German Federal Constitutional Court bans evoting machines

In a landmark ruling the German Federal Constitutional Court has banned all electronic voting machines currently being used in Germany. From [English translation of] the Court's press release (please excuse the formatting):

"The Federal Constitutional Court rendered judgment on two complaints concerning the scrutiny of an election, which were directed against the use of computer-controlled voting machines (socalled voting computers) in the 2005 Bundestag election of the 16th German Bundestag (see German press release no. 85/2008 of 25 September 2008). The Second Senate decided that the use of electronic voting machines requires that the essential steps of the voting and of the determination of the result can be examined by the citizen reliably and without any specialist knowledge of the subject. This requirement results from the principle of the public nature of elections (Article 38 in conjunction with Article 20.1 and 20.2 of the Basic Law Grundgesetz – GG)), which prescribes that all essential steps of an election are subject to the possibility of public scrutiny unless other constitutional interests justify an exception. Accordingly it is, admittedly, constitutionally unobjectionable that § 35 of the Federal Electoral Act (Bundeswahlgesetz – BWG) permits the use of voting machines. However, the Federal Voting Machines Ordinance (Bundeswahlgeräteverordnung) is unconstitutional because it does not ensure that only such voting machines are permitted and used which meet the constitutional requirements of the principle of the public nature of elections. According to the decision of the Federal Constitutional Court, the computer-controlled voting machines used in the election of the 16th German Bundestag did not meet the requirements which the constitution places on the use of electronic voting machines. This, however, does not result in the dissolution of the Bundestag because for lack of any indications that voting machines malfunctioned or could have been manipulated, the protection of the continued existence of the elected parliament prevails over the
electoral errors which have been ascertained. To the extent that the manner in which the German Bundestag’s Committee for the Scrutiny of Elections conducted the proceedings was objected to, the complaint for the scrutiny of an election was unsuccessful...

The use of voting machines which electronically record the voters’ votes and electronically ascertain the election result only meets the constitutional requirements if the essential steps of the voting and of the ascertainment of the result can be examined reliably and without any specialist knowledge of the subject. While in a conventional election with ballot papers, manipulations or acts of electoral fraud are, under the framework conditions of the applicable provisions, at any rate only possible with considerable effort and with a very high risk of detection, which has a preventive effect, programming errors in the software or deliberate electoral fraud committed by manipulating the software of electronic voting machines can be recognised only with difficulty. The very wide-reaching effect of possible errors of the voting machines or of deliberate electoral fraud make special precautions necessary in order to safeguard the principle of the public nature of elections.

The voters themselves must be able to understand without detailed knowledge of computer technology whether their votes cast are recorded in an unadulterated manner as the basis of vote counting, or at any rate as the basis of a later recount. If the election result is determined through computer-controlled processing of the votes stored in an electronic memory, it is not sufficient if merely the result of the calculation process carried out in the voting machine can be taken note of by means of a summarising printout or an electronic display...

Limitations of the possibility for the citizens to examine the voting cannot be compensated by an official institution testing sample machines in the context of their engineering type licensing procedure, or the very voting machines which will be used in the elections before their being used, for their compliance with specific security requirements and for their technical integrity. Also an extensive entirety of other technical and organisational security measures alone is not suited to compensate a lack of the possibility of the essential steps of the electoral procedure being examined by the citizens. For the possibility of examining the essential steps of the election
promotes justified trust in the regularity of the election only by the citizens themselves being able to reliably retrace the voting...

III. While the authorisation to issue an ordinance, which is granted by § 35 BWG, does not meet with any overriding constitutional reservations, the Federal Voting Machines Ordinance is unconstitutional because it infringes the principle of the public nature of elections...The Federal Voting Machines Ordinance does not ensure that only such voting machines are used which make it possible to reliably examine, when the vote is cast, whether the vote has been recorded in an unadulterated manner. The ordinance also does not place any concrete requirements as regards its content and procedure on a reliable later examination of the ascertainment of the result...

IV. Also the use of the above-mentioned electronic voting machines in the election to the 16th German Bundestag infringes the public nature of the election. The voting machines did not make an effective examination of the voting possible because due to the fact that the votes were exclusively recorded electronically on a vote recording module, neither voters nor electoral boards nor citizens who were present at the polling station were able to verify the unadulterated recording of the votes cast. Also the essential steps of the ascertainment of the result could not be retraced by the public. It was not sufficient that the result of the calculation process carried out in the voting machine could be taken note of by means of a summarising printout or an electronic display."

In essence the court is saying that the voting machines and associated processes are not sufficiently transparent or auditable to meet the requirements of the German constitution. In addition the limited testing of sample machines prior to an election is not an adequate substitute for transparency in order to gaurantee the integrity of the electoral process.

Sarkozy to be sued for copyright infringement

For a man to has expended so much rhetoric on the need to extend copyright laws to protect rights holders from the hordes of unwashed on the internet and who was so instrumental in pushing through France's three strikes law, it is somewhat ironic to find Nicolas Sarkozy may well find himself at the wrong end of a copyright suit.

"French President Nicolas Sarkozy may be a law-and-order type of guy, but he may have run afoul of copyright law.

Brooklyn-based musical duo MGMT have threatened to sue Sarkozy and his conservative UMP party over misuse of the band's electro-hippie anthem "Kids" at a party rally in January, as well as on two videos available on the party's Web site."

If the report is to be believed, Sarkozy's party, on learning of the infringement, transcended irony, crashing wholesale into hypocrisy by effectively telling the music group's representatives to get lost.

Dutch government study on economic & cultural effects of P2P

An English translation of a Dutch government study, Economic and cultural effects of file sharing on music, film and games has just been published. It is one of the few empirical studies done in this area and as such is highly recommended. From the management summary of the report (apologies for the formatting):

"The main aim of this study is to identify the short- and long-term economic and cultural

effects of file sharing on music, films and games. File sharing is the catch-all term for

uploading and downloading. The short-term implications examined include the direct

costs and benefits to society at large. In order to determine the long-term impact, we

analyse changes in the industry’s business models as well as in cultural diversity and

the accessibility of content.

The study draws on existing sources of information to describe the structure and

operation of the film, games and music industries and discusses the most important

changes in their business models. Digitisation has played a central role in this process.

The trends and developments are subsequently analysed from a legal perspective, with a

primary focus on copyright aspects. The empirical reality of file sharing is described

using data collected during interviews with heavy file sharers as well as data from a

representative survey of 1,500 internet users in the Netherlands. Other sources include

interviews with people working in one of the three entertainment industries and, where

none were available, with industry representatives...

The research shows that the economic implications of file sharing for welfare in the
Netherlands are strongly positive in the short and long terms. File sharing provides
consumers with access to a broad range of cultural products, which typically raises
welfare. Conversely, the practice is believed to result in a decline in sales of CDs,
DVDs and games.

Determining the impact of unlicensed downloading on the purchase of paid content is a
tricky exercise. In the music industry, one track downloaded does not imply one less
track sold. Many music sharers would not buy as many CDs at today’s prices if
downloading were no longer possible, either because they cannot afford it or because
they have other budgetary priorities: they lack purchasing power. At the same time, we see that many people download tracks to get to know new music (sampling) and
eventually buy the CD if they like it. To the extent that file sharing does result in a decline in sales (substitution), it usually entails a transfer of welfare from producers to consumers. With estimated welfare gains accruing to consumers totalling around €200 million a year in the Netherlands, music producers and publishers suffer turnover losses of at most €100 million a year...

The impact of digitisation on the various sectors of the entertainment industry is
substantial. Traditional business models used by distributors in each of these sectors and
most other actors upstream in the value chain (producers and creators) are based on the
controlled access to the products created, in this case films, games and music
(recordings). Copyright gives them control over the use and marketing of their products,
for which they may charge consumers. The practice of file sharing, however, is making
it increasingly difficult for them to maintain control over their works, with the risk of
eroding their commercial foundations...

The music industry finds itself up against a shrinking market for its products and the
ubiquitous problem of file sharing. It may well be that at least part of turnover loss
directly reflects this sharing of digital music files, via P2P networks among other routes.
The industry’s defensive strategy has not succeeded in stemming the swelling tide of
music sharing and has failed to come up with an early answer to today’s new digital
reality. And so it has seen other players, such as Apple, claim key market positions in
marketing and delivering digital music files...

A different picture emerges for the film industry, which is still enjoying growth in a
number of markets: cinema visits and DVD sales. By contrast, DVD rentals have
slumped. This favourable trend compared with the record industry may reflect the fact
that film sharing has not taken off on as large a scale as music sharing. If this is indeed
the reason, increasing broadband penetration might eventually also cause this industry
to record less growth or even to shrink. The urgency the music industry feels to reinvent
its business model might then also take hold in the film industry. Films are also at a
disadvantage in that it is not in the nature of film consumption for many viewers to
quickly want to see the same film again. Free downloading is therefore more likely to
result in substitution here than in the music business...

The games industry is a different story yet again. This business is showing exuberant
growth, particularly at the console games and related hardware end, and the spectre of
file sharing looms much less large in console games than in PC games, where turnover
is now flat. The specific platform-restricted hardware-software-content marriage makes
the official game release so attractive – compared with a music CD – that this industry
might well be able to better prevent or sidestep the file sharing that besets the music
business. The hardware-software-content combine also gives large producers and
distributors in the industry more scope to ensure profitable operations. These
opportunities are sorely lacking in the music and film industries. Another advantage of
the games industry is that concept design and product innovation are much more
embedded in the gaming culture than in the music and film industries, in particular now
that it is increasingly capitalising on the opportunities offered by the Web."

Amazon bows to Authors Guild on Kindle 2 text to speech

From CNet: Amazon retreats on Kindle's text-to-speech issue

"Apparently, Amazon won't fight the publishing industry on the issue of whether the Kindle 2's text-to-speech function violates copyright.

The retailer, which makes the popular Kindle electronic-book reader, announced late Friday that the company is modifying systems to allow authors and publishers to decide whether to enable Kindle's text-to-speech function on a per-title basis.

Amazon began its press release with tough talk. "Kindle 2's experimental text-to-speech feature is legal," Amazon wrote. "No copy is made, no derivative work is created, and no performance is being given."

But then the company says: "We strongly believe many rights holders will be more comfortable with the text-to-speech feature if they are in the driver's seat."

There is no mistaking what happened here. Amazon caved. For Kindle owners interested in the text-to-speech feature, the device just lost value."

Larry Lessig, amongst others, is not impressed:

"

Amazon has caved into demands from the Authors Guild that it disable the ability of the Kindle to read a book aloud. This is very bad news.

We had this battle before. In 2001, Adobe released e-book technology that gave rights holders (including publishers of public domain books) the ability to control whether the Adobe e-book reader read the book aloud. The story got famous when it was shown that one of its public domain works -- Alice's Adventures in Wonderland -- was marked to forbid the book to be read aloud. (Here's a piece I wrote about this in 2001).

Now the issue is back. The Authors Guild has objected because Amazon's Kindle 2 has a function built in that enables the book to be read aloud. So when, for example, you're commuting, you can plug your Kindle 2 into your MP3 jack and have the book read aloud.

Amazon rightly argued that this did not violate any of the exclusive rights granted by copyright law to the copyright owners. In that, Amazon is exactly right. But nonetheless, it will now enable publishers to decide whether the Kindle books they sell will permit the book to be read aloud. And of course, that includes public domain books.

So here we go again -- How long till we can buy Alice's Adventures in Wonderland and be told that this book "cannot be read aloud"?

But the bigger trend here is much more troubling: Innovative technology company (Amazon (Kindle 2), Google (Google Books)) releases new innovative way to access or use content; so-called "representatives" of rights owners, Corleone-like, baselessly insist on a cut; innovative technology company settles with baseless demanders, and we're all arguably worse off.

We're worse off with the Kindle because if the right get set by the industry that publishers get to control a right which Congress hasn't given them -- the right to control whether I can read my book to my kid, or my Kindle can read a book to me -- users and innovators have less freedom. And we may be worse off with Google Books, because (in ways not clear when the settlement was first reported) the consequence of the class action mechanism may well disable users and innovators from doing what fair use plainly entitled Google to do."

Call for Net blackout protest against French 3 strikes rules

La Quadrature du Net are calling for an internet blackout to protest against the French 3 strikes law.

"Opposing the stubborn and ridiculous will of the French governement to disconnect whole families from the Internet without real proof or trial, La Quadrature du Net issues a call to all freedom-cherishing citizens to a "black-out" of their sites, blogs, profiles, avatars,... As has been done in New Zealand, the only other country with France where the "graduated response" would have been imposed by law, and was finally pushed back: to protest against this stupid law and its "white list" of authorized websites, the French Web must act and dress in black."

Academics write to UK minister on copyright term

From Sound Copyright:

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!

Update: See also ORG's blog entry from 6th February Sound Copyright conference attacks the “fairy tale” of copyright term extension.

UK government plan to retain DNA in spite of European court ruling

The Guardian (front page) is reporting that the UK government is planning to keep the DNA samples taken from innocent people despite the pasting they took on the issue in European Court of Human Rights in December 2008. (The case was S. and Marper v. The United Kingdom but since the court website issues transient IDs for access to the decisions, you may just need to type 'Marper' into the hudoc search engine to locate the decision in full). To summarise from the Court's provisional annual report for 2008, (page 75):

"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 PRIVÉE
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."

To 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.

Independent schools encourage opting out of ContactPoint

From the Times:

"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

From the Washington Post:

"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

From Canada.com:

"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.

Microsoft sue Tomtom for patent infringement

From PC Mag :

"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

Apparently the repeated "serious security breaches" of the one of the databases that will be at the centre of the UK government's ID card system (the Customer Information System (CIS) at Department for Work and Pensions) demonstrate that "security system is working and is protected by several different audit and monitoring controls". Welcome to the world of ID card salesmen where black is white...

Thanks to HJ Affleck at FIPR for the pointer.

Pirate Bay prosecution not going too well

According to a report in the latest (always excellent) EDRI-Gram, the prosecution don't seem to be making a lot of headway in the trial of the Pirate Bay folks in Sweden.

"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.

The 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=9803

The 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"

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. Recommended

Supreme Court sides with Rambus v FTC

The US Supreme Court has sided with Rambus in one branch the long running dispute about the company's patent on an industry standard.

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)."

Eircom deal [was] may have been 3 strikes plus...

The Register is reporting that Eircom's recent out of court settlement with the music labels included a commitment by the company to block access to any websites classified as illegal file sharing sites by the the Irish Recorded Music Association (IRMA - the trade body representing the big four music companies).

Update: Eircom has said that the company will not block any websites without a proper court order.

New Zealand delay implementation of 3 strikes law

The New Zealand government has reportedly delayed the implementation of the 3 strikes law that it passed last year. It was due to come into force at the end of this week (28 Feb.). Pity they didn't have their second thoughts before passing the 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

"You assist an evil system most effectively by obeying its orders and decrees. An evil system never deserves such allegiance. Allegiance to it means partaking of the evil. A good person will resist an evil system with his or her whole soul." Mahatma Gandhi.

Medina report on copyright rejected by EU parliament

I'm playing catch up having been off the grid for a week but it looks like the EU parliament has rejected the Medina report on copyright nodded through by the JURI (legislative affairs) committee a few weeks ago.

Apple iPhone jailbreak and card counting

Nice juxtaposition of a couple of stories about Apple's iPhone and iPod Touch.

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.

Intellectual property and the diamond skull

A group of artists have started a campaign in reaction to reports of Damien Hirst's dispute with a teenager who copied some images of his diamond skull. The Independent has pitched in with God save the Damien Hirst rip-off industry!

EU legal affairs committee approve copyright term extension

The EU parliament's legal affairs (JURI) committee has, as expected, approved a proposal to extend the term of copyright in sound recordings to 95 years.

"

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.

12/02/2009

In the chair: : Giuseppe GARGANI (EPP-ED, IT)

Procedure: co-decision, 1st reading
Plenary vote: March II (Strasbourg)"

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.

What's the law?

Daithí Mac Síthigh has drawn my attention to a fascinating case the upshot of which is that laws are being created so quickly and voluminously and enacted through secondary legislation in such a way that even the legal profession cannot keep up. As Daithí says, Lord Toulson deserves a big pat on the back for being blunt about it:

"

71. 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."

72. 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."

Daíthí sums up very nicely:

"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."

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.

Second Life, the academic and the Skinninggrove jetty

This is terrific. Steve Thompson at the University of Teeside helped the residents of a small village called Skinningrove with their ongoing campaign to get an old jetty rebuilt by getting the children at a local secondary school to construct a prototype in Second Life. And they all made a film about the opening of the virtual jetty in Second Life, complete with specially written songs sung by the children of the village primary school:


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.

From data retention to local authority spying

The Telegraph is reporting that the UK government is implementing the EU data retention directive (EU Directive 2006/24/EC) in such a way as to facilitate further spying by local authorities. Now let's just read paragraph 1 of article 1 of the directive (scroll down to the third page of the pdf version):

"1. This Directive aims to harmonise Member States’ provisions
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."

A 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?

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 of
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"

Update: Having now read the draft regulations I expect the Telegraph writer is concerned about

"Access to retained data

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 government is also going with a 12 month retention period rather than the significantly shorter periods suggested by ISPs and civil rights organisations.

"The retention period

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."

Update: 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.

Authors Guild object to Kindle 2 read aloud feature

From the WSJ:

"Some publishers and agents expressed concern over a new, experimental feature that reads text aloud with a computer-generated voice.

"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 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:

"This book cannot be read aloud."

(No, I'm not making it up.).

Lobbyists try to get copyright into Obama's stimulus package

You really do have to hand it to the entertainment industry's lobbyists - they are very good at their job. The latest efforts consist of an attempt to get a copyright protection provision inserted in President Obama's stimulus package. Public Knowledge says:

"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:

1. First, infringement can’t be found through “network management” techniques. There are legal uses for copyrighted works even without permission of the owner.

2. 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."

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.

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.

This amendment is very controversial. I urge you to oppose this copyright filtering amendment to the broadband stimulus."

Update 2: the copyright amendment hasn't passed (yet at least).

Apple v PsyStar update

The judge in the Apple v Psystar case has handed the clone maker an interim victory, agreeing the company can pursue it's case for copyright misuse. But he's also warned both parties that they need to cut the tit for tat legal manoeuvres and prepare for a substantive trial.

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.

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 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):

"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.3
[...]
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)."

It has to be said that the facts were completely different in that instance and I would have thought, therefore, clearly distinguishable.

"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 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 also argued the precedent the claimed was set in the Triad case:

"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.
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."

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'.

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

I missed this in December. RDR books withdrew their appeal against the decision in favour of Warner Bros and J.K. Rowling that a print version of the Harry Potter Lexicon would infringe the copyright on the original works.

Del Pierro sues Facebook for defamation

From cnet news:

"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

The Ministry of Truth has suggested the the voice stress detection software being deployed by the UK's Department for Work and Pensions, with the aim of clamping down on benefits fraud, is not as sophisticated as has been claimed.

Thanks to David Gerard via the ORG list for the pointer to this one too.

Why protesters are now stalkers

George Monbiot had a interesting article in the Gaurdian last Thursday on how protestors can and are being prosecuted as 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.

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."

Thanks to David Gerard via the ORG list for the pointer.

AP claim copyright infringement on Obama image

It seems that the Associated Press believe that they are the copyright owners of the photo which the Obama presidential campaign poster created by Shepard Fairey was based on. AP's lawyers are now in touch with Fairey's lawyers over the matter of credit and compensation.

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

The Times has a report on Google Latitude today.

"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

From Bloomberg via Yahoo News:

"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

From Nate Anserson at Ars Technica:

"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 biometric ID cards have been issued but naturally they are no use to anyone. From Silcon.com:

"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.

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."

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.

90,000 sex offenders removed from MySpace

AP reports that 90,000 sex offenders have been removed from MySpace.

Copyright, monopoly and Google Book

Nice [short] essay over at Books do Furnish a Room on Google's settlement with authors and publishers.

"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

IAPP is reporting that four Google executives are facing charges in an Italian court relating to a video of a group of teenagers bullying another teenager who was disabled.

"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.

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. "

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.

NHS refusing to let patients opt out of Summary Care Record

Via FIPR, Pulse magazine is reporting:

"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.

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’."

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:

• 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
  

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?

writetoreply.org

Tony really has been worn down by my endless stream of consciousness about the importance of public policy in relation to the deployment of the tools of our information age. :-)

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.

Websites for children must register their moderators, says new law

From OutLaw:

"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

Speaking of open content, it is worth noting the announcement from the FSF:

"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

I'm currently going through version 7 of the OpenLearn rendition of my old internet law course 'T182' based on Larry Lessig's book 'The Future of Ideas'. I'm sure there is probably at least one academic paper in the story of how an OU course which came off stream about 5 years ago and the short creative commons release of which triggered the creation of OpenLearn hasn't quite made it back to the outside world yet. It's a tale of politics and organisational infrastructure, architecture and systems choice, staff turnover and technology, openness and 'openness', the incompatibility different versions of XML and XML engines, DOS and web utilities, cutting, pasting and ordering, style and substance and a handful of dedicated individuals.

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?

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."

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.