Update: See also ORG's blog entry from 6th February Sound Copyright conference attacks the “fairy tale” of copyright term extension.In an open letter sent today to David Lammy, UK Minister for Innovation, some of the UK's most eminent economists and intellectual property scholars, have hit out at UK government proposals to consider changing policy on term extension. The letter, which has also been sent to the UK Cabinet Office, Treasury and Culture Minister, voices serious concern at the lack of evidence justifying a change that seems to show the Government prefers special interests over facts.
An extension of 20 years was the focus of discussion during the UK government's own review, led by the former Financial Times Editor Andrew Gowers, who looked at the evidence and concluded that any extension, whether by 5, 20 or 45 years, was a bad idea for consumers, creators and follow-on innovators.
So we certainly shouldn't be falling for the classic 'ask for double and settle for half' rouse today.
Longer copyright terms would put money into the hands of record companies and dead artists' estates, at the expense of royalties to musicians trying to earn money today. Yet the music companies peddle lies about supporting poor artists.
The Open Rights has been telling MEPs in Europe and in the UK that the evidence is against a copyright extension on music. But with a plenary vote set for late march the EU will force-feed it to us anyway unless we let MEPs know. We urge you again - write to your MEPs now!
Friday, February 27, 2009
Academics write to UK minister on copyright term
UK government plan to retain DNA in spite of European court ruling
"in the case of S. and Marper v. the United Kingdom27, the Grand Chamber found that the blanket and indiscriminate nature of the powers of retention by the authorities of the fingerprints, cellular samples and DNA profiles of persons suspected of committing offences but not convicted, as applied in the present case, particularly in respect of a minor, failed to strike a fair balance between the competing public and private interests. Accordingly, the indefinite retention in question constituted a disproportionate interference with the applicants’ right to respect for private life and could not be regarded as necessary in a democratic society."And more detail from the Court's provisional Information Note 114:
"PRIVATE LIFE / VIE PRIVÉETo continue to insist on the retention of the DNA of innocents, in the face of such a damning and comprehensive indictment from the unaminous Grand Chamber of the Court, smacks of a complete lack of respect for private life and the rule of law.
Retention of fingerprints and DNA information in cases where defendant in criminal proceedings is acquitted or discharged: violation.
Conservation des empreintes digitales et données ADN des requérants après la conclusion, respectivement par un acquittement et par une décision de classement sans suite, des poursuites pénales menées contre eux : violation.
S. and/et MARPER - United Kingdom/Royaume-Uni (Nos. 30562/04 and 30566/04)
Judgment/Arrêt 4.12.2008 [GC]
Facts: Under section 64 of the Police and Criminal Evidence Act 1984 (PACE), fingerprints and DNA samples taken from a person suspected of a criminal offence may be retained without limit of time, even if the subsequent criminal proceedings end in that person's acquittal or discharge. In the case before the Court, both applicants had been charged with criminal offences but not convicted. The first applicant, an eleven year old minor, had been acquitted of attempted robbery while in a separate case proceedings against the second applicant for the alleged harassment of his partner had been formally discontinued after the couple reconciled. In view of the fact that they had not been convicted, the applicants asked for their fingerprints and cellular samples to be destroyed, but in both cases the police refused. Their applications for judicial review of that refusal were rejected in a decision that was upheld on appeal. Giving the lead judgment in the House of Lords, Lord Steyn noted that, even assuming there to have been an interference with the applicants' private life, it was very modest and was proportionate to the aim pursued, as the materials were only to be kept for limited purposes and were of no use without a comparator from the crime scene while an expanded database conferred enormous advantages in the fight against serious crime.
Law: (a) Interference: Given the nature and the amount of personal information contained in cellular samples, including a unique genetic code of great relevance to both the individual concerned and his or her relatives, and the capacity of DNA profiles to provide a means of identifying genetic relationships between individuals or of drawing inferences about their ethnic origin, the retention of both cellular samples and DNA profiles in itself amounted to an interference with the applicants' right to respect for their private lives. While the retention of fingerprints had less of an impact on private life than the retention of cellular samples and DNA profiles, the unique information fingerprints contained about the individual concerned and their retention without his or her consent could not be regarded as neutral or insignificant and also constituted an interference with the right to respect for private life.
(b) In accordance with law: Although, in view of its conclusions as to whether the interference was necessary in a democratic society, the Court did not find it necessary to decide whether the wording of section 64 of PACE met the “quality of law” requirements, it nevertheless noted that that provision was far from precise as to the conditions attached to and arrangements for the storing and use of the information contained in the samples and profiles and that it was essential to have clear, detailed rules governing the scope and application of such measures, as well as minimum safeguards.
(c) Legitimate aim: It was accepted that the retention of the information pursued the legitimate purpose of the prevention of crime by assisting in the identification of future offenders.
(d) Necessary in a democratic society: As to the scope of the Court's examination, the question before it was not whether the retention of fingerprints, cellular samples and DNA profiles could in general be regarded as justified under the Convention but whether their retention in the cases of the applicants, as persons who had been suspected, but not convicted, of certain criminal offences, was so justified. The core principles of the relevant instruments of the Council of Europe and the law and practice of the other Contracting States required retention of data to be proportionate in relation to the purpose of collection and limited in time, particularly in the police sector. The protection afforded by Article 8 would be unacceptably weakened if the use of modern scientific techniques in the criminal-justice system were allowed at any cost and without carefully balancing their potential benefits against important private-life interests. Any State claiming a pioneer role in the development of new technologies bore special responsibility for striking the right balance. In that respect, the blanket and indiscriminate nature of the power of retention in England and Wales was particularly striking, since it allowed data to be retained irrespective of the nature or gravity of the offence or of the age of the suspect. Likewise, retention was not limited in time and there existed only limited possibilities for an acquitted individual to have the data removed from the nationwide database or to have the materials destroyed. Nor was there any provision for independent review of the justification for the retention according to defined criteria. The risk of stigmatisation was of particular concern, with persons who had not been convicted of any offence and were entitled to the presumption of innocence finding themselves treated in the same way as convicted persons. Retention could be especially harmful in the case of minors such as the first applicant, given their special situation and the importance of their development and integration in society. In conclusion, the
blanket and indiscriminate nature of the powers of retention, as applied in the applicants' case, had failed to strike a fair balance between the competing public and private interests, and the respondent State had overstepped any acceptable margin of appreciation in that regard. Accordingly, the retention constituted a disproportionate interference with the applicants' right to respect for private life and could not be regarded as necessary in a democratic society.
Conclusion: violation (unanimously).
Article 41 – Finding of a violation constituted sufficient just satisfaction in respect of non-pecuniary damage. Respondent State to implement, under Committee of Ministers' supervision, appropriate general and/or individual measures."
Independent schools encourage opting out of ContactPoint
"The Independent Schools Council (ISC), which represents 1,280 fee- paying schools, has written to its members describing the new database, ContactPoint, as an “unjustified interference in the privacy of the majority of children and their carers”.David Lyscom, chief executive of the ISC, wants schools to write to all parents warning them that ContactPoint “will put some children at risk through data theft or loss”. The ISC also warns parents that the database will contain such poor-quality data that it may create a “misleading or unhelpful” impression of their child."
CPS refuse to prosecute McKinnon
"British prosecutors said Thursday they would not bring criminal charges against a London man accused of hacking into U.S. military computers. The decision is a blow to Gary McKinnon's attempts to avoid extradition to the United States.
U.S. prosecutors allege that McKinnon, 42, broke into 97 computers belonging to NASA, the Department of Defense and several branches of the military soon after the Sept. 11, 2001, attacks. McKinnon says he was looking for evidence of UFOs."
UN anti-blasphemy measures have sinister goals, observers say
"Islamic countries Monday won United Nations backing for an anti-blasphemy measure Canada and other Western critics say risks being used to limit freedom of speech."Thanks to Glyn Moody via Twitter for the pointer.
Thursday, February 26, 2009
Microsoft sue Tomtom for patent infringement
"Microsoft sued GPS producer TomTom for patent infringement on Wednesday, claiming the Dutch company is using patented Microsoft technology without properly compensating the software giant."Update: Glyn Moody has more details.
ID database breaches
Thanks to HJ Affleck at FIPR for the pointer.
Pirate Bay prosecution not going too well
"he big, long and extremely mediatized trial filed on 31 January 2008 by Swedish prosecutors against the four Pirate Bay founders for "promoting other people's infringements of copyright laws" started at Stockholm's District Court, on 16 February 2009.As usual EDRI-gram is packed with important stories ranging from Italian censorship plans to the EU Commission's disbanding of their group of data protection experts and the UK's ignoring of the Commissions complaints about Phorm and the latest on the French 3 strikes law. RecommendedThe first day of the trial was dedicated to the opening statements of the prosecution and the defendants, the latter denying any criminal act. Prosecutor Håkan Roswall presented the claims of the plaintiffs Warner Bros, MGM, EMI, Colombia Pictures, 20th Century Fox, Sony BMG and Universal and spent most of the morning trying to describe how the Pirate Bay works suggesting it was a commercial organization with Carl Lundström as a shareholder and financier of the company. The prosecutor made a presentation of a series of movie, music and game downloads "coordinated by The Pirate Bay" before 2006. He continued trying to explain the change from a seed status to that of a peer as part of the evidence previously gathered by the plaintiffs.
The civil parties represented by IFPI and MPAA expressed the intention to ask for 11 million euro damages.
The second day of the trial started with a big victory for The Pirate Bay founders with the dropping out of most part of the accusations against them. The prosecutor announced the defendants would not be accused of "assisting copyright infringement" changing the accusation into "assisting making available copyright material".
The prosecutor was unable to prove that the .torrent files introduced as evidence were actually using The Pirate Bay's tracker. Furthermore, he has shown to be technically unprepared and failed to explain the function of DHT which allows for so called "trackerless" torrents. This means the screenshots the prosecution provided as evidence did not necessarily belong to The Pirate Bay's tracker. Pirate Bay claimed it did not break the law because it did not host or disseminate copyright-infringing content but only links to that content and reproached the prosecution, the police and the music industry of not understanding the technology. According to Fredrik Neij, the entire accusation was based on a technical misunderstanding.
On 18 February, the prosecution asked for about 11 million euro compensation and damages on the basis that the defendants should have obtained worldwide licences for the content it distributed. The defence rejected any discussion related to damages considering there had been no damage. "EU directive 2000/31/EC says that he who provides an information service is not responsible for the information that is being transferred. In order to be responsible, the service provider must initiate the transfer. But the admins of The Pirate Bay don't initiate transfers. It's the users that do and they are physically identifiable people. They call themselves names like King Kong," was defence lawyer Samuelsson's statement to the court.
"According to legal procedure, the accusations must be against an individual and there must be a close tie between the perpetrators of a crime and those who are assisting. This tie has not been shown. The prosecutor must show that Carl Lundström personally has interacted with the user King Kong, who may very well be found in the jungles of Cambodia," the lawyer added.
The plaintiffs insited on The Pirate Bay's behaviour that refused to withdraw the .torrent links from their index, except for the cases when the content did not correspond with the one announced by the user placing the torrent file. In the prosecution's opinion, this would make The Pirate Bay more than a simple technical intermediary.
The defense argued that uploading a torrent does not imply that the copyrighted files are actually 'available', as the torrent has to also be seeded and that, on the other hand, torrent files are not linked exclusively on The Pirate Bay and can be found through other search engines, including Google.
Two of the defendents were heard on the fourth day, the technician Frederik Neij and the administrator Gottfrid Svartholm Warg who were both pretty much sticking to their initial position. The day did not bring very much change. Neij proved that it was possible to create a torrent file and host it somewhere else, like on TorrentSpy using the trackers opened by The Pirate Bay to distribute the files, in which case The Pirate Bay cannot know what is exchanged. In his opinion, the prosecusion had not succeeded in proving that the incriminated files had been actually downloaded on The Pirate Bay.
The lawyer of the movie industry tried to show that The Pirate Bay had an active role in the choice of the content presented by its users and asked Gottfrid Svartholm Warg whether the site had withdrawn content related to child pornography. The administrator replied that they had notified the police on such torrent files and they had retired them at the request of the police. "We can't do investigations of our own. And if the police say we should remove a torrent, we will," he said.
Peter Sunde was interrogated on Friday morning. The strategy of the prosecusion seemed to be clearer than during the first days being focused on trying to prove that The Pirate Bay had been created with the purpose of gaining money from "pirating". The prosecutor tried to show that The Pirate Bay was actually managed by a hierarchical organization with a commercial purpose. However no material evidence was brought to support this idea. When asked what the purpose of The Pirate Bay was Sunde answered: "It is to enable users to share their material with others." "Even though it is copyrighted?" questioned Danowsky. "That can sometimes be the sad consequences," Peter replied.
The defendant stated to the court that in his opinion the entire trial was a political one and that the reason for which the plaintiffs brought the case against The Pirate Bay was not the fight against illegal downloading of their works but a a fight to preserve the monopoly on the distribution means.
The trial started again on 24 February when the prosecutor also added to the charges that the site allowed its users to upload torrents that it further on stored. Magnus Mårtensson, a lawyer for the IFPI testified during the morning but the evidence brought by him consisted only of screenshots and the witness also admitted having difficulties in answering some technical questions.
Both him and policeman Magnus Nilsson of the Anti-Piracy Office who was the next witness for the prosecution were unable to bring forth any real evidence that the Pirate Bay trackers were actually used for the downloads investigated.
Mårtensson admited that he had no evidence of having any contact with The Pirate Bay's tracker during the downloading he was claiming to have made from the site. Nilsson was made to admit that the actual downloading of the pirated files happened outside of The Pirate Bay.
The trial is supposed to last until the 4 March 2009. We will present the conclusions of the trial in our next newsletter.
The Pirate Bay trial: 1st day under the sign of boredom (only in French, 16.02.2009)
http://www.numerama.com/magazine/12023-Proces-de-The-Pirate-Bay-1ere-j...Half of Pirate Bay case dropped in courtroom drama (17.02.2009)
http://www.out-law.com//default.aspx?page=9803The Pirate Bay cries victory after the dropping out of some charges ! (only in French, 17.02.2009)
http://www.numerama.com/magazine/12041-The-Pirate-Bay-crie-victoire-ap...The Pirate Bay (day 3): "We are winning on legal principles" (only in French, 18.02.2009)
http://www.numerama.com/magazine/12066-The-Pirate-Bay-jour-3-Nous-gagn...Day 3 - The Pirate Bay's 'King Kong' Defense (18.02.2009)
http://torrentfreak.com/g-defense-090218/The Pirate Bay (day 4): "Are you a coward, Fredrik Neij ?" (only in French, 19.02.2009)
http://www.numerama.com/magazine/12087-The-Pirate-Bay-jour-4-Etes-vous...Day 4 - Pirate Bay Defense Calls Foul Over Evidence (19.02.2009)
http://torrentfreak.com/day-4-pirate-bay-defense-calls-foul-over-evide...The Pirate Bay (day 5): Peter Sunde counter-attacks (only in French, 20.02.2009)
http://www.numerama.com/magazine/12100-The-Pirate-Bay-jour-5-Peter-Sun...Pirate Bay Trial Day 5: Peter's "Political Trial"(20.02.2009)
http://torrentfreak.com/pirate-bay-trial-day-5-peters-political-trial-...Pirate Bay Trial Day 7: Screenshots for Evidence (24.02.2009)
http://torrentfreak.com/pirate-bay-trial-day-7-screenshots-for-evidenc...EDRI-gram: Pirate Bay in legal battle with IFPI (11.02.2009)
http://www.edri.org/edri-gram/number7.3/piratebay-ifpi-battle"
Wednesday, February 25, 2009
Supreme Court sides with Rambus v FTC
Short version of the story - Rambus hid the fact that it was patenting a technology whilst lobbying to have it adopted as an industry standard by the Joint Electron Device Engineering Council. Once the standard was approved they set about suing their competitors for patent infringement. One of the primary defences was that the company acted anti-competitively. The FTC agreed and got involved in the case by taking an antitrust action against Rambus. By refusing to review the case after the Appeal Court had sided with Rambus the Supreme Court are effectively saying their was no breach of antitrust regulations.
The ever reliable ScotusBlog characterises the decision thus:
"Among the cases the Court declined to hear was an appeal by the Federal Trade Commission (not supported by the Solicitor General) testing whether a company’s use of deception to gain a monopoly is a form of harm outlawed by antitrust law. The issue arose in a case involving alleged efforts to gain a monopoly by influencing the setting of a standard for memory components of computers and other electronic devices. The Court made no comment in denying review in FTC v. Rambus Inc. (08-694)."
Tuesday, February 24, 2009
Eircom deal [was] may have been 3 strikes plus...
Update: Eircom has said that the company will not block any websites without a proper court order.
Monday, February 23, 2009
New Zealand delay implementation of 3 strikes law
It would be really interesting to find out what the killer soundbite was that finally got through to the politicos in this instance. It could be useful in this part of the world.
Update: the former minister who pushed the law through parliament is apparently not impressed about it not getting implemented.
Quote of the day
Medina report on copyright rejected by EU parliament
Wednesday, February 18, 2009
Apple iPhone jailbreak and card counting
On the one hand someone's built a card counting app for the iPhone which Nevada regulators have warned casinos about. It's not illegal to card count to beat the casino's odds but it is illegal to use an electronic device to do it. On the other hand Apple is saying that jailbreaking the iPhone breaches the DMCA and infringes Apple's copyright. The EFF have some further details on the jailbreaking and has consistently campaigned for a DMCA exception for mobile phone drm lockpicks.
Friday, February 13, 2009
Intellectual property and the diamond skull
EU legal affairs committee approve copyright term extension
"The usual guff about protecting poor performers is being trotted out and the music industry are, naturally, very gracious in victory. The ceaseless surreality of policy making in this area is wearing me down. I need to get out of IP geekery and start doing something a bit more productive with that portion of my time.Music copyright to be extended to 95 years
Copyright term for music recordings must be extended from 50 years to 95 years, says legislation approved on Thursday by the Legal Affairs Committee.
Increasing the term of copyright protection would ensure that performers and producers continue to receive royalties for 95 years from the first publication or performance of their song, according to a Commission proposal backed by the committee.
Ensuring that copyright extension benefits performers
The approved report, drafted by Brian Crowley (UEN, IE), amends existing legislation to increase the copyright protection for music recordings to 95 years.
To ensure that performers fully enjoy the additional royalties deriving from copyright extension, the committee amended the original text so as to prevent the use of previous contractual agreements to deduct money from the additional royalties.
A fund for session musicians
A dedicated fund for session musicians was also approved by the committee. This fund would be financed by contributions from producers, who would be obliged to set aside for this purpose, at least once a year, at least 20% of the revenues gained from the proposed extension of copyright term.
Committee members also amended a provision relating to this fund so as to give collecting societies, which represent performers' and producers' interests, the right to administer the annual supplementary remuneration.
Copyright extension for audiovisual works, too?
The committee also asked the Commission to launch an impact assessment of the situation in the European audiovisual sector by January 2010, with a view to deciding whether a similar copyright extension would benefit the audiovisual world.
Review legislation after three years
Finally, MEPs ask the Commission to submit three years after the entry into force of the new legislation, and every four years thereafter, an assessment of whether the copyright extension has in fact improved the social situation of performers.12/02/2009In the chair: : Giuseppe GARGANI (EPP-ED, IT)Procedure: co-decision, 1st reading
Plenary vote: March II (Strasbourg)"
What's the law?
"Daíthí sums up very nicely:
- The Government's response to that recommendation was presented to Parliament in March 2008, CM 7320. It stated as follows:
"35. Her Majesty's Stationery Office (HMSO) and the Statutory Publications Office (SPO), which produces the Statute Law Database, are to work together to create a single, powerful and free to access online legislation service. The launch of the SLD has been a milestone in government's online legislation publishing.36. Over the last two years HMSO, via the OPSI website (www.opsi.gov.uk) has embarked on wide ranging improvements to how legislation is published online, taking account of key usability features for layout and navigation. This work is being undertaken as part of 'The Transforming Legislation Publishing Programme'. The aim has been to present legislation in the most accessible and usable way, whilst maintaining the traditional strengths of immediacy and accuracy. One of the benefits is that it affords the opportunity to provide links to related information. Initially these links will be to the Explanatory Note for Acts or the Explanatory Memorandum for Statutory Instruments. Alongside this is also published an ATOM feed for the piece of legislation. This provides visitors with an easy way to keep up to date with subsequent additions to the website, like the addition of Explanatory Notes for an Act, and also the enacting or making of other related legislation such as Commencement Orders or, longer term, amending legislation. In future HMSO will be adding explicit links to Commencement Orders, and where legislation implements an EU Directive, a link also to that Directive.37. HMSO/OPSI and SPO will continue to work together and with government's online legislation visitors, to improve the service and ensure that UK legislation is available in a high quality and straight forward terms, with a freely available and powerful search."- The aim is laudable, indeed imperative, but there is a long way to go and meanwhile the volume of legislation advances apace. It is a serious state of affairs when the relevant legislation is not accessible, the Government's own public information website (OPSI) is incomplete and the prosecution in an excise case unintentionally misleads the court as to the relevant Regulations in force. Although the problem has in this case arisen in an excise context, it is part of a wider problem of substantial constitutional importance."
The government is churning out laws like they're going out of fashion, in secondary legislation, and hiding them in places not even lawyers, let alone ordinary individuals can find. So the next time you hear some minister mouthing pernicious nonsense like "nothing to fear nothing to hide" or "it's needed to fight terrorism" just ask yourself if you can really be sure you haven't broken any laws today."Toulson LJ makes four points, which I paraphrase as follows:
- The majority of legislation is secondary legislation.
- The overall volume of legislation has increased and is still increasing.
- The legislation is spread across various statutes and statutory instruments.
- There is no straightforward way for an individual to find out what the law in force is."
Second Life, the academic and the Skinninggrove jetty
Find more videos like this on The Digital Village Social Network
Teachers TV did a 20 minute piece about the project too, largely focused on the work of the secondary school kids - photographing the old jetty from all angles, learning how to use Second Life, working together designing and constructing the model of the proposed new jetty in Second Life - available at Steve Thompson's blog.
Now I've long been a skeptic about all the hype surrounding Second Life and education. I think the really valuable ed tech stuff is happening elsewhere and all around us. But this is a great example of how virtual worlds, with a bit of thought and effort, can be used in practical ways in education, rather than assuming - like that old chestnut about 'a computer in every classroom' - that it will somehow work miracles just by being there. Modern technology in education, in this case, facilitating community service, photography, observation, analysis, design, development, ICT, engineering, decision making, cooperation - engaging a variety of practical skills and cognitive processes. Great stuff!
Thanks to my colleague Steve Walker for the link.
Thursday, February 12, 2009
From data retention to local authority spying
"1. This Directive aims to harmonise Member States’ provisionsA Home Office minister rolled out the old soundbites about fighting terrorism again (though not the "war on terror" now we're in post Bush ObamaWorld). But what exactly is it about routine local authority access to communications data that serves the "purpose of the investigation, detection and prosecution of serious crime, as defined by each Member State in its national law"? And has the government not learned anything at all from the routine controversial use of the Regulation of Investigatory Powers Act by certain councils to spy on local residents?
concerning the obligations of the providers of publicly available
electronic communications services or of public communications
networks with respect to the retention of certain data which are
generated or processed by them, in order to ensure that the data
are available for the purpose of the investigation, detection and
prosecution of serious crime, as defined by each Member State in
its national law."
Thanks to HJ Affleck via the FIPR list for the pointer to the Telegraph article.
PS Just worth noting the kinds of data we're talking about here - all phone-calls, email and internet traffic - from article 5 of the directive:
"1. Member States shall ensure that the following categories ofUpdate: Having now read the draft regulations I expect the Telegraph writer is concerned about
data are retained under this Directive:
(a) data necessary to trace and identify the source of a
communication...
(b) data necessary to identify the destination of a
communication...
(c) data necessary to identify the date, time and duration of a
communication...
(d) data necessary to identify the type of communication...
(e) data necessary to identify users’ communication equipment
or what purports to be their equipment...
(f) data necessary to identify the location of mobile communication
equipment"
"Access to retained dataThe government is also going with a 12 month retention period rather than the significantly shorter periods suggested by ISPs and civil rights organisations.
7. Access to data retained in accordance with these Regulations may be obtained only—
(a) in specific cases, and
(b) in circumstances in which disclosure of the data is permitted or required by law."
"The retention periodUpdate: Councils have had the facility to spy under RIPA for years. So the Telegraph is conflating several things in this story and not particularly accurately. I was a bit quick to jump on the "criticise the idiots in government" bandwagon again. The regulations are not good from a data retention perspective. Period. The council spying thing was a bit of a red herring here.
5. The data specified in the Schedule to these Regulations must be retained by the public communications provider for a period of 12 months from the date of the communication in question."
Wednesday, February 11, 2009
Authors Guild object to Kindle 2 read aloud feature
"Some publishers and agents expressed concern over a new, experimental feature that reads text aloud with a computer-generated voice.This reminds me of the license which came with the 1st edition e-book version of Alice's Adventures in Wonderland (a book in the public domain) which read:"They don't have the right to read a book out loud," said Paul Aiken, executive director of the Authors Guild. "That's an audio right, which is derivative under copyright law."
An Amazon spokesman noted the text-reading feature depends on text-to-speech technology, and that listeners won't confuse it with the audiobook experience. Amazon owns Audible, a leading audiobook provider."
"This book cannot be read aloud."(No, I'm not making it up.).
Lobbyists try to get copyright into Obama's stimulus package
"Hollywood’s lobbyists are running all over the Hill to sneak in a copyright filtering provision into the stimulus package. The amendment allow ISPs to “deter” child pornography and copyright infringement through network management techniques. The amendment is very, very controversial for a couple of reasons:Public Knowledge is suggesting people start calling their senators but I can't see abstract intellectual property or privacy debates getting in the way of the need to do something... it's highly unlikely to be a deal breaker in these recessionary times.
First, infringement can’t be found through “network management” techniques. There are legal uses for copyrighted works even without permission of the owner.
Second, it would require Internet companies to examine every bit of information everyone puts on the Web in order to find those allegedly infringing works, without a hint of probable cause. That would be a massive invasion of privacy, done at the request of one industry, violating the rights of everyone who is online."
Update: the letter PK is suggesting citizens send to their representatives:
"It is my understanding that your office has been asked to amend the part of the stimulus package that deals with public grants to spur broadband deployment. Senator Feinstein has proposed a "noncontroversial" amendment that would allow Internet Service Providers to inspect its subscribers' Internet connections to filter out copyright infringement, under the guise of "network management." Copyright filtering is outside of the capabilities of network management, would be a massive invasion of privacy and would prohibit my lawful use of copyrighted works -- for purposes of education, criticism, and commentary.Update 2: the copyright amendment hasn't passed (yet at least).
This amendment is very controversial. I urge you to oppose this copyright filtering amendment to the broadband stimulus."
Tuesday, February 10, 2009
Apple v PsyStar update
Ars Technica, cnet and ComputerWorld all have reports.
Apple had originally sued PsyStar for using and selling the OS X Operating System (“Mac OS”) in clone machines. The judge, Hon. William Alsup, then threw out PsyStar's antitrust claims against Apple in response to the original lawsuit (see Justia for the details). So PsyStar came up with the rather clever copyright misuse argument - 'we bought the Mac OS from Apple and they're saying we can't play with it unless we buy their hardware to use with it too.'
"PsyStar alleges that Apple has improperly leveraged its Mac OS copyrights in order to gain exclusive rights with respect to Mac OS-compatible computer hardware systems not granted in the Mac OS copyrights, in two general respects.Apple argued in response that PsyStar lost with the antitrust tactics and shouldn't be allowed a second chance to concoct a case on copyright misuse grounds. Apple also argued that copyright misuse could only be used by PsyStar as a defense against copyright infringement and not as a counterclaim against Apple. The judge is clear in rejecting this argument (page 4, line 17):
First, PsyStar alleges that Apple has wrongfully extended the scope of its Mac OS copyright via its End User License Agreement (“EULA”), which specifically required that consumers install Mac OS only on Apple-labeled computers, as well as by embedding certain technical barriers to interoperability in Mac OS — kernel panic and infinite loops (Countercl. ¶¶36–51).2
Second, PsyStar alleges that Apple is leveraging its Mac OS copyrights by improperly asserting claims under the Digital Millennium Copyright Act, 17 U.S.C. 1201 et seq. (“DMCA”). PsyStar alleges, in effect, that Apple is improperly extending its Mac OS copyright into the computer hardware market by intimidating potential competitors into avoiding the market with dubious DMCA claims (Countercl. ¶¶ 52–56).
The proposed counterclaim asserts four claims for relief, all of which seek a declaratory judgment that Apple’s Mac OS copyrights are unenforceable. The first claim alleges copyright misuse based on Apple’s exclusive licensing of Mac OS in its EULA. The second claim alleges copyright misuse based on Apple’s use or threat of DMCA claims against potential competitors for Apple’s Mac OS -based computers. The third claim alleges a violation of California’s unfair competition laws predicated on the alleged copyright misuse related to the EULA. The fourth claim alleges a violation of California’s unfair competition laws predicated on the alleged copyright misuse related Apple’s DMCA claims."
"Apple contends that copyright misuse may only be asserted as a defense, not as a counterclaim. This order is unconvinced, however, that misuse may never be asserted as a counterclaim for declaratory relief. PsyStar may well have a legitimate interest in establishing misuse independent of Apple’s claim against it, for example, to clarify the risks it confronts by marketing the products at issue in this case or others it may wish to develop. Moreover, if established, misuse would bar enforcement (for the period of misuse) not only as to defendants who are actually a party to the challenged license but also as to potential defendants not themselves injured by the misuse who may have similar interests."So not only Psystar, but other organisations, not party to the lawsuit, might get the right to sell computers with the Mac OS, if PsyStar wins the case. The judge mentioned in the earlier part of the order that "Few competitors, if any, other than PsyStar, however, currently sell computers compatible with Mac OS" and the Apple legal team were presumably attempting to bury that particular can of worms with the efforts to close of the copyright misuse counterclaim. He draws parallels to patent misuse which can be used in counterclaims and "finds no reason to reject plaintiff’s misuse counterclaims as necessarily futile."
Interestingly enough the Grokster case get a mention in a footnote if only to give Judge Alsup the opportunity to disagree with part of one of the decisions in that protracted saga which suggested copyright misuse could not be used as the basis of a counterclaim.
"Insofar as other district courts have concluded that the doctrine may not be asserted as a counterclaim, this order respectfully disagrees.3It has to be said that the facts were completely different in that instance and I would have thought, therefore, clearly distinguishable.
[...]
3 See, e.g., Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 269 F. Supp. 2d 1213, 1225–26 (C.D. Cal. 2003), aff’d, 380 F.3d 1154, vacated on other grounds by Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005); Ticketmaster L.L.C. v. RMG Technologies, Inc., 536 F. Supp. 2d 1191, 1199 (C.D. Cal. 2008)."
"This order... rejects the argument that misuse may never be asserted as a counterclaim and declines to find PsyStar’s misuse counterclaims futile on that basis.Apple also argued the precedent the claimed was set in the Triad case:
Apple further argues that amendment would be futile because the proposed amended counterclaims fail to plead sufficient facts to support the claim. In its proposed amended counterclaims, PsyStar alleges that Apple leveraged Mac OS copyrights to secure exclusive rights not within the scope of the monopolies granted by those copyrights, i.e., to Mac OS compatible computer hardware systems. The complaint avers that Apple accomplished this through its EULA, through allegedly spurious litigation and by other means.
Apple responds that it is within its rights to determine whether, how or by whom its software is reproduced and how it is to be licensed, distributed or used. This may ultimately prove to be true. Apple, however, identifies no reason to bar the claims as matter of law at the pleading stage. This order declines to find the claims futile."
"Apple cites Triad Systems v. Southeastern Express Company, 64 F.3d 1330 (9th Cir.1995). Triad was a seller of computer systems that performed sales, inventory and accounting tasks for auto parts stores... Triad and Southeastern competed in the business of servicing Triad computers."Southeastern argued copyright misuse but the court sided with Triad. But Judge Alsup here says the Triad case is not conclusive in the matter of barring access to a copyright misuse counter claim. Apple also argued that the judge said Psystar had no case on antitrust grounds so they should have no case on copyright grounds either but the judge gives that argument short shrift:
"Apple also cites language from the November 2008 order in this case granting Apple’s motion to dismiss PsyStar’s counterclaims. The order addressed the antitrust issues then before the court; it did not opine one way or the other on the merits of Apple’s instant copyright claims or PsyStar’s misuse allegations. For all of these reasons, PsyStar’s motion for leave to amend is granted with respect to the proposed misuse counterclaims."He does, however, hand Apple a small victory too at the end of the decision:
"PsyStar’s single-product-market theory was previously rejected (Dkt. No. 33). Plaintiff fails otherwise to identify an actual or incipient violation of antitrust laws or the spirit thereof — harm to competition. PsyStar argues that the alleged misuse is, “at the least, unfair in that Apple has attempted (and continues to attempt) to extend the reach of its copyrights by tying them to computer hardware not otherwise protected by the Copyright Act” (Reply at 12). It fails to explain, however, how this conduct constitutes harm to competition or a violation of the spirit of the antitrust laws. In the context of single-firm conduct, tying requires monopolization.So the clone maker's attempts to resurrect unfair competition under the cloak of misuse of copyright failed. Good news for Apple since it theoretically undermines PsyStar's case - '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'.
PsyStar has identified none — other than the limited monopolies inherent in the copyrights themselves. The Section 17200 claims, therefore, are futile. PsyStar’s motion for leave to amend the Section 17200 claims is denied."
In practical terms if the copyright misuse case prevails it opens the way for clone makers to install the Mac OS, which is what Apple has successfully avoided since the inception of the company. Yet such avoidance, according to this judge at least, has not offended competition laws. There are clues in the order suggesting that the judge may ultimately side with Apple but it remains one to watch. After all if Microsoft are guilty of tying their browser to their operating system in a way that breaches competition laws, as suggested by the EU antitrust authorities, then surely Apple, a company which has actively and aggressively pursued such bundling practices, must be at least equally culpable?
See the order in full below (or head over to a slightly larger font, full browser window version at Justia).
HP Lexicon and RDR books withdraw appeal
Monday, February 09, 2009
Del Pierro sues Facebook for defamation
"One of the world's most famous soccer players, Alessandro del Piero of the Juventus club in Italy, is said to be suing Facebook.He is distressed because of a Facebook profile that purports to be his (it features his name and image) and carries links to Nazi propaganda sites."
DWP voice stress detector software
Thanks to David Gerard via the ORG list for the pointer to this one too.
Why protesters are now stalkers
"One of the most heartbreaking articles I have ever read was a response column published recently in the Guardian. Edward Countryman explained that he was writing on behalf of his wife, Evonne Powell-Von Heussen, "who could not bear to face" the unintended consequences of the thing she had created.Thanks to David Gerard via the ORG list for the pointer.For 17 years she was the victim of an aggressive stalker, who attacked her and held her captive. She spent five years running a brave and vigorous campaign for an anti-stalking law, to ensure that nobody else's life could be ruined as hers was. Now she has seen how that law – the 1997 Protection from Harassment Act – is being used for a completely different purpose. She is so upset by the "perversion of its intentions" that she cannot bring herself to confront it.
Powell-Von Heussen "took great care that the act would protect frightened, endangered individuals from their assailants, and only such persons". But the first three people to be prosecuted under it were all peaceful protesters. Since then it has been used by the police and courts to criminalise almost all forms of dissent...
Having discovered what a useful tool it had become, in 2005 the government amended the act in a way that seemed deliberately to target peaceful protesters and smear them as stalkers. Originally you had to approach one person twice to be "pursuing a course of conduct"; now you need only approach two people once. In other words, if you hand out leaflets to passers-by which contain news that might alarm or distress them, that is now harassment. The government slipped in a further clause, redefining harassment as representing to "another individual" (ie anyone) "in the vicinity" of his or anyone else's home (ie anywhere) "that he should not do something that he is entitled or required to do; or that he should do something that he is not under any obligation to do". This is, of course, the purpose of protest. These amendments, in other words, allow the police to ban any campaign they please. Surreptitiously inserted into the vast and sprawling 2005 Serious Organised Crime and Police Act, they were undebated in either chamber of parliament."
Thursday, February 05, 2009
AP claim copyright infringement on Obama image
Yet just a couple of weeks ago, James Dazinger at least, seemed to think that the photo had been taken Reuters photographer, Jim Young. I note though that he's since blogged that the photo was taken by freelance photojournalist Manny Garcia for AP.
Update: It appears Manny Garcia wasn't a member of AP staff when he took the photo and he, not AP, may be the copyright owner.
Update: See: http://prawfsblawg.blogs.com/prawfsblawg/2009/01/a-question-for-ip-folks.html and http://madisonian.net/2009/01/21/fairey-obama-and-fair-use/ for informed commentary.
Google Latitude
"Millions of people will be able to track each and every move by friends and family through their mobile phones, thanks to a new feature launched by Google yesterday.The new system dubbed “Latitude” uses a digital map to show automatically exactly where a loved one is at any time, sometimes pinpointing their location to a few metres. Worried parents will be able to check up on where their children have got to after school, friends can meet for a quick drink if they see they are nearby and spouses will be able to see if their partners really are working late at the office.
Google said that Latitude was an opt-in feature, meaning that both parties have to consent to being spied on. But privacy campaigners said they were appalled by the idea, and children’s groups said the Government should intervene and look into whether the system was fully secure."
White House Lawyers Look to Limit Commercial Use of President
"Barack Obama’s popularity makes him a marketer’s dream. Now, the honeymoon may be over for those trying to profit from his appeal.White House lawyers want to control the use of the president’s image, recognizing the worldwide fascination about Obama’s election, First Amendment free-speech rights and easy access to videos and photos on the Web.
“Our lawyers are working on developing a policy that will protect the presidential image while being careful not to squelch the overwhelming enthusiasm that the public has for the president,” White House spokeswoman Jen Psaki said."
ACTA draft leaks: nonprofit P2P faces criminal penalties
"It's becoming clear that the Anti-Counterfeiting Trade Agreement is not, as backers have suggested, just a minor tuneup to worldwide intellectual property law, one done for the purpose of cracking down on fake DVD imports or Coach handbag ripoffs. Such a law—one that amounted essentially to some streamlining and coordination in the fight against actual pirates—might well be hashed out between nations operating in secret. But a treaty that seeks to apply criminal penalties to peer-to-peer file-sharing?
[...]
Based on sources and leaked documents, Knowledge Ecology International now asserts that ACTA drafts are in fact "formally available to cleared corporate lobbyists and informally distributed to corporate lawyers and lobbyists in Europe, Japan, and the US."As for what's in these drafts, which are too secret to be seen by the public paying the negotiators' salaries, it's a long and mostly boring list of items intended to stop or slow shipments of counterfeit goods. But the ACTA proposals currently include language that would make copyright infringement on a "commercial scale," even when done with "no direct or indirect motivation of financial gain," into a criminal matter."
ID cards are go
"The first UK ID cards have already been issued - but no UK police officers or border guards have any way of reading the data stored on them.Update: Henry Porter has a story in yesterday's Guardian indicating what a mess the issuing of ID cards and the correction of errors is going to be in practice. A US citizen married to a UK citizen traveled to an ID card centre and paid nearly £600 for a "premium service" to get her fingerprints and face scan and other details taken for her ID card. She waited for hours before eventually being told the system had crashed and she should go home and wait for the card in the post. It arrived eventually with a mistake regarding her citizenship of the US. Then started the process of trying to get it put right, which as well as spending hours waiting in phone cues to different places, dealing with unhelpful people on a spectrum from those who tried to be nice through those who thought it was funny to the downright rude; in addition to sending the error ridden ID card along with her passport off to get the card corrected. Both seem to have disappeared into a black hole and the woman concerned is now uable to travel abroad since she has no passport. And these were people who were prepared to volunteer early, pay £600 and just get no with it. What a shambles. I hope the couple concerned gt their problems sorted out soon.Currently no police stations, border entry points or job centres have readers for the card's biometric chip, the Identity and Passport Service (IPS) revealed in response to an FoI (Freedom of Information) request by silicon.com about the £4.7bn identity cards scheme.
The news comes in spite of the first ID cards being issued to foreign nationals in November last year, with the IPS expecting to issue 50,000 ID cards by April this year."
Wednesday, February 04, 2009
Copyright, monopoly and Google Book
"I'll start with a confession: I was wrong about the Google Books Project. And my wrongness is underscored by just how right Siva Vaidhyanathan--whose worries I dismissed at the time as contrarian library-fetishization--was. It's true that a happy ending could still emerge, but if it does, it's likely to be in spite of Google, and in the teeth of its opposition. My mistake is perhaps instructive, because it exemplifies some cognitive biases that bedevil all of us: wishful thinking, overvaluing the causal impact of character traits (and individual agency, generally) relative to structural tendencies, and an unfortunate tendency to take sides--if only affectively, subconsciously identifying one's own interests with those of one party or another--when powerful entities clash."Thanks to Manon Ress via hte A2K list for the pointer.
Google execs face criminal charges over disabled teen abuse video
"The executives face charges of defamation and failure to exercise control over personal data. They follow a two-year investigation by Italian authorities into footage uploaded onto Google Video that showed a disabled teen being disparaged by peers. Google's Paris-based Global Privacy Counsel Peter Fleischer, Senior Vice President and Chief Legal Officer David Drummond, former Chief Financial Officer George Reyes, and a former London-based Google Video executive were charged. The charges carry a maximum sentence of 36 months.The Italian prosecutor is basing his case on a law which says content providers are responsible for 3rd party content. However this case turns out Italy loses. A conviction will presumably lead to Google blocking access from Italian IP addresses and an acquittal leaves the authorities (though possibly not the prosecutor, who would presumably be riding the wave of Giuseppe Public's moral outrage) looking less-than-sensible for having pursued the case in the first place.It is believed to be the first criminal sanction ever pursued against a privacy professional for his company's actions...
The video that sparked the investigation was captured in a Turin classroom. Four high school boys were recorded taunting a young man with Down syndrome, and hitting the 17-year-old with a tissue box. One of the boys uploaded the footage to Google Video's Italian site on September 8, 2006...
According to Google, more than 200,000 videos are uploaded to Google Video each day. Under EU legislation incorporated into Italian law in 2003, Internet service providers are not responsible for monitoring third-party content on their sites, but are required to remove content considered offensive if they receive a complaint about it. Between November 6 and 7, 2006, Google received two separate requests for the removal of the video–one from a user, and one from the Italian Interior Ministry, the authority responsible for investigating Internet-related crimes. Google removed the video on November 7, 2006, within 24 hours of receiving the requests. "
NHS refusing to let patients opt out of Summary Care Record
"NHS bosses leading the rollout of the Summary Care Record are refusing to take no for an answer from patients who say they want to opt out, Pulse can reveal.If this report is accurate, then senior NHS managers are reportedly asking GPs to breach data protection laws and medical confidentiality, pretend that a demand from those managers for patients to attend surgeries to be brow-beaten into changing their minds about their medical privacy actually originates from their GPs, and actively engage in interviews with patients where they lean on them to agree to have their medical details put on ridiculously insecure computer systems, which the House of Commons Public Accounts Committee has just concluded:GPs in the first wave of the rollout are being asked to send their PCT a list of patients opting out of the programme, despite fears the request may breach confidentiality.
Documents obtained under the Freedom of Information Act show NHS Lincolnshire, one of the first trusts to adopt the care record, wants GPs to hand over patients’ details, so they can be invited ‘to the surgery to discuss it further’.
The documents also reveal that when the PCT writes to patients, it will put the practice logo on letters so that they are sent ‘as if from the practice’."
Does incitement to break the law, or at the very least breach medical confidentiality, fall under the serious misconduct provisions of NHS employment regulations these days?
- don't work very well if at all
- are neither liked nor trusted by NHS staff
- that government claims about the functionality and value of the systems are unrealistic
- that no one knows how much they are costing
- that the contracts interfere with appropriate auditing of the systems
- that data security threats are significant and the government department responsible thinks it "is not practical for it to collect details of all security breaches" thereon
writetoreply.org
He was twittering about the lack of public input to the Digital Britain report a couple of days ago, prompting a response from Joss Winn at the University of Lincoln. This then led to them both setting up a blog, http://writetoreply.org/, to facilitate commenting on public reports. You can comment on the Digital Britain report in particular at http://writetoreply.org/digitalbritain/
It's neat how easy it can be to get actively involved in the political process from a standing start.
Tuesday, February 03, 2009
Websites for children must register their moderators, says new law
"Organisations with interactive websites likely to be used mainly by children must ensure that staff moderating the sites are not barred from working with children from October.It will be a criminal offence for an organisation to knowingly employ a barred person for a regulated role, such as moderating children's sites.
The Government is changing the way that it controls who has access to children and vulnerable adults and new laws take effect on 12th October. Those make the moderation of online services such as bulletin boards a regulated activity...
The Safeguarding Vulnerable Groups Act was introduced in 2006 and has been modified by a commencement order which expands it to include some online services as regulated activities, meaning that they cannot be performed by anyone on the list of banned people.
The new law includes as a regulated activity "moderating a public interactive communication service which is likely to be used wholly or mainly by children"."
FSFE launches Free PDF Readers campaign
"The Fellowship of the Free Software Foundation Europe is proud to announce its latest initiative: pdfreaders.org, a site providing information about PDF with links to Free Software PDF readers for all major operating systems."Interoperability, competition and choice are primary benefits of Open Standards that translate into vendor-independence and better value for money for customers," says FSFE president Georg Greve. "Although many versions of PDF offer all these benefits for formatted text and documents, files in PDF formats typically come with information that users need to use a specific product. pdfreaders.org provides an alternative to highlight the strengths of PDF as an Open Standard."
The coordinators of pdfreaders.org, Hannes Hauswedell and Jan-Hendrik Peters, are pleased to present the latest revision of the site with short and compact information how users can seize the full benefits of both Open Standards and Free Software.
"Free Software gives us control over the software we use, and Open Standards give us control over our data and allow implementations by many different groups," explains Jan-Hendrik Peters. "We wanted to show that with the Portable Document Format people can have both."
Hannes Hauswedell adds: "Similar to a Free Software project we started off with an idea, provided a first implementation, received lots of feedback, and worked that into a better version of the site. We are grateful to all the people who got involved. This was a collaborative effort that would not have been possible without all the contributors."
"The site offers buttons in several languages that we encourage everyone to put next to PDF files offered on their sites," explains Matthias Kirschner, FSFE's Fellowship Coordinator. "We hope that in a year from now, no PDF is offered without the vendor-independent alternative buttons of pdfreaders.org.""
Lessig coming to OpenLearn
That was a longer than intended intro. to explain why I've been purusing some of Tony Hirst's old postings on OpenLearn which the latest review process have reminded me of. Most notably his take in Feb last year on The Problem With OpenLearn... I was stuck in particular this time by this:
"Anyway - is OpenLearn making right content available?, and is it just another document dump?He's right. I guess that is one of the reasons I've gone back time and again to the OpenLearn versions of T182 in various often incredibly frustrating attempts to get it put back together into a coherent whole. Good news is that the material is in better shape than any other previous OpenLearn version but I'm only part way through it and have so far noted a signficant volume of errors. But let's hope it is 7th time lucky and it will again see the light of day (or CC at least) in the none too distant future.Who cares? The take home points for me about OpenLearn is that it makes available authentic distance educational material, some of it designed for online delivery, in an open format and under an open license."
Thursday, January 29, 2009
EBLIDA on EU JURI Committee consideration of copyright
Associations, has written an open letter to MEPs on the EU parliament legislative affairs (JURI) committee review of Manuel Medina Ortega's report on copyright last week. They are asking for the Ortega report to be rejected.
"Our reasons are that the Report contains assertions that are contrary to independent expert evidence, and that it take no account of the importance of lawful access by the public, through the exceptions to copyright, to the world of published information.Thanks to Barbara Stratton of the Chartered Institute of Library and Information Professionals (CILIP) for the pointer via the A2K list. CILIP, LACA (the Libraries and Archives Copyright Alliance), SURF (http://www.surf.nl/en/Pages/home.aspx); and SCONUL: the Society of College, National and University Libraries, UK (http://www.sconul.ac.uk) all co-signed the letter.
Libraries have traditionally striven for an equitable balance between the interests of the rightsholder and those of the user. The Ortega paper however is unbalanced, paying little attention to the important role of exceptions to copyright. Not only does it talk of libraries, with whom to our knowledge Mr Medina Ortega has sought no consultation, but also it misrepresents the fundamentals of the debates on Orphan Works, and contradicts the numerous submissions from the European library community to the Commission's recent Green Paper on "Copyright in the Knowledge Economy." [1]
EBLIDA respects authors' rights as the basic pillar of the copyright régime. However, the exceptions to copyright are equally part of the fabric of the régime. It is important that we have a strong copyright system that represents both the interests of the rights holders as well as the users - something Mr Ortega's report regrettably does not attempt to do. We need a viable exceptions regime, because exceptions guarantee broadly speaking human rights, access to knowledge, education and culture, and form the basis of a strong social contract of respect that will benefit all within our Information Society.
At first sight the Information Society Directive is reasonably accommodating to the exceptions to copyright. In quantity, the exceptions it potentially provides are more generous than those implemented by most Member States. However, some major defects fundamentally weaken its carefully enumerated list:
. The list of exceptions is exhaustive. It keeps the exceptions firmly in the twentieth century by limiting those available to provisions that have been found useful in the past. In a matter as important to Europe as the knowledge economy, the Directive shows a failure of nerve, in this respect, that can only be damaging for the future. No new exceptions may be added by Member States in national legislation. It is strange that an exclusive list can be thought to be adequate in the light of the evolving Internet technologies.
. It is also unfortunate that (apart from the first) the list of exceptions is optional. Member States have chosen different exceptions, with the result that harmonisation has not been achieved.
The assertion in Mr Medina Ortega's report that the Directive is 'satisfactory' takes no account of the independent and exhaustive study conducted by the Institute for Information Law at the University of Amsterdam in 2007 which concluded (p.169), 'In sum, it is fair to conclude that the Directive has at best only partly achieved its main goal of promoting growth and innovation in online content services. As our benchmark test has revealed, the Directive deserves particularly low marks for its lack of harmonising effect and its lack of legal certainty'. [2]
With regard to Orphan Works, the Ortega Report displays a regrettable lack of understanding around the issues, and disregards the positive work embarked upon by libraries and rightsholders with the InfoSoc DG. By definition an Orphan Work does not have a traceable owner and therefore, in contradiction to the Ortega statements, it cannot be digitised with the permission of the rightsholder. The inadequacy of the Information Society Directive is illustrated by the fact that the Commission's i2010 Digital Library Initiative includes no significant numbers of orphan works. This limit on its usefulness will remain because there are no proper exceptions to cope with the Orphan Works problem - unless new statutory solutions are introduced.
The goal of the Commission Recommendation 2006/585/EC of 24 August 2006 is to make the European cultural heritage online available to the public. The realisation of this goal requires mass digitisation. However, in the "Final Report on Digital Preservation, Orphan Works, and Out-of-Print Works" and the "Memorandum of Understanding on orphan works" the question of mass digitisation is not addressed. Even within its limited scope, the Memorandum, which covers only the digitisation of individual works, does not provide libraries with any legal certainty. Legal certainty would require
. either that Member States have recourse to Recital 18 of the Information Society Directive and adopt extended collective licensing, like the Nordic countries,
. or that they introduce an exception, or other statutory solution, in order to allow the copying and making available of works (notably unpublished works) for which no appropriate licensing body exits.
Any innovation in national legislation to permit the use of orphan works would require either amendment of Directive 2001/29/EC or the creation of a new Community legal instrument to allow this.
This message is on behalf of the libraries of Europe, and also on behalf of Europe's citizens, who use their libraries to obtain much of the important information they need.
Yours sincerely
Andrew Cranfield
Director of EBLIDA"
When families become enemies of state
"Increased surveillance of families is presented to the public on the back of a child abuse tragedy. Sharing information is clearly valuable in identifying victims of abuse since parents themselves may well tell lies. Sharing more information is offered as a way of increasing children's safety. This, though superficially plausible, over-simplifies the processes of judgment and decision-making. Sharing more relevant information will improve identification, sharing more irrelevant information will harm it, increasing the noise-to-signal ratio so it is harder for a professional to spot the relatively few cases where children are in danger from their parents. The type of information-sharing recommended by the government will vastly increase the amount of data irrelevant to child protection circulating around the system.You don't make it easier to find a needle in a haystack by throwing more hay on the stack. Thanks to Terri Dowty for the link.Respecting families' privacy does not mean abandoning the early intervention policy; it means abandoning the assumption that practitioners know best and parents can't be trusted to care about their children's welfare. We should assume that parents are innocent until we have at least some grounds for suspicion."
3 Strikes arrives in Ireland via the Eircom settlement
"As part of the settlement, the record companies will supply Eircom with the IP addresses of all persons who they detect illegally uploading or downloading copyright works while Eircom has agreed measures which include the ultimate disconnection of infringing subscribers who ignore warnings to cease such infringement...So it looks like my home country is about to provide a case study on how bad 3 strikes might be in practice and how it might trip over the ECJ decision in the Promusicae case, various EU directives and the European Convention on Human Rights, not to mention the practical problems involved and the relative costs to the various parties. Actually this activity has the potential to be challenged eventually both through the European Court of Justice and the European Court of Human Rights. It's a little surprising Eircom agreed to this kind of settlement given what it will cost the company. I can only surmise they had a strong expectation that they would lose the case.
Eircom has agreed to implement from now on a graduated process under which it will: (1) inform its broadband
subscriber that the subscribers IP address has been detected infringing copyright; (2) warn the subscriber they will be disconnected unless infringement ceases and (3) disconnect the subscriber in default of compliance with the warning.
The record companies have also agreed they will take all necessary steps to put similar agreements in place with all other internet service providers in Ireland."
The Irish Times article doesn't mention it but a Danish firm, DtecNet, will be gathering the hordes of suspicious IP addresses from P2P networks for the music companies and piping those lists of IP addresses to Eircom for warnings and disconnections. Thanks to Richard Clayton via the FIPR alerts for the pointer to the Irish Times article.
Update: Daithí Mac Síthigh, as usual, is spot on with his analysis of the settlement.
Wednesday, January 28, 2009
NZ government reject calls to drop 3 strikes type law
"Calls to repeal a law that could mean Kiwi internet users have their connections cut if they are accused of breaching copyright have been knocked back by the Government.
The new "guilt by accusation" law would result in internet service providers (ISPs) being forced to take on the role of gatekeeper by blocking online access to anyone accused of flouting copyright laws and illegally downloading films and music."
The law is due to be enacted at the end of February.
Carrie v Tolkien
"It is interesting to note that at the foot of this posting there appears the comment "the blog owner changed this comment on 2007-03-09 12:05". This appears to be recording the fact that the Claimant deleted the address which had appeared in the original posting, and tends to confirm his capacity to control the website."And so the ruling goes on, not surprisingly ending with a verdict in favour of Mr Tolkien.
"
- ...there is no realistic prospect of any jury, being properly directed, coming to a conclusion other than that the Claimant consented to and acquiesced in all such subsequent publications. That is in my judgment plainly correct. That leaves the Defendant to address the relatively brief period on 24 February 2007 before the Claimant discovered the posting. There is some doubt, on the Claimant's own evidence, as to when this was. There would appear to be a maximum period of 4 hours and 19 minutes. It is the Defendant's submission that there is no realistic prospect of establishing that any publication at all took place during that window of opportunity.
- It would appear to be established that there is no presumption in law to the effect that placing material on the Internet leads automatically to a substantial publication: see e.g. Al Amoudi v Brisard [2001] 1 WLR 113. It is necessary to plead and establish any publication relied upon. There must be some evidence on which an inference can be drawn in relation to that very short period of time.
- It will not suffice merely to plead that the posting has been accessed "by a large but unquantifiable number of readers". There must be some solid basis for the inference. That form of pleading is no more than bare assertion.
- It may very well be that the Claimant could gain access to the records of visitors to his website. Be that as it may, he has not done so. Without evidence of substantial publication it is submitted that there is no basis for concluding that there was, over the short period in question, the commission of a real and substantial tort such as to justify the deployment of the court's resources...
- In the light of my conclusions on these first two matters, the question of exercising a discretion does not arise. Had it done so, I would have declined in any event to exercise my discretion in the Claimant's favour because the claim has no realistic prospect of success for the reasons I have already given.
I can't see how this one could possibly have come out any other way. It is a bit unfortunate that it ever got as far as the courtroom really but the decision is relatively short and well worth a read for the legal geeks out there and is delivered in Mr Justice Eady's, as ever, accessible style.
Update: Outlaw has an accessible report on the case for those less inclined towards reading legalise. Thanks to Glyn via ORG for the pointer.