The bill, which has been delayed until the Autumn, will mandate termination of internet connections. It goes without saying that it is the subject of much controversy across the Channel.

La Quadrature du Net - a French pressure group - have been actively campaigning on the issue. They’re also tracking the progress of the Telecoms Package, a review of European telecoms law currently in the European Parliament. Ordinarily this bill would deal with network infrastructure, universal service and other purely telecoms matters.

But as La Quadrature du Net announced yesterday:

“One week before a key vote in the reform of European law on electronic communications (”Telecom Package”), La Quadrature du Net (Squaring the Net) denounces a series of amendments aimed at closing the open architecture of the Internet for more control and surveillance of users..

…this set of amendments creates the unprecedented mechanism known as graduated response in European law; judicial authority and law courts are vacated in favour of private actors and “technical measures” of surveillance and filtering. According to rules set forth by administrative authorities and rights holders, intermediaries will be forced to cooperate in monitoring and filtering their subscribers, or they will be exposed to administrative sanctions”

If you want to voice your concerns about 3 strikes legislation brought in through the backdoor in Brussels, you have until 7 July, the date of the vote in IMCO and ITRE committees, to contact your MEP and inform them that the “Telecoms Package” amendments could bring in disproportionate and ineffective law.

You can find details of your MEPs here. Suggestions for topics to raise in your letters are here and analysis and commented amendments with other resources about the Telecoms Package are also available."

Lilian Edwards has pointed out in great detail why a 3 strikes approach to tackling copyright infringement on the Net is inappropriate from all kinds of legal perspectives, so I won't repeat her lessons here. This is just the latest example of how the EU can be used and abused as a policy laundering mechanism for proposals which have been categorically rejected at member state level. It's also the kind of thing which simultaneously undermines the ideals of the EU and the sovereignty of member states and I guess reinforces the wisdom of my fellow countrymen and women in the recent referendum on the Lisbon treaty.

Update: If you'd like the whole story in one gulp, a relatively large gulp, then there's nothing to beat Lilian's latest blog post on the subject. Essential reading. And btw the vote on the complex telecoms legislation, which will mandate a 3 strikes rule across the EU as one of many major side effects, is tomorrow, Monday 7th July.

Judge orders Google to hand over IP addresses of all YouTube users

A New York judge this week has ordered Google to hand over the IP addresses of all YouTube users to Viacom. In a 25 page ruling with good and bad news for both Google and Viacom, the judge concluded:

"(1) The cross-motion for a protective order
barring disclosure of the source code for the
YouTube.com search function is granted, and the
motion to compel production of that search code is
denied;
(2) The motion to compel production of the
source code for the Video ID program is denied;
(3) The motion to compel production of all
removed videos is granted;
(4) The motion to compel production of all data
from the Logging database concerning each time a
YouTube video has been viewed on the YouTube website
or through embedding on a third-party website is
granted;
(5) The motion to compel production of those
data fields which defendants have agreed t o produce
for works-in-suit, for all videos that have been posted
to the YouTube website is denied;
(6) The motion t o compel production of the
schema for the Google Advertising database is
denied ;
(7) The motion to compel production of the
schema for the Google Video Content database is
granted; and
(8) The motion to compel production of the
private videos and data related to them is denied at
this time except to the extent it seeks production
of specified non-content data about such videos ."

The EFF are appalled at the ruling, particularly item (4) and are claiming it:

"erroneously ignores the protections of the federal Video Privacy Protection Act (VPPA), and threatens to expose deeply private information about what videos are watched by YouTube users. The VPPA passed after a newspaper disclosed Supreme Court nominee Robert Bork's video rental records. As Congress recognized, your selection of videos to watch is deeply personal and deserves the strongest protection...

The VPPA protects “personally identifiable information,” which is defined to include “information which identifies a person as having requested or obtained specific video materials or services.” This is exactly what is in the Logging database.

Accordingly, pursuant to this federal law, the Court may not order the production of “personally identifiable information”:

in a civil proceeding [except] upon a showing of compelling need for the information that cannot be accommodated by any other means, if—

(i) the consumer is given reasonable notice, by the person seeking the disclosure, of the court proceeding relevant to the issuance of the court order; and
(ii) the consumer is afforded the opportunity to appear and contest the claim of the person seeking the disclosure.

Today’s court order made no finding that Viacom could not be accommodated by any other means, nor were the YouTube users provided with notice and an opportunity to contest the claim...

In any event, the court ordered production of not just IP addresses, but also all the associated information in the Logging database. Whatever might be said about 'an IP address without additional information,' the the AOL search history leak fiasco shows that the material viewed by a user alone can be sufficient to identify the user, even with neither a login nor an IP address.

The Court's erroneous ruling is a set-back to privacy rights, and will allow Viacom to see what you are watching on YouTube. We urge Viacom to back off this overbroad request and Google to take all steps necessary to challenge this order and protect the rights of its users."

Thanks to Glyn at ORG for the alert via the Wired blog.

Update: The Lib Dems have noticed the judgment and expressed concern.

University asserts downloading texts is fair use

Here's an interesting case - Georgia State University are actually rolling out the lawyers to assert that its online distribution of course material is permitted under copyright law's fair-use exemption.

The argument is in response to a copyright infringement lawsuit brought by Oxford University Press, Cambridge University Press and Sage Publications.

"The outcome of the lawsuit could have consequences for how colleges throughout the country distribute course material online. Publishers and colleges have been tussling for years about whether and under what circumstances colleges can make publishers' electronic material available to students."

ORG report on London elections published

ORG's report on the May 2008 elections in London has just been published. (Thanks for the alert, Glyn). It comes at a timely moment for me, since I'm scheduled to draft a case study on evoting at some stage in the next few weeks, for a forthcoming Open University course on ICT. I'm also hoping to get together the main framework of a response to the government's consultation, nominally on choice of election day. But buried deep within said consultation are apparently throw away questions on evoting:

"Question 4 Do you think that greater access to remote voting (whether through traditional postal voting or by electronic means) should be made available alongside weekend voting? Should such arrangements be explored even if polling day were not moved to the weekend? Please explain why.

Question 5 What do you perceive to be the benefits and the drawbacks of remote e-voting?"

The ORG report on London is a clinical indictment of the reality of using evoting in a live election, even when the project managers of that election do a commendable job within the constraints that they are operating to, and it concludes that:

"There is insufficient evidence available to let independent observers reliably state whether the results declared in the May 2008 elections for the Mayor of London and the London Assembly are an accurate representation of voters‘ intentions."

The good folks at ORG also make a number of recommendations:

"Recommendations

ORG‘s position is that e-counting obscures the workings of elections from voters and candidates. Mitigating this risk in order to sufficiently enhance the transparency of e-counts could well be more expensive than sticking with manual methods. ORG has received comments that suggest that e-counting is inevitable and that opposing these technologies is a Luddite view. ORG disagrees, and considers it telling that a significant proportion of those concerned about voting and counting technologies are computer scientists and professionals, who are normally the most enthusiastic adopters of new technology.

The political climate is still in the shadows of the chaotic May 2007 e-count in Scotland, and the electoral timetable is likely to preclude the deployment of computers in elections for the next two years. For the moment, therefore, ORG recognises that elections administrators may be turning away from experimenting with e-counting technologies in statutory elections. However, ORG suspects that in two years' time these deterrents may have faded and legislators may feel eager to experiment with e-counting again. ORG therefore makes the following recommendations for improved practice in e-counting below, and refers any legislators tempted to reopen the Pandora‘s box of e-voting to the conclusions and recommendations of ORG‘s May 2007 elections report.

Recommendation 1: A full cost-benefit analysis of electronic counting at the London elections in May 2008 should be performed by London Elects. The analysis should be set against a properly-costed manual count of similar scope. London Elects should also cost the following recommended enhancements to the electronic count, including:
o A statistically significant live manual audit on count day, or some other effective means, accessible to the layperson, of monitoring votes that are counted as valid
o A comprehensive, independent audit of all source code deployed on e-counting systems, made publicly available before the elections
o Improved record-keeping facilities at the ballot box verification stage
o Improved transparency around the contractor‘s service management desk
o System-designed assurance that the voter‘s paper ballot remains the ballot of record so that, for example, paper ballots can easily be retrieved by CROs wishing to ascertain the intention of a voter where this is not clear from the scanned image of a ballot.

Recommendation 2: Time should be given for formal consultation — at national and local levels — prior to the approval of e-counting being used in an election.

Recommendation 3: Administrators should remain committed to long lead-in times for procurement and implementation of election technology. Based on the experience of London Elects, ORG revises this figure upwards from one year (as recommended in ORG‘s May 2007 report) to 18 months as a suitable application and implementation timetable."