More Apple lawsuits coming to a courtroom near you?

Apple has been awarded a 20 part patent, (US patent number 7,479,949) on the iPhone's touchscreen functionality, or to give it its proper title:

"Touch screen device, method, and graphical user interface for determining commands by applying heuristics

Abstract

A computer-implemented method for use in conjunction with a computing device with a touch screen display comprises: detecting one or more finger contacts with the touch screen display, applying one or more heuristics to the one or more finger contacts to determine a command for the device, and processing the command. The one or more heuristics comprise: a heuristic for determining that the one or more finger contacts correspond to a one-dimensional vertical screen scrolling command, a heuristic for determining that the one or more finger contacts correspond to a two-dimensional screen translation command, and a heuristic for determining that the one or more finger contacts correspond to a command to transition from displaying a respective item in a set of items to displaying a next item in the set of items."

The "inventors" are

"Jobs; Steven P. (Palo Alto, CA), Forstall; Scott (Mountain View, CA), Christie; Greg (San Jose, CA), Lemay; Stephen O. (San Francisco, CA), Herz; Scott (San Jose, CA), van Os; Marcel (San Francisco, CA), Ording; Bas (San Francisco, CA), Novick; Gregory (Santa Clara, CA), Westerman; Wayne C. (San Francisco, CA), Chaudhri; Imran (San Francisco, CA), Coffman; Patrick Lee (Menlo Park, CA), Kocienda; Kenneth (Sunnyvale, CA), Ganatra; Nitin K. (San Jose, CA), Anzures; Freddy Allen (San Francisco, CA), Wyld; Jeremy A. (San Jose, CA), Bush; Jeffrey (San Jose, CA), Matas; Michael (San Francisco, CA), Marcos; Paul D. (Los Altos, CA), Pisula; Charles J. (San Jose, CA), King; Virgil Scott (Mountain View, CA), Blumenberg; Chris (San Francisco, CA), Tolmasky; Francisco Ryan (Cupertino, CA), Williamson; Richard (Los Gatos, CA), Boule; Andre M. J. (Sunnyvale, CA), Lamiraux; Henri C. (San Carlos, CA)"

and the assignee company is Apple Inc. (Cupertino, CA). It covers such novel things as pinching and swiping your fingers on a touchscreen. You have to read it (ok I accept in depth reading might be the domain of legal geeks but it's worth scanning). On the 3-step patent test,

• Is it inventive? Yes.
  
• Useful? Definitely
• Not obvious to the average someone schooled in the art? That one I'm not so sure about.

It probably means we'll be seeing a few more iPhone based lawsuits on the horizon.

WTO rules for US in IP dispute with China

From the WTO: "The WTO, on 26 January 2009, issued the report of a panel that had examined United States’ complaint against “China — Measures affecting the protection and enforcement of intellectual property rights” (DS362)."

The full report is available in a variety of formats at the WTO site but IP Watch has a succinct summary of the findings."

" China has been found in violation of two of its responsibilities under international rules on trade and intellectual property, and in partial violation of one more, said a World Trade Organization panel report on the US-China dispute over copyright and customs matters released Monday. But the panel did not make a decision on some of the US claims.

The panel has recommended that China alter its copyright law and customs measures to be consistent with its obligations under the WTO Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement.

The final report finds China’s copyright law inconsistent with Article 9 of the TRIPS agreement, which incorporates the Berne Convention for the Protection of Literary and Artistic Work. The panel stated that China is inconsistent with Berne Convention Rule 5(1), which requires that foreign owners of creative works receive the same protection as domestic owners of similar material.

The panel decision also found China to be in violation of TRIPS Article 41.1, which requires members to have available laws “so as to permit effective action against any act of infringement of intellectual property rights covered by this agreement,” including remedies which “constitute a deterrent to further infringements.”"

Update: Forbes mentions the ruling was not the slam dunk victory for the US that's been widely reported. And Michael Geist says it was a major victory for China.

PI Black Zone Report on Data Sharing - Sharing the Misery

Privacy International have just published an important report, SHARING THE MISERY
The UK’s strategy to circumvent data privacy protections, on the UK government's plans to engage in mass data sharing.

"Of the hundreds of issues engaged each year by Privacy International, a small handful stand out because of the fundamental risk they pose to the foundations of privacy protection.

In January 2007, Privacy International decided to initiate the “Black Zone” report series. These reports will deal with issues that we regard as constituting an exceptional danger to privacy.

The UK government’s proposal to legislate, in its 'Coroners and Justice Bill', for wide scale sharing of personal data is one such instance, and internationally is the first occasion in recent months that we have seen an example of risk at such a fundamental level. The scale of the danger to privacy should be seen in the light of other current UK proposals, such as mass communications data surveillance and nationwide vehicle surveillance. These latter projects constitute a major threat, but do not encompass the breadth or potential corrosive effect on existing protections.

The mass exchange of personal information has the potential to deliver some benefit, however it also presents vast risks associated with governance, privacy, security and human autonomy. In the rush to institute data sharing, these aspects have largely been ignored.

Privacy International took the decision to prepare this report on the basis both of the dangers inherent in the legislative proposals and the unprecedented way in which they have been created.

The aim of this report is to bring to the attention of the public, parliament and media the urgent need to consider the extraordinary dangers created by the proposal. Previously people’s consent was required, but now the consent of the governed is not longer being sought. In fact, the Government’s proposal eradicates consent from the governing framework, thus placing not only our data at risk but also fundamental tenets of our democracy.

Conclusions

This policy has been the overarching vision of the UK Government since the late 1990s. We are surprised it has taken so long to devise a policy of this breadth and with such disregard for even the most basic safeguards. Despite continuous debates about genetic databases, health databases, and biometric databases, everything has been done to ignore debate on this policy. This can serve only to destabilise any decision made by Parliament on these other matters.

The problems with this law is as follows:

1. Based on an illegitimate consultation process over a ten-year period, created to justify whatever the Government drafted into law. Even the Information Commissioner’s Office has been compromised.
2. Avoids Parliamentary scrutiny by pushing orders through secondary legislation.
3. Consists of meaningless protections and oversight, where the ICO may provide comments to Parliament in a process where Parliament is not permitted to amend the order.

The report is available in full in PDF here."

JURI committee agenda

The EU Parliament's legal affairs committee met last week to consider copyright term extension in the midst of a packed and eclectic two day agenda. Is it really possible to give serious scrutiny to complex policy considerations, including:

• copyright term extension
• EU legal process (e.g. possible horizontal instrument on collective redress)
• parliamentary immunity in Poland
• Cooperation on evidence taking between courts in EU member states in relation to civil or commercial matters
• cross border transfers of company seats
• a review of the copyright and related rights directive of 2001, based on the report done last year by Manuel Medina Ortega
  
• a directive on auditing accounts
• public access to EU documents
• a white paper on damages in anti-trust cases
• penalties for pollution by ships
• EU citizenship
• Consultation of employees
• Cross border payments
• characteristics of tractors (I kid you not)
• motorbike registration plates (again I kid you not)
• corporate mergers
• debtors assets
• monitoring the application of EU law
• application of freedom of movement directive
• patients rights
• equal opportunities
• electronic money institutions

- in the space of two days? Of course it isn't.

I've been involved in more committees with long agendas than I care to remember both whilst working in the commercial and the education sectors. In practice the business of the committee becomes a series of wars of attrition. Parties with vested interests in parts of the agenda drive their particular interests. Sometimes a member of the committee with an interest in that area of business asks an awkward question or two. Then the proposal goes through on the nod or gets thrown out. The person with the driving interest may lose but just needs the stamina to get the proposal on the agenda again in the none too distant future. Eventually the proposal goes through because the person who asked the awkward questions isn't there the next time or sleeps through that part of the agenda or the chair refuses to allow time for discussion or it gets bundled with other supposedly related business and nodded through on the grounds of efficiency etc.

Now, dedicated though they all no doubt are, I can't see how any single member of the JURI committee let alone the collective whole could, in the space of two days, cogently review, assess, evaluate, engage in substantive discussion and come to informed conclusions and recommendations on the range of items that were on that agenda.

And by the way the latter half of the second day was given over to an "exchange of views with Jiří Pospíšil, Czech Minister of Justice, on the priorities of the Czech Presidency"; so they actually had a day and a half for the substantive business listed above.

So the copyright term extension policy and the review of the 2001 copyright directive and public access to EU documents and etc. cannot possibly have been given any kind of appropriate evaluation. Here in a nutshell, I guess, is my problem with the policy-making processes in the EU. Complex processes give the illusion of serious scrutiny of legislative proposals; whereas in practice these same processes act as rubber stamping shops for those with the stamina and the funds to repeatedly peddle their own vested interests in a constant series of wars of attrition until those vested interests get written into the statute books.

UK government rules out 3 strikes?

The intellectual property minister, David Lammy, has told the Times that the government has ruled out the the possibility of passing legislation to force ISPs to cut off customers for suspected copyright infringement. At least until the next time a member of the government goes all doe-eyed and groupiefied in the presence of some celebrity rolled out on lobbying and PR duty by the entertainment industry...

Escalating costs of journal subscriptions

Cornell University Library has a wonderful exhibit on the escalating costs of journal subscriptions.

An exhibit highlighting the rising cost of library journal subscriptions to support faculty and student research

courtesy of Resonance Research Corporation

The cost of journal subscriptions continues to rise and the prices will shock you. The Cornell Libraries subscribe to over 88,000 serials, a majority which are journals in paper or electronic form. Five years ago the most expensive engineering-related journals cost $4,000 to $12,000. Now prices reach $18,000. To get a better sense of what this much money is worth, please Enter the Exhibit This work is licensed under a Creative Commons Attribution 3.0 United States License.

Obama's Inaugural

This image is amazing. David Bergman who produced it says

"I made this Gigapan image from the north press platform during President Obama's inaugural address at the U.S. Capitol in Washington, DC on January 20, 2009. It's made up of 220 images and the final image size is 59,783 X 24,658 pixels or 1,474 megapixels."

More details at his blog.

Obama keeps his Blackberry

President Obama, it seems, will be keeping his Blackberry.

"President Barack Obama will be able to keep his beloved BlackBerry, an aide confirmed on Thursday, making him the first U.S. president to use e-mail regularly.

White House press secretary Robert Gibbs told reporters that, thanks to a "compromise," his boss will be able to keep a security-enhanced BlackBerry and use it for e-mail.

That will, Gibbs said, allow Obama to continue to keep in touch with people and avoid getting "stuck in a bubble." (The new Washington insider test: Do you know the president's secret e-mail address?)

Gibbs didn't offer details, but the contours of the compromise seem to be: official, work-related e-mail messages will be subject to the Presidential Records Act and the possibility of eventual disclosure. But strictly personal communications--with family, for instance--will be exempt."

Proportionality back on the table for EU telecoms package

Monica Horten at Westminster University reports on a proposed amendment to the telecoms package.

"An amendment to the Telecoms Package which supports the principles established in the Bono report is back on the European Parliament agenda for the Telecoms Package trialogues.

This is Article 32(a) of the Universal Services Directive ( Amendment 166 to the Harbour report). The amendment sets out the principle that any sanctions on end users, and notably any restrictions on users rights to access content, applications and services, must be proportionate to the alleged ‘offence’ (full text below). It is an important amendment, given that elsewhere in the Universal Services Directive, there is language concerning restrictions on users access to content. And as long as the 'co-operation' amendment (Article 33 (2a) or Harbour report Amendment112) remains in, which would establish in the law a process for telecoms regulators to oversee joint programmes for copyright enforcement between ISPs and rights-holders, it is an essential safeguard for users' rights...

The wording parallels that of the Fjellner-Rocard amendment to the Bono report in April last year, which established the European Parliament’s position against graduated response, and specifically against termination of internet access as a sanction.


Amendment 166
Proposal for a directive – amending actArticle 1 - point 19 b (new)Directive 2002/22/ECArticle 32 a (new)
19b) The following Article 32a shall be added:
"Article 32a
Access to content, services and applications
Member States shall ensure that any restrictions to
users' rights to access content, services and
applications, if they are necessary, shall be
implemented by appropriate measures, in
accordance with the principles of proportionality,
effectiveness and dissuasiveness. These measures
shall not have the effect of hindering the
development of the information society, in
compliance with Directive 2000/31/EC, and shall not
conflict with citizens' fundamental rights, including
the right to privacy and the right to due process.""

IP geeks will recall that the EU parliament has already passed amendment 166 once and it was quietly dropped by the Council of Ministers (for reasons unknown, though some commentators wondered whether it was an administrative error by officials). I would hope that proportionality would apply in the absence of amendment 166 anyway, though it is not a feature of modern IP law but the acceptance or otherwise, in the final telecoms package, of amendment 166 may prove a better indicator of the balance of the politics than of the law.

Nature on the implications of IP for biological research

A couple of academics from Berkeley and one from Arizona have published the results of a survey in Nature indicating, contrary to previous studies cited which indirectly without specific evidence inferred the opposite, that scientists believe that intellectual property protections are having an increasingly negative effect on biological research.

"

A system of intellectual property (IP) rights can encourage inventions by scientists and help promote the transformation of research achievements into marketed products. But associated restrictions on access can reduce utilization of inventions by other scientists. How is this trade-off working out in practice?

This question has been of particular concern for the biological sciences, where production and exchange of biological 'research tools' are important for ongoing scientific progress. Recent studies addressing this issue in the United States^{1, 2}, Germany³, Australia⁴ and Japan⁵ find that "patent thickets"⁶ or an "anticommons"⁷ rarely affect the research of academic scientists. It is well known that biological scientists report increasing difficulties associated with access to research tools but only if the tools are embodied in physical property controlled by others and not easily duplicated. Fear of infringing a prior patent on this material, or the high cost of licensing, is rarely a factor.

Reviewing this evidence, Caulfield et al. infer that "[t]he problems that the data do reveal may have less to do with patents than with commercial concerns, scientific competition and frictions in sharing physical materials"⁸. The emerging consensus of the science and policy literature frames the issue as "material versus intellectual property"^{9, 10} and considers the latter to be rarely a problem for scientists.

This consensus relies on indirect inference. The literature offers almost no direct evidence of scientists' own views of the trade-off involved in IP protection of research tools.

Here we report scientists' assessments regarding the overall effects of IP protection, as revealed in a survey of academic agricultural biologists. Scientists believe that, contrary to the current consensus, proliferation of IP protection has a strongly negative effect on research in their disciplines. Our respondents' answers on the details of access problems are highly consistent with those reported in the recent literature, but they ultimately relate these problems to the proliferation of IP protection in academia.

Follow-up interviews, which recorded scientists' extended accounts of selected cases, provide further insights on how bench scientists experience the negative effects of IP protection (Supplementary Interviews online). They attribute problems of delayed or blocked access to needed research tools to material transfer agreements (MTAs). Academic administrators mandate use of MTAs to protect the value of the IP rights held by their institutions or to reduce their exposure to lawsuits by third parties. In short, the major impediment to accessing research tools is not patents per se, but patenting as an institutional imperative in the post-Bayh-Dole era.

Our respondents do not encounter an anticommons or a patent thicket. Rather, they believe that institutionally mandated MTAs put sand in the wheels of a lively system of intradisciplinary exchanges of research tools. Seeing no countervailing effect on the supply of these tools, they conclude that patenting impedes the progress of research.

These findings challenge the inferences of social scientists that there are no real problems with policies encouraging increased patenting of research tools. They also help explain why agricultural biologists have become leaders in the exploration of open source biology (BiOS, Biological Innovation for Open Society)¹¹ and in institutional collaborations to facilitate access to crucial enabling technologies (PIPRA, Public Intellectual Property Rights for Agriculture)¹². They support the widespread adoption of the Uniform Biological Material Transfer Agreement (UBMTA) for exchanges among scientists, long advocated by the National Institutes of Health¹³. In concurrence with previous related research, they offer no reason to continue supporting a stronger academic research exemption as urged, for example, by Cukier¹⁴."

Sound copyright

A collection of consumer and civil rights groups has sent a joint statement to MEPs opposing the proposed EU directive extending the term of copyright in sound recordings by 50 years.

"

The European Parliament is being asked to nearly double the term of copyright afforded to sound recordings. Industry lobbyists suggest that extending copyright term will help increase the welfare of performers and session musicians. But the Term Extension Directive, which will be voted on by the Legal Affairs Committee in a few weeks' time, will do no such thing. Instead it will hand millions of euros over to the world's four major record labels, money that will come direct from the pockets of European consumers. The majority (80%) of recording artists will receive between €0.50 - €26 a year.

Helping poor recording artists is a commendable aim. But the Term Extension Directive insults these good intentions. Andrew Gowers, former editor of the Financial Times, who conducted an independent review into the intellectual property framework for the UK Government in 2006, has called it out of tune with reality. Professor Bernt Hugenholtz, who advises the European Commission on intellectual property issues, has called it a deliberate attempt on behalf of the Commission to mislead Europe's Parliament. If passed, the Term Extension Directive will have serious consequences for Europe's IP policy.

• Any extension of copyright term will take money directly from consumers' pockets. It will also consign a large part of Europe's cultural heritage to a commercial vacuum.
• Europe's leading IP research centres have clearly shown the proposal does not do what it purports to do - help the poorest performers. It is simply a windfall for the owners of large back catalogues and the top earning performers.
• The proposal will undermine public respect for copyright law and introduce an unworkable and unproven framework for copyright, at the very time when Europe's copyright framework needs to be at its most robust.

We therefore ask you to vote to reject this directive, as per Amendment 15 of the ITRE opinion (David Hammerstein).

As well as EFF, Open Rights Group and Consumer Focus, the statement was signed by BEUC, the umbrella organisation representing 42 consumer rights organisations in Europe, EDRI, the umbrella organisation representing 29 privacy and civil rights organisations across Europe, and IFLA, the umbrella organisation representing over 650,000 library and information professionals worldwide. You can download the full statement here.

Thanks to everyone for the great response to the cartoon we released last week. It's already had over 14,000 views, been translated into Spanish, and it's currently eleventh in YouTube's top favourited News and Politics videos (not bad for the week Obama got inaugurated). But the battle is by no means won yet - please, if you can, come to our event in Brussels next week, or invite your MEP to come on your behalf (UK residents/Other EU residents)."

Obama's inaugural address

Obama's inaugural address is available on the White House blog. And it looks like the Whitehouse website has adopted creative commons rather than standard copyright as it's default licence.

"

Copyright Notice

Pursuant to federal law, government-produced materials appearing on this site are not copyright protected. The United States Government may receive and hold copyrights transferred to it by assignment, bequest, or otherwise.

Except where otherwise noted, third-party content on this site is licensed under a Creative Commons Attribution 3.0 License. Visitors to this website agree to grant a non-exclusive, irrevocable, royalty-free license to the rest of the world for their submissions to Whitehouse.gov under the Creative Commons Attribution 3.0 License.

DMCA Notice

The White House respects the intellectual property of others, and we ask users of our Web sites to do the same. In accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, we have adopted a policy of terminating, in appropriate circumstances and at our sole discretion, subscribers or account holders who are deemed to be repeat infringers. We may also at our sole discretion limit access to our Web site and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement."

Commons better than owning?

Kevin Kelly thinks ownership is not as important as it once was.

"I use roads that I don't own. I have immediate access to 99% of the roads and highways of the world (with a few exceptions) because they are a public commons. We are all granted this street access via our payment of local taxes. For almost any purpose I can think of, the roads of the world serve me as if I owned them. Even better than if I owned them since I am not in charge of maintaining them. The bulk of public infrastructure offers the same "better than owning" benefits.

The web is also a social common good. The web is not the same as public roads, which are "owned" by the public, but in terms of public access and use, the web is a type of community good. The good of the web serves me as if I owned it. I can summon it in full, anytime, with the snap of a finger. Libraries share some of these qualities. The content of the books are not public domain, but their displays (the books) grant public access to their knowledge and information, which is in some ways better than owning them.

Very likely, in the near future, I won't "own" any music, or books, or movies. Instead I will have immediate access to all music, all books, all movies using an always-on service, via a subscription fee or tax. I won't buy – as in make a decision to own -- any individual music or books because I can simply request to see or hear them on demand from the stream of ALL. I may pay for them in bulk but I won't own them. The request to enjoy a work is thus separated from the more complicated choice of whether I want to "own" it. I can consume a movie, music or book without having to decide or follow up on ownership."

Thanks to Glyn Moody via Twitter for the pointer.

DRM in retreat?

Ed Felten quietly applauds the retreat of drm in stored content, most specifically the music industry with Apple's apparent recent abandonment of it.

"Last week's agreement between Apple and the major record companies to eliminate DRM (copy protection) in iTunes songs marks the effective end of DRM for recorded music. The major online music stores are now all DRM-free, and CDs still lack DRM, so consumers who acquire music will now expect it without DRM. That's a sensible result, given the incompatibility and other problems caused by DRM, and it's a good sign that the record companies are ready to retreat from DRM and get on with the job of reinventing themselves for the digital world.

In the movie world, DRM for stored content may also be in trouble. On DVDs, the CSS DRM scheme has long been a dead letter, technologically speaking. The Blu-ray scheme is better, but if Blu-ray doesn't catch on, this doesn't matter...

It remains to be seen how far DRM will retreat. Will it wither away entirely, or will it hang on in some applications?

Meanwhile, it's interesting to see traditional DRM supporters back away from it. RIAA chief Mitch Bainwol now says that the RIAA is agnostic on DRM. And DRM cheerleader Bill Rosenblatt has relaunched his "DRM Watch" blog under the new title "Copyright and Technology". The new blog's first entry: iTunes going DRM-free."

Child Online Protection Act put to rest by Supreme Court

In a case that's been watched by the digital rights community for may years, the Child Online Protection Act of 1998 was finally killed off for good in the latest US Supreme Court decision on the Act today. Scotusblog says:

"The Supreme Court on Wednesday refused the federal government’s request to salvage a six-year-old law seeking to ban minors’ access to sexually explicit material on the World Wide Web. Acting on that law for the third time, the Justices simply declined to review a Third Circuit Court decision last July striking down the Child Online Protection Act of 1998. The Justices’ action came without comment and with no noted dissents in Mukasey v. American Civil Liberties Union, et al. (08-565)."

Obama Photo Mystery Solved

Transformation or infringement? It seems that the guy who took the original photograph that became the basis for the Obama campaign's image promotions didn't know his photograph was the source, according to James Dazinger.

"I believe that last week I solved the biggest photographic mystery of the 2008 election: I found the photographer who took the photo that was the source for Shepard Fairey’s iconic Obama HOPE prints.

My search began last fall, when I recognized that Fairey’s prints were becoming the definitive visual of the campaign, and I began asking everyone from Amanda Fairey, the artist’s wife, to Holly Hughes, the editor of Photo District News, if they knew who took the original photo. No one could seem to pin it down. Shepard Fairey was on record as saying it came from a Google Image search, but couldn’t (or wouldn’t) track it back to the source...

A call to Reuters left their Washington desk reeling, but they put me in touch with their Media Pictures person in New York, a woman named Nancy Glowinski, who was cool, calm and collected. She did some checking, and confirmed that Jim Young had indeed snapped the photo in question.

... Reuters was initially—and understandably—put out that they hadn’t been credited as the original source of what turned out to be the presidential campaign’s most enduring visual image, but no laws had been broken.

Like it or not, Fairey's use of the picture is well within the parameters of what’s considered "fair use." His transformation of the image—flipping and re-orienting it, adding jacket, tie and the "O" Obama logo, and converting it to his block print style—make it consistent with all legal precedents for public use...

But perhaps the best proof that Fairey transformed the photo into something all his own is that Young, a Washington-based photographer who has taken, in his words, “thousands” of pictures of Obama, was not even aware that the most ubiquitous image of the election was based on his photograph. He’d seen the HOPE poster countless times and never made the connection to his own photograph, which he snapped at a 2007 Senate confirmation hearing."

US interogator tortured by what he saw in Iraq

Also via Crypto-gram I'm Still Tortured by What I Saw in Iraq

"I should have felt triumphant when I returned from Iraq in August 2006. Instead, I was worried and exhausted. My team of interrogators had successfully hunted down one of the most notorious mass murderers of our generation, Abu Musab al-Zarqawi, the leader of al-Qaeda in Iraq and the mastermind of the campaign of suicide bombings that had helped plunge Iraq into civil war. But instead of celebrating our success, my mind was consumed with the unfinished business of our mission: fixing the deeply flawed, ineffective and un-American way the U.S. military conducts interrogations in Iraq. I'm still alarmed about that today.

I'm not some ivory-tower type; I served for 14 years in the U.S. Air Force, began my career as a Special Operations pilot flying helicopters, saw combat in Bosnia and Kosovo, became an Air Force counterintelligence agent, then volunteered to go to Iraq to work as a senior interrogator. What I saw in Iraq still rattles me -- both because it betrays our traditions and because it just doesn't work."

Putting gunpowder in a clear plastic bag makes it safe to carry on a plane?

Rhona Mahony seems to have discovered that putting the constituents of gunpowder into a clear plastic bag was all it took for her to be allowed to carry that gunpowder through airport security onto a passenger plane.

"December 5, I brought five ounces (140 grams) of old-fashioned black gunpowder to San Francisco airport... Mind you, I had packed the stuff safely. It was in three separate jars: one of charcoal, one of sulphur, and one of saltpetre (potassium nitrate). Each jar was labeled: Charcoal, Sulphur, Saltpetre. I had also thoroughly wet down each powder with tap water. No ignition was possible. As a good citizen, I had packed the resulting pastes into a quart-sized “3-1-1″ plastic bag, along with my shampoo and hand cream. This bag I took out of my messenger bag and put on top of my bin of belongings, turned so that the labels were easy for the TSA inspector to read...

May I suggest that our new Secretary of Homeland Security reconsider the billions allocated in the 2009 budget to the Transportation Security Agency and its 48,000 employees? Many thoughtful travelers know that the rigamarole we go through on the way to our airline gates is a show to comfort the ignorant, to keep them buying airline tickets. Tell the truth, save our time, save our money. Let us resume our old carefree stroll to the gate. Spend some of the $3 billion on real police work to catch the bad guys. That would make us safer."

Priceless. Thanks to Bruce Schneier via the latest Crypto-Gram for the link.

EU Copyright term again, some exchanges with MEPs

I've written to my MEPs asking them to oppose the directive shortly to come before the EU parliament on extending the term of copyright in sound recordings (going through committee this week and due for a full vote in parliament on 18th February). I've had four responses within 24 hours - from Andrew Reed on behalf of Nigel Farage (UKIP), Ashley Mote (independent), Sharon Bowles and Cath Miller on behalf of Caroline Lucas.

UKIP oppose the directive not only on the grounds that it is EU legislation, all of which they oppose, but Mr Reed also said they would oppose such a term extension in the UK.

Mr Mote's reply was:

"Sorry, as a writer I disagree
AM"

I've responded:

"Dear Mr Mote,
As I'm also a writer I'd appreciate it if you could explain why you disagree.
Regards,
Ray Corrigan

Sharon Bowles, who is a patent lawyer, sits on the parliament's legislative affairs (JURI) committee, which is considering the term extension proposal this week, and is planning to put forward some amendments. Her response in full:

"Dear Mr. Corrigan,

Thank you for your email on the extension of copyright term, which comes through its Committee stage this week.

As my background before becoming an MEP was as a patent attorney, I have an interest in intellectual property matters, and I will be very involved in the progress of this legislation as a member of the European Parliament’s Legal Affairs committee.

The background to this is that there has been a lot of high profile lobbying following a similar extension in the US. As you mentioned, Sir Cliff Richard and other leading performers have spearheaded demands for such an extension. Given that such artists had received good remuneration, I did not think their case was all that good.

I have spoken to Charlie McCreevy, the Commissioner responsible for introducing this legislation, about this issue. He pointed out that these changes were not intended to protect featured artists such as Cliff and the Beatles, but to protect session musicians who contributed to sound recordings in the late fifties and sixties.

I should mention that the Commissioner did try to stop the extra copyright unfairly advantaging the big media companies. The royalties received in the extended period would be used, among other things, to create a fund for session musicians, and an extension to the contracts that prevent musicians from re-recording will not be allowed. Record companies are now required to set up funds to pay 20% of revenue earned during the extended period. This fund goes to help session musicians and thus, in a sense, contributing to today's music culture.

In advance of the report’s introduction to the Legal Affairs committee, I have tabled a number of amendments which I hope will create a more constructive piece of legislation, and which aim to allow extension but with sensible restrictions.

Firstly I would like to see the proposed automatic extension to 95 years for all sound recordings replaced with a system whereby individual performers who have not received adequate remuneration can register for an extension of term. Whether to make an application would remain within the choice of the individual performer. This system would be transparent and an online register would be made of all extensions that have been granted.

Secondly I would like to see any extension period, made subject to a free licence of right. Such licences of right could exist for private clubs and social broadcasts of attendance not exceeding 250 (thus allowing for events such as ‘60s nights). Under this amendment no copyright levy may be applied in any extended period.

Thirdly I would like to see individual performers granted a ‘moral right’ in their performance that is unassignable and shall last for 95 years; this will be in order to prevent objectionable uses of their material. As part of this I envisage giving individual performers the right to receive unencumbered royalties in any period of extended copyright.

However, the role of media companies in delivering the recordings still has to be considered one of the most effective ways of deserving performers obtaining royalties. Therefore, we have to look carefully at their role.

As I have mentioned, the Legal Affairs Committee’s report is expected to go through the Committee stage this week, and I expect the legislation to be voted upon by the full Parliament on 18th February. Please be assured that I will be working to achieve a fair piece of legislation.

Once again thank you for writing to me on this important issue. Please do not hesitate to contact me again if I can be of any further assistance.

Yours sincerely,

Sharon Bowles MEP"

I replied thanking her for her efforts to inject some sensible amendments but nevertheless asking her again to oppose the directive. This directive is too broken to fix with amendments:

Dear Ms Bowles,

Many thanks for your prompt and considered response and I wish you luck in pursuing the thoughtful amendments you are proposing to the legislation. It is good to know there are MEPs with a deep understanding of the subject matter working to make an intellectual property directive more practical.

Having said that your proposed amendments do generate the need to monitor media companies' revenue flows much more closely than before presumably? That in turn generates political hurdles which I'm sure you understand and it has potentially significant resource implications depending on how such auditing (not to mention enforcement) were to be done.

I agree that if the legislation is to be workable the needs of all the key stakeholders, including the artists, the public and the media companies, have to be taken into consideration. As it stands, however, according to the Commission's own figures, 90% of the extra revenues would flow to the media companies, a further 9% to the top 20% of earners amongst the artists and about 1% to the remainder of artists and session musicians. The general public - one of the key generic stakeholders - pays for all this i.e. not only receives no benefits but actually funds the whole thing. (Even if you could ensure that media companies were forced to use 20% of their 90% (i.e. 18%) went into social fund schemes, it still means less than a fifth of the benefits would flow to the primary intended beneficiaries, the session musicians. Whilst I applaud the idea of requiring the media companies to set up social/pension funds, it may be better not to link them to the revenue flows which may prove very difficult to track in practice).

So term extension is an economically very inefficient way of generating social/pension funds for session musicians. Though I appreciate it is politically more difficult to sell, a direct tax, for example, which funded a pension scheme for session musicians would be much more transparent and significantly less costly both from a financial and a social perspective. As a patent lawyer you'll be intimately familiar with the issue of the social costs e.g. in relation to orphan works etc.

Commissioner McCreevy's laudable intentions to benefit the session musicians rather than the Cliff Richard's of the entertainment world can't be realised through the proposed term extension. In addition, as a chartered accountant and Irish finance minister for 7 years, Commissioner McCreevy should be intimately familiar with the kind of discounted cash flow models that demonstrate that copyright which lasts 95 years is worth more than 99%, in present value terms, of copyright that lasted forever.

I would just round off by summarising why I'm opposed to the term extension directive:

• It's a very expensive and economically inefficient way of generating social funds for session musicians

• The general public are the paymasters and big losers

• The main beneficiaries are the music companies and the top earning artists i.e. not the intended beneficiaries

• In present value terms, a 95 year term is almost equivalent to a copyright term that lasts forever

Whereas I very much appreciate your efforts to inject some balance into the directive, I would still request that you oppose it on my behalf, and certainly if it continues to go forward in its present form.

Thanks again for your prompt and informed response.

Yours sincerely,

Ray Corrigan

Cath Miller's email on behalf of the Green Party leader, Caroline Lucas, said they were working closely with Open Rights Group on the issue. Her response in full:

"Dear Ray,

Thank you for your recent email about the Copyright Term Extension Directive. Caroline has asked me to respond on her behalf. She very much agrees with you that action is needed to better reward performers but she does not believe that this legislation is the solution.

Greens are working closely with the Open Rights Group to oppose the Directive because the way it is framed profits owners of the rights to music and not performers. Record labels will be allowed to deduct “costs” from a fund intended to benefit session musicians, for example. In fact it is estimated that under this legislation 80% of profits from copyright deals would go to the media conglomerates and most of the remainder to the biggest recording artists. As you know, the European Commission’s own figures demonstrate that performers will barely benefit from the new terms.

Greens fear that the negative consequences of this legislation would include the selling of back catalogues being given priority over the creation of new music, and a loss of the benefits associated with experimenting with music from the recent past. Indeed, the European Broadcast Union has stated publicly that the proposal will make ‘consumers foot the bill while stifling innovation.’

Caroline is also worried about the watering down of plans for so called ‘orphan works’ and commercially worthless but culturally significant recordings to enter the public domain; the widening of the scope of the Directive to include audio-visual recordings; and the way that the European Commission is seeking to rush the proposals through Parliament without adequate scrutiny by MEPs.

The Green Party is committed instead to a system known as Creative Commons, which offers a flexible range of protections and freedoms for authors and artists. See http://creativecommons.org/ for further information. This position is based on a desire to encourage innovation and prevent large corporations from controlling and benefitting from our cultural legacy. She believes that, as well as developing alternative ways to support performers, writers and so forth, priority must be given to a far more open policy of sharing music, film, software etc via the internet.

Caroline appreciates you taking the time to raise this matter with her. You can read more about Caroline’s work at www.carolinelucasmep.org.uk

Kind regards,

Cath.

Cath Miller

Constituency Coordinator and Researcher

Office of Dr Caroline Lucas"

And my further response...

Dear Cath,

Many thanks for your prompt and considered response. It's good to know that the Green Party is opposing the directive and encouraging to hear you are working with the Open Rights Group on the issue. I'm also pleased hear you're familiar with Creative Commons licences - not, sadly, a universal feature of the upper echelons of the big political parties.

I agree that it would be very difficult in practice to pin down record labels revenue flows in such a way as to ensure they would not effectively reneage on an obligation to support social funds to benefit session musicians. It would be less costly to the public to impose a direct tax to fund such a social welfare scheme. It would certainly be more economically efficient than extending the term of copyright and having the majority of the associated benefits flowing to the music companies and the top earning artists (and all of the costs accruing to the public).

Thanks again for your prompt and thoughtful response and good luck to Ms Lucas and the Green Party in opposing the term extension directive.

Regards,

Ray"

Responses to UK government P2P filesharing consultation

The Department for Business Enterprise & Regulatory Reform has published the responses to their P2P filesharing consultation.

"None of the options highlighted in the consultation won widespread support. Rather there was a marked polarisation of views between the rights holder community and consumers and the ISPs over what action should be taken.

A number of key issues were identified by respondents including copyright protection, protections afforded under eCommerce legislation and the impact on the wider economy. Consumers (individuals and consumer organisations) in particular highlighted concerns over data protection and privacy. The role of technology was addressed by most respondents, however there were conflicting views as to whether it could offer all or part of any solution. For almost all the options, questions were raised as to their legality under the existing legal frameworks and again, views varied.

There was a degree of consensus that any solution must involve the provision of new legal sources of attractive content and the need for education on the importance of copyright in the wider economy.

A number of replies suggested alternative models to those options proposed. Copies of all non-confidential responses received have been placed on the BERR website."

It looks like someone at the FT has been talking to a government spokesperson of some sort about the kind of regulation they might be considering in the wake of the consultation too. Not quite three strikes but a mandatory system of automated warning letters (the problems with which Lilian has long since clinically illustrated) and mass release of personal details of suspected file sharers to rights holders.

The officials at the BERR I met last year clearly recognised the problems with this kind of approach and its bigger brother the 3-strikes approach in regulation but that doesn't mean the Andy Burnham minster types of this world haven't been mesmerised by their heroes in the music industry into doing something stupid. So as usual with IP it's a case of wait and see how bad it will eventually turn out to be while in the meantime continually pointing out the rationalities (or lack of them) in the smoke and mirrors that constitutes the public debate in the area.

Data sharing and government

I'm finally turning Tony into a policy geek.

"I made a couple of soft resolutions to myself at the start of this year, one of which was to try to take more interest in policy matters, particular in areas that impact upon the web and “information”. But I suspect that getting my head round the implications of proposed new legislation is going to be non-trivial.

For example, the MySpace generation believes that sharing personal information in public is the thing you do, right? But what about when government agencies can freely share your personal data between themselves.

For example, a couple of days ago, the Coroners and Justice Bill was introduced to Parliament containing a proposed amendment to the Data Protection Act:

152 Information sharing
After section 50 of the Data Protection Act 1998 (c.29) insert—
“PART 5A INFORMATION SHARING
50A Power to enable information sharing
(1) Subject to the following provisions of this Part, a designated authority may by order (an “information-sharing order”) enable any person to share information which consists of or includes personal data.
…
(3) For the purposes of this Part a person shares information if the
person—
(a) discloses the information by transmission, dissemination or otherwise making it available, or
(b) consults or uses the information for a purpose other than the purpose for which the information was obtained.”

I’m not sure what this might mean in practice...

It seems, though, that there are “Explanatory notes” that explain the intention behind some of the proposals: Explanatory notes (Clause 152: Information Sharing):

691. Section 50A(1) creates an order-making power to enable a person to share information that consists of, or includes, personal data...

Here’s a bit more from the introduced Bill itself:

50B Information-sharing orders: supplementary provision
(1) An information-sharing order may—
(a) confer powers on the person in respect of whom it is made;
(b) remove or modify any prohibition or restriction imposed (whether by virtue of an enactment or otherwise) on the sharing of the information by that person or on further or onward disclosure of the information;
(c) confer powers on any person to enable further or onward disclosure of the information;
(d) prohibit or restrict further or onward disclosure of the information;
(e) impose conditions on the sharing of information;
(f) provide for a person to exercise a discretion in dealing with any matter;
(g) enable information to be shared by, or disclosed to, the designated authority;
(h) modify any enactment.

Now I’m not a lawyer, and I don’t speak Legislation, but what do paragraphs b and c mean exactly? In “real terms”? And how do they operate differently to g? Read them again… go on… read them…"

Oh and in answer to your questions Tony - is data sharing good and is HM Govt. evil - yes and no to the former and cock-up not conspiracy to the latter.

ORG cartoon on copyright extension

Excellent:

Mac clone maker claims it bought OS X from Apple

From ComputerWorld:

"The Mac clone maker being sued by Apple Inc. because it installs Mac OS X on generic Intel-based systems said it bought copies of the operating system from Apple itself, court documents show."

A little web surfing and we can find Psystar's formal motion submitted to the Northern District Court of California last week:

"Psystar’s present motion is rooted in Apple’s misuse of copyrights. Psystar therefore seeks declaratory relief finding Apple’s asserted copyrights to be unenforceable. A declaratory judgment as to Apple’s misuse of copyrights would inure to any party presently relegated to the sidelines by Apple’s inequitable and overly litigious conduct. Apple’s attempts to mischaracterize Psystar’s present claims for copyright misuse are, in that regard, understandable. Nevertheless, Psystar’s assertions as to Apple’s copyright misuse are viable. Psystar’s first amended counterclaims evidence a clear case and controversy appropriate for adjudication...

Apple likewise fails to explain how allowing Psystar’s claims would needlessly complicate the present litigation. These unsupported arguments are nothing more
than window dressing for Apple’s true concern—the nuclear fallout from a declaratory judgment as to unenforceability of Apple’s copyrights. Such a judgment would “have the force and effect of a final judgment” not only with respect to Psystar but to other parties attempting to compete alongside Apple...

A copyright holder is not entitled to “leverag[e] their limited monopoly to allow them to control areas outside the [copyright] monopoly.” A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1026-27 (9th Cir. 2001) (emphasis added). Copyright misuse likewise “forbids the use of the copyright to secure an exclusive right or limited monopoly not granted by the Copyright Office.” Practice Mgmt., 121 F.3d at 520...

Psystar distributes computers with legitimately purchased copies of Mac OS loaded thereon; many of those copies directly obtained from Apple. And for every computer that Psystar distributes with the Mac OS installed, Psystar also includes a legitimately purchased copy of the Mac OS. While Psystar complies with Section
117(b) of the Copyright Act, Apple attempts to usurp those limitations by telling Psystar and its customers that Apple—and Apple alone—will say “whether, how or by whom its software is . . .distributed or used.”...

Such declarations likewise run afoul of 17 U.S.C. § 109 and the first sale doctrine. Once a copyright owner consents to the sale of particular copies of a work, the owner may not thereafter exercise distribution rights with respect to those copies. See, e.g., Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 350-51 (1908) (recognizing more than 100 years ago the concept of first sale and the limitations imposed upon a copyright owner in light thereof). Psystar acquired lawful copies of the Mac OS from Apple; those copies were lawfully acquired from authorized distributors including some directly from Apple; Psystar paid good and valuable consideration for those copies; Psystar disposed of those lawfully acquired copies to third-parties...

Apple attempts to disguise interoperability—which is favored by the copyright laws—as circumvention. Apple then proceeds to bring suit under the DMCA to prohibit such interoperability. Customers are thereby required to utilize Apple-Labeled Computer Hardware Systems—hardware system that are wholly outside the scope of any copyright held by Apple...

Psystar does not allege that Apple is controlling the specific use of an Apple-Labeled Computer Hardware System. Psystar does not allege that Apple requires an Apple-
Labeled Computer Hardware system to only be used at particular times, in a particular fashion, orfor a particular ends or purpose.

What Psystar does allege is that Apple is inappropriately extending its copyrights in the Mac OS to the purchase of an Apple-Labeled Computer Hardware System for the purpose of using the Mac OS...

Through Apple’s End User License Agreement (EULA), to load or execute a copy of the Mac OS requires (according to Apple) the purchase and exclusive use of an Apple-Labeled Computer Hardware System with the Mac OS... A copyright is exclusive to creative works; Apple’s copyrights in the Mac OS do not cover hardware...

Not only is such an extension of copyrights in the Mac OS to an independent hardware component anticompetitive (i.e., to the detriment of other hardware
manufacturers), Apple’s EULA violates the public policy of the copyright laws by overextending the limited copyright monopoly... This type of monopoly
extension through tying is the exact behavior prohibited by the copyright misuse doctrine."

It's a clever argument - we bought it from Apple and they're saying we can't play with it unless we buy their hardware to use with it too - but the outcome may just hang on the judge's perspective of the enforceability of Apple's EULA in this context.

Berkman Center Task Force Reports on Child Safety

The Berkman Center's Internet Safety Technical Task Force has released its final report today. From the Executive Summary:

Many youth in the United States have fully integrated the Internet into their daily lives.
For them, the Internet is a positive and powerful space for socializing, learning, and engaging in
public life. Along with the positive aspects of Internet use come risks to safety, including the
dangers of sexual solicitation, online harassment, and bullying, and exposure to problematic and
illegal content. The Multi-State Working Group on Social Networking, comprising 50 state
Attorneys General, asked this Task Force to determine the extent to which today’s technologies
could help to address these online safety risks, with a primary focus on social network sites in the
United States.

Due to the nature of the Task Force, this Report is not a consensus document, and should be read
in conjunction with the separate Statements from Task Force members included in the appendix.
At the outset, the Task Force recognized that we could not determine how technologies
can help promote online safety for minors without first establishing a clear understanding of the
actual risks that minors face, based on an examination of the most rigorously conducted research.
The Task Force asked a Research Advisory Board comprising leading researchers in the field to
conduct a comprehensive review of relevant work in the United States to date. The Literature
Review shows that the risks minors face online are complex and multifaceted and are in most
cases not significantly different than those they face offline, and that as they get older, minors
themselves contribute to some of the problems...

The Task Force asked a Technology Advisory Board (TAB) comprising technology
experts from a range of backgrounds to solicit and review submissions from vendors and others
offering currently available technologies. The TAB received 40 written submissions representing
several categories of technologies, including age verification and identity authentication, filtering
and auditing, text analysis, and biometrics. In sum, the TAB’s review of the submitted
technologies leaves the TAB in a state of cautious optimism, with many submissions showing
substantial promise. The youth online safety industry is evolving. Many of the technologies
reviewed were point solutions rather than broad attempts to address the safety of minors online
as a whole. There is, however, a great deal of innovation in this arena as well as passionate
commitment to finding workable, reasonable solutions from companies both large and small. The
TAB emerged from its review process encouraged by the creativity and productivity apparent in
this field.

The TAB and the Task Force note that almost all technologies submitted present privacy
and security issues that should be weighed against any potential benefits. Additionally, because
some technologies carry an economic cost and some require involvement by parents and
teachers, relying on them may not protect society’s most vulnerable minors.

The Task Force makes specific recommendations in Part VII to
the Internet community and to parents, as well as recommendations regarding the allocation of
resources:
• Members of the Internet community should continue to work with child safety experts,
technologists, public policy advocates, social services, and law enforcement to: develop
and incorporate a range of technologies as part of their strategy to protect minors from
harm online...Careful consideration should
be given to what the data show about the actual risks to minors’ safety online and how best
to address them, to constitutional rights, and to privacy and security concerns.
• To complement the use of technology, greater resources should be allocated: to schools,
libraries, and other community organizations to assist them in adopting risk management
policies and in providing education about online safety issues; to law enforcement for
training and developing technology tools, and to enhance community policing efforts
around youth online safety; and to social services and mental health professionals who
focus on minors and their families, so that they can extend their expertise to online spaces
and work with law enforcement and the Internet community to develop a unified approach
for identifying at-risk youth and intervening before risky behavior results in danger.
Greater resources also should be allocated for ongoing research into the precise nature of
online risks to minors, and how these risks shift over time and are (or are not) mitigated by
interventions...
• Parents and caregivers should: educate themselves about the Internet and the ways in which
their children use it... be engaged and involved in their children’s Internet use;

Departments deny memory stick risks

From Kable: Departments deny memory stick risks

"The departments of health and transport have denied a report that they allow staff to use USB devices to transfer unencrypted information

In a report on 12 January 2008, the Financial Times said that information obtained under the Freedom of Information Act and passed to the newspaper shows that the Department of Health and the Department for Transport are still allowing employees to download unencrypted data to UBS memory sticks.

But a spokesperson for the Department for Transport told GC News that this was untrue."

Thanks to Glyn at ORG for the link and check out ORG's wiki page on UK privacy debacles of recent years. It gives a good indication of how widespread poor electronic data management practices are.

ISPs tread risky path with new rules on piracy

From the New Zealand Herald:

"Internet service providers are struggling to deal with a new law requiring them to axe the internet connections of customers who "repeatedly" access pirated material.

Section 92A of the Copyright (New Technologies) Amendment Act, passed last year, takes effect on February 28.

It says ISPs will have to "reasonably implement" a policy to disconnect "in appropriate circumstances" the internet services of users who have repeatedly downloaded or uploaded infringing music, movies, games or other copyright material."

U.S. visitors required to register online

From CNet: U.S. visitors required to register online

"Starting Monday, travelers from the United Kingdom, Germany, Japan, Australia, and a host of other countries will have to register online with the U.S. Department of Homeland Security before they can travel into the United States."

Times interview McKinnon's mother

The Times has an interview today with Gary McKinnon's mother.

"“It doesn’t excuse it, because if you commit a crime, you commit a crime,” she toldThe Times, in her first major interview. “I would say to Gordon Brown and David Cameron, you both have vulnerable young sons. Should we really be extraditing our vulnerable adults and letting them serve 70 years abroad? Seventy years for looking for UFOs?”

Mrs Sharp argues that Asperger’s – a form of autism that causes obsessive or repetitive behaviour and impairs social skills, renders her son dangerously unready for life in an American penitentiary – Also, for all his snooping around cyberspace in search of extraterrestial life, McKinnon has never even left the UK “He won’t survive. He’s absolutely petrified. We’ve already received taunting messages about male rape, stun guns,” she says. “We worry that we won’t be alive to see him free.

[...]

“He’s not a genius. He good, but he’s not the best. They had no passwords, no firewalls, and that’s the problem. Gary embarrassed them. They wanted to make an example of somebody for computer crime, so they thought Gary was a soft touch. I think governments try to frighten people. They like to create villains and threats to justify some of their actions.” "

Update: Also in the Times: Let's face it, soon Big Brother will have no trouble recognising you

ebook drm provider goes dark

Cory is reporting that an ebook drm provider, Overdrive, is going dark. Fictionwise, which sold the drm crippled ebooks has a set of faqs for affected customers. Sample:

"

What is the eReader Replacement File Program?

Fictionwise obtains "feeds" of eBooks from several different content aggregators, and these aggregators use their servers to deliver encrypted files to our customers. One of these aggregators, Overdrive, recently gave Fictionwise notice that they would cease serving files to Fictionwise customers as of January 31, 2009...

How many purchased eBooks were affected by this?

Approximately 300,000 eBook units purchased by Fictionwise customers were delivered via Overdrive...

How can I tell which of my eBook purchases might be from Overdrive?

In your bookshelf, go to the DISPLAY menu and select Overdrive Expiring then click UPDATE. You will see a list of just those eBooks that were purchased via Overdrive. After January 31, 2009 those books will "expire" and will no longer be downloadable. We suggest you download those eBooks one last time to make sure they are up to date for your current devices, and store them in a safe location, making backup copies where possible. Please download them one by one, do not use "Bulk Download" because that does not work for every type of Secure content, and it can have problems if you try to download a very large number of files at once...

What if I prefer a format other than Secure eReader?

It is not contractually possible for us to substitute the original format you purchased; ...

I thought Fictionwise guarantees all eBooks will remain on my bookshelf forever?

Fictionwise strives to maintain backup copies of your purchases available for re-download indefinitely, but our terms of service do not guarantee that they will be available for re-download forever. For all formats other than Mobipocket, a re-download is not necessary to transfer the file to a new device. Forever is a long time. We have control of our MultiFormat files and we have control of the Secure eReader format, so that gives us the ability to ensure we will continue to be able to deliver those formats to you. However, as noted above, other formats are delivered through third party aggregators. We do not have legal control of those third party servers. If those third party servers "go dark" for one reason or another, we have no way to continue delivering those files. It is important to note that other eBook retailers such as Barnes and Noble, Gemstar, and Amazon.com's original eBook store circa 2004 did not make any effort to maintain long term customer access to purchased material when they shut down their eBook operations in the past. They announced a time period for final download then shut down the servers."

I ask again: how can anyone believe that drm is a good idea?

Obama picks RIAA's favorite lawyer for a top DOJ post

President Elect Obama has reportedly picked one of the RIAA's favorite lawyers for a top position at the Justice Department.

This was reasonably predictable given the strong links between the Democratic Party and the entertainment industry.

Tenenbaum argues privacy invasion in P2P pursuit

Charles Nesson of Harvard's Berkman Centre argued at a federal court hearing last week that a "couple whose son is accused of illegally sharing songs online should not be forced to surrender their home computer for inspection because it would violate their right to privacy"

Predictions for 2009

Ed Felten and co at Freedom to Tinker have produced a long list of predictions for 2009.

Well worth a read - as eclectic and simultaneously comprehensive collection of the important tags in US tech policy that you'll find anywhere. Here's a few:

"(1) DRM technology will still fail to prevent widespread infringement. In a related development, pigs will still fail to fly...

(4) The RIAA's "graduated response" initiative will sputter and die because ISPs are unwilling to cut off users based on unrebutted accusations. Lawsuits against individual end-user infringers will quietly continue...

(7) NebuAd and the regional ISPs recently sued for deploying NebuAd's advertising system will settle with the class action plantiffs for an undisclosed sum. At least in part because of the lawsuit and settlement, no U.S. ISP will deploy a new NebuAd/Phorm-like system in 2009. Meanwhile, Phorm will continue to be successful with privacy regulators in the UK and will sign up reluctant ISPs there who are facing competitive pressure. Activists will raise strong objections to no avail.

(8) The federal Court of Appeals for the Ninth Circuit will hear oral argument in the case of U.S. v. Lori Drew, the Megan Meier/MySpace prosecution. By year's end, the Ninth Circuit panel still will not have issued a decision, although after oral argument, the pundits will predict a 3-0 or 2-1 reversal of the conviction...

(11) An academic security researcher will face prosecution under the CFAA, anti wire tapping laws, or other computer intrusion statutes for violations that occurred in the process of research...

(16) One of the major American voting system manufacturers (Diebold/Premier, Sequoia, ES&S, or Hart InterCivic) will go out of business or be absorbed into one of its rivals...

(19) We'll see the first clear-cut evidence of a malicious attack on a voting system fielded in a state or local election. This attack will exploit known flaws in a "toe in the water" test and vendors will say they fixed the flaw years ago and the new version is in the certification pipeline.

(20) U.S. federal government computers will suffer from at least one high-profile compromise by a foreign entity, leaking a substantial amount of classified or highly sensitive information abroad...

(28) Facebook will be sold for $4 billion and Mark Zuckerberg will step down as CEO...

(35) Somebody besides Apple will sell an iPod clone that's a drop-in replacement for a real iPod, complete with support for iTunes DRM, video playback, and so forth. Apple will sue (or threaten to sue), but won't be able to stop distribution of this product."

Can't say I agree with all of these (even the Freedom to Tinkerers don't agree with all of them) especially number 4 on the 3 strikes approach, given the ongoing success of the music industry in pushing this in Europe, but we'll see.

Lessig on the Colbert Report

Larry Lessig was on the Colbert Report on Thursday.

The Colbert ReportMon - Thurs 11:30pm / 10:30c

Lawrence Lessig

Colbert at Christmas
Colbert Christmas DVD

Green Screen
Bill O'Reilly Interview

Entertaining. I liked the glint of understanding in Colbert's eyes when Lessig asked him how much did he think the book he was holding would fetch on eBay now he'd doctored it. He also gave Larry an opportunity to get on his side by joining in the joke he was repeatedly pushing that he (Colbert) and he alone should benefit from the funds flowing from copyright. Larry didn't pick up the opening but it's easier said than done. Engaging in instant witty repartee, especially when your protagonist is pursuing in the kind of relentless barrage that Colbert specialises in is not one of my talents either - constructing the perfect response in my own head 10 seconds or 3 hours too late is more my line.

The EFF has also located a re-mix of the interview done by a fan on the night. Larry also has a collection.

ORG gets new Executive Director

The Open Rights Group has just appointed Jim Killock as the new Executive Director to take over from Becky Hogge.

RIAA lose Jammie Thomas mistrial appeal

The RIAA has reportedly lost its appeal on the declaration of a mistrial by the judge in the Jammie Thomas peer to peer copyright infringement case. A jury had originally ordered Ms Thomas to pay $222,000 in damages but the judge later agreed that he had inadvertently misled the jury in his final directions to them relating to the consideration of their verdict.

Analysis of Google Book settlement

James Grimmelmann has done a comprehensive analysis of the proposed settlement agreement in the Google Book case. He concludes with the following recommendations:

"Summary of principles and recommendations (hyperlinks take you back to the section of the document that discusses them)

• P0: The settlement should be approved
  • R0: Approve the settlement.
• P1: The Registry poses an antitrust problem
  • R1: Put library and reader representatives on the Registry’s board.
  • R2: Require the Registry to sign an antitrust consent decree.
  • R3: Give future authors and publishers the same deal as current ones.
• P2 If it didn’t already, Google poses an antitrust problem
  • R4: Strike the most-favored-nations clause.
  • R5: Allow Google’s competitors to offer the same services the settlement allows Google to offer, with the same obligations.
  • R6: Authorize the Registry to negotiate on copyright owners’ behalf with Google’s competitors.
• P3: Enforce reasonable consumer-protection standards
  • R7: Prohibit Google from price discriminating in individual book sales.
  • R8: Insert strict guarantees of reader privacy.
  • R9: Protect readers from being asked to waive their rights as a condition of access.
• P4: Make the public goods generated by the project truly public
  • R10: Require that Google’s database of in-print/out-of-print information be made public.
  • R11: Require that the Registry’s database of copyright owner information be made public.
  • R12: Require the use of standard APIs, open data formats, and (for metadata) unrestricted access.
• P5: Require accountability and transparency
  • R13: Require that Google inform the public when it excludes a book for editorial reasons.
  • R14: Tighten up the definition of “non-editorial reasons” for excluding a book.
  • R15: Allow any institution ready, willing, and able to participate in scanning books to do so."

Shirky on 2009, including iPlayer drm

The Guardian has interviewed Clay Shirky to get his perspectives on the coming year in technology.

Given my Christmas drm woes with the iPlayer I had a wry grin at his comments about the BBC.

"And the BBC iPlayer? That's a debacle. The digital rights management thing ...let's just pretend that it was a dream like on Dallas and start from scratch. The iPlayer is a back-to-the-future business model. It's a total subversion of Reithian values in favour of trying to create what had been an accidental monopoly as a kind of robust business model. The idea that the old geographical segmenting of terrestrial broadcasts is recreatable is a fantasy and a waste of time."

In the wake of my irritation with the iPlayer Glyn at ORG kindly pointed me at a terrific little linuxcentre tool, get_iplayer, which lets you download any BBC programme available via the iPlayer in Quicktime or MP4 format.

It has a command line interface which may be off-putting for the geekily challenged but it is genuinely easy to use. I'm not kidding. In less than 20 minutes I had downloaded and installed get_iPlayer and pulled down a pristine Quicktime version of an iPlayer programme (enabling me to catch up on a part of the programme I had missed on Christmas day due to another tech malfunction which I won't bore you with now). Thanks Glyn!

With my son still periodically muttering darkly about "stupid drm digital locks" as he mucks about with his new Walkman, I'm tempted to launch into one of my drm rants but instead I'll refer you to the words of the self confessed 'pretty unlikely early adopter' above again (Shirky) and Cory Doctorow's honest user story from his Microsoft DRM talk in 2004:

"Here's the social reason that DRM fails: keeping an honest user
honest is like keeping a tall user tall. DRM vendors tell us that
their technology is meant to be proof against average users, not
organized criminal gangs like the Ukranian pirates who stamp out
millions of high-quality counterfeits. It's not meant to be proof
against sophisticated college kids. It's not meant to be proof
against anyone who knows how to edit her registry, or hold down
the shift key at the right moment, or use a search engine. At the
end of the day, the user DRM is meant to defend against is the
most unsophisticated and least capable among us.

Here's a true story about a user I know who was stopped by DRM.
She's smart, college educated, and knows nothing about
electronics. She has three kids. She has a DVD in the living room
and an old VHS deck in the kids' playroom. One day, she brought
home the Toy Story DVD for the kids. That's a substantial
investment, and given the generally jam-smeared character of
everything the kids get their paws on, she decided to tape the
DVD off to VHS and give that to the kids -- that way she could
make a fresh VHS copy when the first one went south. She cabled
her DVD into her VHS and pressed play on the DVD and record on
the VCR and waited.

Before I go farther, I want us all to stop a moment and marvel at
this. Here is someone who is practically technophobic, but who
was able to construct a mental model of sufficient accuracy that
she figured out that she could connect her cables in the right
order and dub her digital disc off to analog tape. I imagine that
everyone in this room is the front-line tech support for someone
in her or his family: wouldn't it be great if all our non-geek
friends and relatives were this clever and imaginative?

I also want to point out that this is the proverbial honest user.
She's not making a copy for the next door neighbors. She's not
making a copy and selling it on a blanket on Canal Street. She's
not ripping it to her hard-drive, DivX encoding it and putting it
in her Kazaa sharepoint. She's doing something *honest* -- moving
it from one format to another. She's home taping.

Except she fails. There's a DRM system called Macrovision
embedded -- by law -- in every VHS that messes with the vertical
blanking interval in the signal and causes any tape made in this
fashion to fail. Macrovision can be defeated for about $10 with a
gadget readily available on eBay. But our infringer doesn't know
that. She's "honest." Technically unsophisticated. Not stupid,
mind you -- just naive.

The Darknet paper addresses this possibility: it even predicts
what this person will do in the long run: she'll find out about
Kazaa and the next time she wants to get a movie for the kids,
she'll download it from the net and burn it for them."

"The Darknet paper he refers to at the end is The Darknet and the Future of Content Distribution by Peter Biddle, Paul England, Marcus Peinado, and Bryan Willman at Microsoft. Abstract:

We investigate the darknet – a collection of networks and technologies used to share digital content. The darknet is not a separate physical network but an application and protocol layer riding on existing networks. Examples of darknets are peer-to-peer file sharing, CD and DVD copying, and key or password sharing on email and newsgroups. The last few years have seen vast increases in the darknet’s aggregate bandwidth, reliability, usability, size of shared library, and availability of search engines. In this paper we categorize and analyze existing and future darknets, from both the technical and legal perspectives. We speculate that there will be short-term impediments to the effectiveness of the darknet as a distribution mechanism, but ultimately the darknet-genie will not be put back into the bottle. In view of this hypothesis, we examine the relevance of content protection and content distribution architectures."

The Darknet paper remains essential reading on drm. Even though it was nothing new when released in 2002 - all the main security gurus from Felten to Anderson to Schneier et al had been pointing out the flaws in drm for several years by then - it got a lot of attention, probably because it was written by Microsoft insiders when Microsoft was very much in favour of drm. The label "darknet" helped with the media too.

Which all goes to show that when the likes of Shirky, Felten, Dcotorow, Anderson, Schneier and my 10-year old have been denouncing drm for such a long time now who needs another rant from me on the subject?

Colleges fight high prices

From StarTribune Minneapolis: Textbook economics: Colleges fight high prices

"Until this year, University of Minnesota students taking BioC-3021, a biochemistry class, paid $148 for a single, one-semester textbook.

Then professors got smart.

The faculty agreed on five biochemistry books that would work and, for the first time, asked publishers for bids. They'd take the book that came in the lowest, they said.

As a result, students now have a different textbook -- for $86.

Campuses across the state are taking new, aggressive action to curb textbook prices, a cost often overshadowed by climbing tuition but still likely to add to student debt."

In my book $86 is still too much to be asking students to pay for a textbook.