Google and the future of books

Robert Darnton, Director of Harvard University Library, has a really interesting article, in the New York Review of Books, giving his perspectives on the the proposed settlement agreement in the Google Book case.

"How can we navigate through the information landscape that is only beginning to come into view? The question is more urgent than ever following the recent settlement between Google and the authors and publishers who were suing it for alleged breach of copyright. For the last four years, Google has been digitizing millions of books, including many covered by copyright, from the collections of major research libraries, and making the texts searchable online. The authors and publishers objected that digitizing constituted a violation of their copyrights. After lengthy negotiations, the plaintiffs and Google agreed on a settlement, which will have a profound effect on the way books reach readers for the foreseeable future. What will that future be?

No one knows, because the settlement is so complex that it is difficult to perceive the legal and economic contours in the new lay of the land...

When I look backward, I fix my gaze on the eighteenth century, the Enlightenment, its faith in the power of knowledge, and the world of ideas in which it operated—what the enlightened referred to as the Republic of Letters.

The eighteenth century imagined the Republic of Letters as a realm with no police, no boundaries, and no inequalities other than those determined by talent. Anyone could join it by exercising the two main attributes of citizenship, writing and reading. Writers formulated ideas, and readers judged them. Thanks to the power of the printed word, the judgments spread in widening circles, and the strongest arguments won...

Seen from the perspective of the players, the realities of literary life contradicted the lofty ideals of the Enlightenment. Despite its principles, the Republic of Letters, as it actually operated, was a closed world, inaccessible to the underprivileged. Yet I want to invoke the Enlightenment in an argument for openness in general and for open access in particular...

To descend from the high principles of the Founding Fathers to the practices of the cultural industries today is to leave the realm of Enlightenment for the hurly-burly of corporate capitalism. If we turned the sociology of knowledge onto the present—as Bourdieu himself did—we would see that we live in a world designed by Mickey Mouse, red in tooth and claw.

Does this kind of reality check make the principles of Enlightenment look like a historical fantasy? Let's reconsider the history. As the Enlightenment faded in the early nineteenth century, professionalization set in...

Along the way, professional journals sprouted throughout the fields, subfields, and sub-subfields. The learned societies produced them, and the libraries bought them. This system worked well for about a hundred years. Then commercial publishers discovered that they could make a fortune by selling subscriptions to the journals. Once a university library subscribed, the students and professors came to expect an uninterrupted flow of issues. The price could be ratcheted up without causing cancellations, because the libraries paid for the subscriptions and the professors did not. Best of all, the professors provided free or nearly free labor. They wrote the articles, refereed submissions, and served on editorial boards, partly to spread knowledge in the Enlightenment fashion, but mainly to advance their own careers.

The result stands out on the acquisitions budget of every research library: the Journal of Comparative Neurology now costs $25,910 for a year's subscription; Tetrahedron costs $17,969 (or $39,739, if bundled with related publications as a Tetrahedron package); the average price of a chemistry journal is $3,490; and the ripple effects have damaged intellectual life throughout the world of learning. Owing to the skyrocketing cost of serials, libraries that used to spend 50 percent of their acquisitions budget on monographs now spend 25 percent or less. University presses, which depend on sales to libraries, cannot cover their costs by publishing monographs. And young scholars who depend on publishing to advance their careers are now in danger of perishing.

Fortunately, this picture of the hard facts of life in the world of learning is already going out of date. Biologists, chemists, and physicists no longer live in separate worlds; nor do historians, anthropologists, and literary scholars...

The eighteenth-century Republic of Letters had been transformed into a professional Republic of Learning, and it is now open to amateurs—amateurs in the best sense of the word, lovers of learning among the general citizenry. Openness is operating everywhere, thanks to "open access" repositories of digitized articles available free of charge, the Open Content Alliance, the Open Knowledge Commons, OpenCourseWare, the Internet Archive, and openly amateur enterprises like Wikipedia. The democratization of knowledge now seems to be at our fingertips. We can make the Enlightenment ideal come to life in reality...

Libraries exist to promote a public good: "the encouragement of learning," learning "Free To All." Businesses exist in order to make money for their shareholders—and a good thing, too, for the public good depends on a profitable economy. Yet if we permit the commercialization of the content of our libraries, there is no getting around a fundamental contradiction. To digitize collections and sell the product in ways that fail to guarantee wide access would be to repeat the mistake that was made when publishers exploited the market for scholarly journals, but on a much greater scale, for it would turn the Internet into an instrument for privatizing knowledge that belongs in the public sphere. No invisible hand would intervene to correct the imbalance between the private and the public welfare. Only the public can do that, but who speaks for the public? Not the legislators of the Mickey Mouse Protection Act.

You cannot legislate Enlightenment, but you can set rules of the game to protect the public interest. Libraries represent the public good. They are not businesses, but they must cover their costs. They need a business plan..."Digitize we must." But not on any terms. We must do it in the interest of the public, and that means holding the digitizers responsible to the citizenry.

It would be naive to identify the Internet with the Enlightenment. It has the potential to diffuse knowledge beyond anything imagined by Jefferson; but while it was being constructed, link by hyperlink, commercial interests did not sit idly on the sidelines. They want to control the game, to take it over, to own it. They compete among themselves, of course, but so ferociously that they kill each other off. Their struggle for survival is leading toward an oligopoly; and whoever may win, the victory could mean a defeat for the public good...

As an unintended consequence, Google will enjoy what can only be called a monopoly—a monopoly of a new kind, not of railroads or steel but of access to information. Google has no serious competitors. Microsoft dropped its major program to digitize books several months ago, and other enterprises like the Open Knowledge Commons (formerly the Open Content Alliance) and the Internet Archive are minute and ineffective in comparison with Google. Google alone has the wealth to digitize on a massive scale. And having settled with the authors and publishers, it can exploit its financial power from within a protective legal barrier; for the class action suit covers the entire class of authors and publishers. No new entrepreneurs will be able to digitize books within that fenced-off territory, even if they could afford it, because they would have to fight the copyright battles all over again. If the settlement is upheld by the court, only Google will be protected from copyright liability."

Should Bush administration officials go to jail?

Mark Anderson has been waxing angrily lyrical about the need for the misdeeds of the Bush administration to be punished through criminal prosecutions. He agrees with Paul Krugman in the NYT that Obama has no power or mandate to wipe that particular slate clean.

"Therefore, regardless of the Obama political calculations, we should be resolved, as we have in past similar situations (Iran Contra, Watergate) to put these crimininals to trial. There are so many crimes, it seems almost impossible to list them; I certainly won’t try to here, but will leave it to experts in each department and field to do so...

Here is a simple question: who is responsible for nearly a million civilian deaths in a faked war? There was never, ever a need for an Iraq war; and that statement will stand the test of history. Given its truth, we should not be talking about the few thousand GI deaths as the cost of the war, but should recognize that the United States, without cause or any particular aggression on Iraq’s part, and without any proven concern for its own safety, did cause the deaths of between 600,000 and 1,000,000 civilians in that country.

Let’s see now, is Dick Cheney ready to stand up and pay for this? Exactly how, Mr. Cheney, are you planning on doing that?

One million civilian dead.

And then we have the increasingly-correct pattern I have discovered about the entire Bush administration: it was about nothing smaller or larger than regular old Texan self-dealing. If you are familiar with Texas political history, self-dealing is kind of like getting up in the morning. But, for the rest of us in the Union, self-dealing is unethical and often illegal.

The story of the Bush administration will fall into prosecutorial parts, all of them very large, and all of them worth the effort of pursuit and conviction:

1. Killling of Innocent Civilians. With no cause, and based upon lies and deception, the Bush administration invented a war which led directly to the deaths of about 1 million civilians...

2. Self-dealing. Richard Clarke noted your map showing an Iraq already divided between oil companies nine months before you declared war...

3. Perverting the Justice Department, and Justice, itself. Others have written eloquently about this; it was, generally, mirrored in the EPA, and in other government agencies...

We need to be clear: when you intentionally, flagrantly, break the law, we will come after you. Even if you are or were an elected official.

That is the most well-loved aspect of America, and it is the part of America we most want to keep.

So, Mssr. Obama, please don’t discuss this publicly at any greater length. If I wanted you to be the person who decided whether the law mattered or not, I would have voted for you as the Decider, instead of as the President."

Uk government: bungling snoopers

The Telegraph's editorial writers (not the biggest fans, it has to be said, of Nu Labour's construction of our database nation) have labeled the UK government "bungling snoopers", following the publication of the House of Commons Public Accounts Committee - Second Report on The National Programme for IT in the NHS: Progress since 2006.

"A report from the Commons public accounts committee has again exposed the Government's folly in committing huge sums of taxpayers' money to centralised databases that are neither effective, nor secure, nor even necessary. A £12 billion NHS computer project to link more than 30,000 GPs to nearly 300 hospitals in England is reportedly on the brink of failure after "disappointing progress" in deploying a new care records system. The NHS is forecasting a completion date of 2015 – four years later than originally planned, though the MPs said even this revised schedule looks overly optimistic...

Ministers have also decided to proceed with another IT folly, the ContactPoint system that will hold details of all our children. Well, not quite all. The offspring of "celebrities", including MPs, will be excluded on confidentiality grounds. Why is this necessary if the system is secure, and why are the children of MPs entitled to more privacy than the rest of us? Here is a classic Labour cocktail: the snooping state reaches new, and unacceptable, levels of intrusion but ensures special privileges for the political classes and their celebrity friends. These databases and the new data-sharing laws now before Parliament must be scrapped."

The conclusions and recommendations from the report itself read quite clearly.

"1 Recent progress in deploying the new care records systems has been very disappointing, with just six deployments in total during the first five months of 2008-09...

2 By the end of 2008 the Lorenzo care records software had still not gone live throughout a single Acute Trust...

3 The planned approach to deploy elements of the clinical functionality of Lorenzo (release 1) ahead of the patient administration system (release 2) is untested, and therefore poses a higher risk than previous deployments under the Programme...

4 Of the four original Local Service Providers, two have left the Programme, and just two remain, both carrying large commitments...

5 The termination of Fujitsu's contract has caused uncertainty among Trusts in the South and new deployments have stopped...

6 The Programme is not providing value for money at present because there have been few successful deployments of the Millennium system and none of Lorenzo in any Acute Trust...

7 Despite our previous recommendation, the estimate of £3.6 billion for the Programme's local costs remains unreliable...

8 The Department hopes that the Programme will deliver benefits in the form of both financial savings and improvements in patient care and safety...There is, however, a lot of work to do within the NHS to realise and measure the benefits. Convincing NHS staff of the benefits will be key to securing their support for the Programme, and the credibility of the figures in the benefits statement would be considerably enhanced if they were audited...

9 Little clinical functionality has been deployed to date, with the result that the expectations of clinical staff have not been met...

10 The Department has taken action to engage clinicians and other NHS staff but there remains some way to go in securing their support for the Programme...

11 Patients and doctors have understandable concerns about data security...

12 The Department does not have a full picture of data security across the NHS as Trusts and Strategic Health Authorities are required to report only the most serious incidents to the Department...

13 Confidentiality agreements that the Department made with CSC in respect of two reviews of the delivery arrangements for Lorenzo are unacceptable because they obstruct parliamentary scrutiny of the Department's expenditure. "

So,

• the systems don't work very well if at all
• staff don't like them and don't trust them
• government claims about the functionality and value of the systems are unrealistic
• no one knows how much it is all costing
• the contracts interfere with appropriate auditing of the systems
• data security threats are significant and the government department responsible thinks it "is not practical for it to collect details of all security breaches"

An unbridled success story then.

Boris opposes McKinnon extradition

Boris Johnson has a request for the new US president. He reckons President Obama should put an end to the Justice Department's attempts to extradite Gary McKinnon.

"It is brutal, mad and wrong even to consider sending this man to America for trial. He has been diagnosed as having Asperger's syndrome, for heaven's sake. How can the British government be so protoplasmic, so pathetic, so heedless of the well-being of its own people, as to sign the warrant for his extradition? What kind of priorities do we have these days? We treat a harmless UFO-believer as an international terrorist, and are willing to send him to prison in America, and as for real terrorists – people who bombed and maimed innocent civilians in this country – we seem willing to give their families £12,000 each, on the grounds that they are all "victims" of the troubles in Northern Ireland.

The British government is obviously too feeble to help Mr McKinnon, and even though the courts last week granted him another review, it is plain that the matter will simply drag preposterously and expensively on.

It is time for Barack Obama to show the new leadership the world has been crying out for. It is time for the Commander-in-Chief to tell the US military to stop being so utterly wet, dry their eyes, and invest in some passwords that are slightly more difficult to crack.

In the words of the spiritual with which he began his inauguration ceremony, it is time for the new President to let our people go. To persist with this extradition is so cruel and so irrational that the only plausible explanation is that beneath their suits the US Justice Department and the UK Home Office are occupied by a conspiracy of great green gibbering geckos from outer space."

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.