Minister seeks power to approve school textbooks

According to the Guardian, the government is now seeking the power for ministers to specify which authors' works would go on the school curriculum.

"The schools secretary, Ed Balls, is seeking a new legal power to dictate the basic content of every public exam in England, in a move that would give him or any future secretary of state the right to decide which books children must study at GCSE or A-level.

The law would allow the government to set "minimum requirements" for qualifications. One senior exam board source said it would give ministers "mind-boggling power" over exams if it got on to the statute books.

Opposition MPs will attempt today to remove from the apprenticeships, skills, children and learning bill the clause that gives the secretary of state control of basic qualifications content. Guidance published alongside the bill says it could be used to specify "which authors' works needed to be studied for someone to gain a GCSE in English".

Ministers insist the power would be exercised only as a last resort, to preserve the teaching of Shakespeare, for example, if there was a suggestion it should be scrapped from the curriculum."

What's worrying is that some of them probably even believe that bit about saving Shakespeare.

Copyright term again

Less than a week now until the EU Parliament votes on the latest copyright term extension proposals and I'm reminded, naturally, of Jefferson and Macaulay but also, more recently, a lecture by Sir Hugh Laddie in 1995 (the IP Institute Stephen Stewart Lecture), subsequently published in the European Intellectual Property Review journal the following year (Laddie, H. (1996), "Copyright: over-strength, over-regulated, over-rated?", European Intellectual Property Review, Vol. 18 No.5, pp.253-60.) Discussing the then relatively new EU copyright term extension directive of 1993, Laddie had this to say:

"As a result of the Term Directive, the copyright in the first category of works, that is to say, literary works and so on, is now life of the author plus 70 full years. This additional 20 years has been imposed throughout the Member States of the European Union to bring us into line with the domestic law of Germany. As is now familiar in copyright law, the process was one of leveling up the protection rather than levelling down. The result of this new term is that if, for example, a young computer programmer writes a new piece of computer software, he generates a monopoly which will normally last for over 100 years. Depending on his longevity, it may last more than 150 years. Similarly, if a politician writes letters or speeches which are of general historic interest, they also may be protected for a century or more. Indeed, if a modern-day architect were to design a new Albert Memorial, he would have the satisfaction of knowing that his copyright is likely to be sprightly and in the prime of life long after the concrete and steel of his architectural creation have started to crumble.

The question to be asked is: what justification is there for a period of monopoly of such proportions? It surely cannot be based on the principle of encouraging artistic creativity by increasing the size of the carrot. No one is going to be more inclined to write computer programs or speeches, compose music or design buildings because 50, 60 or 70 years after his death a distant relative whom he has never met might still be getting royalties. It is noticeable that this expansion of term is not something which has only occurred in the last decade. On the contrary, it has been a trend which has been in evidence for the whole of this century. Before the 1911 Act, the term of copyright in artistic works extended to seven years after the author's death. In 1911 this was extended to 50 years after death. The growth of term is in fact greater than these figures suggest. Life expectancy in 1910 was far shorter than it is now. The result is that a monopoly which was expected to last about four decades in 1910 should now be expected to last on average more than three times as long.

Indeed, I believe that the same criticism of excessive duration can be leveled at the 50-year flat term which applies to films, recordings and broadcasts. It may be possible to pick out a few creations of exceptional artistic or commercial merit where one could argue for lengthy protection - for example, the recordings of Rostropovich or the Beatles - but is it right that all copyright should be protected on the basis of what might be thought justified for the exceptional few? Furthermore, it is possible to argue that these long copyright terms are not necessary to protect the commercial exploitation of the works themselves. Most works protected by copyright are exploited very rapidly, if at all. This is so whether we are considering films and records or literary works such as computer software. Even books such as those that win the Booker prize are only commercially successful for a short time and then, to all intents and purposes, pass away. Yet the dead hand of copyright lingers on, in most cases serving no useful purpose.

Another of the problems with copyright law is that, unlike inventions protected by patent or designs protected by registration, the requirements for qualification are so low as to be virtually non-existent. Virtually any written material, any sketch and any film footage or sound recording is automatically protected. This has practical consequences. In Elanco v Mandops, the Court of Appeal accepted, as it had to, that a label of instructions placed on the side of a barrel of herbicide was a copyright literary work. No doubt depending on the youth of the literary genius who wrote it, the label will be protected for more than a century and perhaps for as long as a century and a half - certainly well beyond the date when for safety or commercial reasons the product has been removed from the market. So one of the troubles with copyright, then, is that it springs up to protect nearly every creation of the human mind, be it ever so trivial. As another member of the judiciary put it, the fact that our system of communication, teaching and entertainment does not grind to a standstill is in large part due to the fact that in most cases infringement of copyright has, historically, been ignored...

It would be possible to go on criticising the width of our copyright laws, but perhaps I have said enough. It might be more useful to inquire why our law has developed as it has. I have mentioned already the value and size of the industries which now believe they need extensive copyright protection to safeguard their income stream. They, quite properly, lobby for their interests. But who lobbies against them? There is no trade union of copyright infringers. Support for any limitation on copyright is easily portrayed as support for pirates - the usual pejorative global expression for infringers. It is depicted as support for the parasites of industry. Is it surprising, then, that the scope of protection gets ever wider? I suggest that the drafting of the legislation bears all the hallmarks of a complacent certainty that wider copyright protection is morally and economically justified. But is it?"

Laddie, who died in November last year, was widely respected round the world as an IP litigator, judge (he was a High Court judge between 1995 and 2005) and educator (Prof at ICL). It would be sad if the EU were to ignore his and countless other renowned IP experts advice and press ahead with this ill conceived measure.

Report on Kingsnorth climate camp policing

From BritCit Blog:

Lib Dem MP David Howarth has been highlighting the disturbing treatment of peaceful protestors by police at a climate camp in August last year.

"Government justified the heavy-handed approach by revealing that 70 police officers had been injured policing the protest; but a freedom of information request revealed that these 'injuries to police' included such things as heatstroke, toothache and insect bites. Vernon Coaker, the Home Office minister who had made the claim about police injuries, was later forced to apolgise to the House and admit that "there were no recorded injuries to police officers sustained as a result of direct contact with the protestors".

Here are the links to the report and appendices:

• Policing of the Kingsnorth Climate Camp: Preventing Disorder or Preventing Protest?
• Appendix 1: List of police injuries
• Appendix 2: Police medical treatment
• Appendix 3: Kent Police FOI Response
• Appendix 4: Letter from Vernon Coaker to David Howarth
• Appendix 5: List of seized property

Related Links

Camp for Climate Action Protesters fought the law, but the law fought back ... very, very loudly | The Guardian"

Sadly if you prime a large body of police to expect trouble and send them into an area where people are gathering for some event, you can't be surprised with the predictable results. The resultant inevitable conflict does a disservice to dedicated police officers and the general public, stoking up tension, suspicion and lack of trust, when a stable democracy requires mutual respect between the two.

Maybe if the headline chasing politicians, wanting to claim they are cracking down on criminality and terrorism, were charged with reckless disregard for public safety, every time they engineered this kind of clash, there would be more responsible decision making in the higher echelons of government and the police service? I wonder if the attempts by the government to smear the protestors after the event would be actionable under the UK's defamation laws (assuming some of these claims were specific enough and made outside the cloak of parliamentary privilege)?

Ironically even the minister's attempt to backpedal was not entirely accurate - he said in his letter to David Howarth:

"Kent police have informed the Home Office that there were no recorded injuries to police officers sustained as a result of direct contact with the protestors."

Yet Appendix 1 of the report lists 4 incidences of police officers' bruising as a result of "Assault by another person".

Schneier on privacy and data toxicity

Bruce Schneier has been writing eloquently about privacy again.

"Welcome to the future, where everything about you is saved. A future where your actions are recorded, your movements are tracked, and your conversations are no longer ephemeral. A future brought to you not by some 1984-like dystopia, but by the natural tendencies of computers to produce data.

Data is the pollution of the information age. It's a natural byproduct of every computer-mediated interaction. It stays around forever, unless it's disposed of. It is valuable when reused, but it must be done carefully. Otherwise, its after effects are toxic.

And just as 100 years ago people ignored pollution in our rush to build the Industrial Age, today we're ignoring data in our rush to build the Information Age...

Society works precisely because conversation is ephemeral; because people forget, and because people don't have to justify every word they utter.

Conversation is not the same thing as correspondence. Words uttered in haste over morning coffee, whether spoken in a coffee shop or thumbed on a BlackBerry, are not official correspondence. A data pattern indicating "terrorist tendencies" is no substitute for a real investigation. Being constantly scrutinized undermines our social norms; furthermore, it's creepy. Privacy isn't just about having something to hide; it's a basic right that has enormous value to democracy, liberty, and our humanity.

We're not going to stop the march of technology, just as we cannot un-invent the automobile or the coal furnace. We spent the industrial age relying on fossil fuels that polluted our air and transformed our climate. Now we are working to address the consequences. (While still using said fossil fuels, of course.) This time around, maybe we can be a little more proactive.

Just as we look back at the beginning of the previous century and shake our heads at how people could ignore the pollution they caused, future generations will look back at us -- living in the early decades of the information age -- and judge our solutions to the proliferation of data.

We must, all of us together, start discussing this major societal change and what it means. And we must work out a way to create a future that our grandchildren will be proud of."

Students blog important environmental trial

Now here's a valuable way to use computers in education: Student bloggers give public a seat at Grace trial

"A cadre of journalism and law students from the University of Montana is providing a virtual window on what many are calling the most extensive environmental criminal trial in U.S. history.

Paired together in two-hour shifts, a law student and a journalism student provide daily, continuously updated online coverage of the W.R. Grace & Co. trial in U.S. District Court in Missoula through their blog, http://blog.umt.edu/gracecase.

Communities in Montana and around the country were exposed to asbestos-contaminated ore that W.R. Grace mined and shipped from Libby, Mont. Lawyers for Libby residents contend the pollution has killed some 225 people and sickened about 2,000 in Libby.

Now, W.R. Grace and five former company officials face criminal charges of knowingly endangering lives by hiding the health risks of asbestos."

Amazon DMCAs vendor of ebooks for Kindle

According to Declan McCullagh Amazon has threatened to sue MobileRead.com under the DMCA to stop the latter company making available electronic books that could be read on the Amazon Kindle ebook reader.

"This week, an e-book Web site said Amazon.com invoked the 1998 law to prevent books from some non-Amazon sources from working on its Kindle reader.

Amazon sent a legal notice to MobileRead.com complaining that information relating to a computer utility written in the Python programming language "constitutes a violation" of the DMCA, according to a copy of the warning letter that the site posted. MobileRead.com is an e-book news and community site.

MobileRead.com forum moderator Alexander Turcic said in a post on Thursday that although he did not believe the program violated the law, the site would "voluntarily follow their request and remove links and detailed instructions related to it." Turcic said that, contrary to Amazon's claim, his site never "hosted" the software.

Amazon did not respond to a request for comment on Friday."

As ever IP-land is like groundhog day - same story repeated over and over with some variations. Shades here of Apple v RealNetworks ("ethics of the hacker...breaking into the iPod" etc. - Apple loves and extensively threatens the DMCA from iPods to iPhones), Lexmark v Static Control (blocking competitor selling cheap printer cartridges for Lexmark printers), and Chamberlain Group v Skylink (the DMCA and garage door openers).

Law Lord: government sanctioned illegal surveillance

Via Nicholas Bohm on the ukcrypto list, comes a link to a fascinating decision from the House of Lords this week on the surveillance of lawyers' discussions with their clients facilitated by the Regulation of Investigatory Powers Act, 2000. Lord Phillips, dissenting from the majority view, says:

"The appeal raises... two issues of general importance:

i) What impact, if any, does the Regulation of Investigatory
Powers Act 2000 (“RIPA”) have on the common law right
of legal professional privilege (“LPP”)?
ii) What impact, if any, does RIPA have on the right accorded
by a number of statutory provisions of a person detained in
a police station or in prison to consult a lawyer privately?

52. On 30 November 2007 the Divisional Court held that monitoring
of legal consultations in police stations or prison cannot lawfully be
authorised under the Code in its present form. The reaction of the
Secretary of State to that finding was made clear by Mr Fordham in his
written case on her behalf. This was that, contrary to the decision of the
Divisional Court, the Code covered consultations between legal advisers
and their clients. I quote from paragraph 7(4)(5) that case:

“(4) The safeguards contained within RIPA and the Code
are sufficient to ensure, in the case of directed surveillance
in both of the relevant factual scenarios, the requisite
quality of law to satisfy the Art. 8 requirement “in
accordance with the law”.

(5) The Secretary of State nevertheless recognises the
sensitivities that surround the possible use of directed
surveillance in the two factual contexts at issue, and has
carefully considered the Divisional Court’s concern
regarding the adequacy of the safeguards that would apply
at the point when any such directed surveillance was
authorised. The Secretary of State would wish to make
clear at the outset that, as a matter of policy, she considers
it desirable to take the steps necessary to remedy the
concern identified by the Divisional Court. In effect,
directed surveillance of legal consultations in detention
would fall to be assimilated to “intrusive surveillance” for
the purpose of prior authorisation. That could readily and
properly be achieved by an order under RIPA s. 47(1)(b)
characterising as “intrusive”, surveillance in locations
where it is known that consultations are taking place
between detainees and their legal advisers.”

53. This stance was not satisfactory. The Divisional Court did not
express concern. It made a finding of law against the Secretary of State.
She chose not to appeal against that finding. In those circumstances it
was not open to her to consider as a matter of policy whether to “take
the steps necessary to remedy the concern identified by the Divisional
Court”. The position was simply that unless and until she took the
appropriate steps she could not lawfully continue to carry out
surveillance on legal consultations in prisons or police stations..."

Baroness Hale however, reluctantly says:

"67. I agree, for the reasons given by my noble and learned friends
Lord Hope of Craighead and Lord Carswell, that RIPA does permit
the covert surveillance of communications between lawyers and their
clients, even though these may be covered by legal professional
privilege and notwithstanding the various statutory rights of people
in custody to consult privately with their lawyers. This is an
unpalatable conclusion, but one to which I am driven both by the
plain words of the Act and by the history of legislation on this
subject."

Lord Carswell:

"92. The appellants have brought this appeal in order to challenge the
finding of the majority of the Divisional Court that RIPA was
intended to extend to legal or medical consultations...
The Secretary of State has, however, stated
that she is willing to make an order under section 47(1)(b) of RIPA
characterising surveillance of consultations between detainees and
their legal advisers as intrusive surveillance, with the safeguards
which go with that level of surveillance. If done, this would make
consideration of directed surveillance of such consultations
superfluous. It is regrettable, however, that no step has yet been
taken to make the necessary order, notwithstanding the fact that the
present practice was declared unlawful over a year ago, and no
appeal was brought against the court’s decision. Having said this, I
do not propose to enter into further discussion of the proportionality
of directed surveillance of legal or medical consultations, save to say
that I agree with the conclusion reached by the Divisional Court...

100. I commence with the wording of RIPA. In its natural and
ordinary sense it is capable of applying to privileged consultations
and there is nothing in its wording which would operate to exclude
them... It seems to me unlikely that the
possibility of RIPA applying to privileged consultations could have
passed unnoticed. On the contrary, it is an obvious application of the
Act, yet no provision was put in to exclude them.

105. I conclude accordingly that Parliament intended that the covert
surveillance provisions of RIPA should extend to the type of
lawyer/client and doctor/patient consultations which are ordinarily
protected by legal professional privilege."

Lord Neuberger:

"106. In my view, Part II of the Regulation of Investigatory Powers Act
2000 (“RIPA”) permits covert surveillance of communications and
consultations between a person in custody and his or her lawyer,
notwithstanding that such communications enjoy legal professional
privilege, and despite such a person’s statutory right to consult a
solicitor privately."
[...]

108. If covert surveillance is carried out in accordance with Part II of
RIPA, the natural meaning of the opening words of section 27(1) is
that, whatever rights would otherwise be infringed thereby, the
surveillance is nonetheless lawful. As Lord Phillips’s admirable
survey of the law demonstrates, this case involves two rights, which
are different, but very closely connected, namely the right of a
person to consult a lawyer in private, and the right to legal
professional privilege in connection with communications with one’s
lawyer. Any modern civilised legal system recognises the
fundamental importance of these two rights, and therefore one feels
an instinctive initial reluctance to hold that section 27(1) permits
covert surveillance of such consultations and communications, as it
would appear significantly to undermine such important rights.
109. However, while these two rights are very important, neither can
possibly be regarded as unqualified. Both rights can self-evidently
be abused for improper, even criminal, purposes; indeed, as a result
of such abuse, the rights themselves could fall into disrepute...

111. It must be acknowledged that there are two inherent paradoxical
problems in the exercise of intercepting or listening in on privileged
communications and private consultations between lawyer and
client. First, the authorities cannot know if the privilege and right to
privacy are being abused and that the iniquity exception applies,
until the interception or listening in has occurred and its results
examined. Secondly, the authorities cannot warn the parties in
advance that interception or listening in will or will not occur, as to
do so would defeat the whole point of the exercise. Further, it is selfevident
that knowing that a consultation or communication may be
the subject of surveillance could have a chilling effect on the
openness which should govern communications between lawyer and
client, and is the very basis of the two rights. However, none of these
problems can call into question the lawfulness of the statutory
authorising of the surveillance of privileged communications,
although they underline the fundamental requirement of clear and
stringent rules governing the authorisation, circumstances, manner,
and control over the fruits, of any such surveillance.

112. Accordingly, there is nothing intrinsically objectionable in a
statute which authorises surveillance of communications and
consultations between a lawyer and client, provided that the statute
includes safeguards which ensure that such authorisation complies in
all respects with the requirements of the Convention. Additionally, I
see no reason why the safeguards cannot be in a Code of Practice, at
least if the statute provides that such a code has to be created and
complied with (as is the position here – see sections 71 and 72 of
RIPA); that is all the more true where, as here, the code has to be
laid before Parliament...

118. Lord Phillips has characterised the nature of the decision of the
majority of your Lordships as being that RIPA permits the Code to
authorise surveillance of communications between lawyers and their
clients, whether or not in custody. That is indeed as far as our
decision in this case goes, and we should not, I think, be taken as
thereby endorsing the provisions of the Code, as we are not directly
concerned with those provisions, and, in particular, whether they
comply with the requirements of the Convention. Indeed, in my
view, it must be highly questionable whether the Code sufficiently
clearly identifies (or limits) either the circumstances in which
surveillance may or may not occur, or how the information thereby
obtained may or may not be used. At least as at present advised I
share the doubts and concerns about the Code expressed by Lord
Phillips at paras 49 to 51. The question of the use of material
obtained by surveillance could have arisen in one of the cases before
us, namely that of M, had he not been released without charge, and,
in that connection, I agree with Baroness Hale’s observations at
paras 71to 74.

119. I also respectfully agree with what Lord Phillips says at paras 52
and 53. Having decided not to appeal the Divisional Court’s decision
that surveillance of privileged and private consultations under the
present regime is unlawful, the Secretary of State should have
ensured that such surveillance did not take place or she should have
promptly changed the regime so as to comply with the Divisional
Court’s decision. As Lord Carswell points out, more than a year has
elapsed since that decision, and your Lordships were told that the
Secretary of State was not even in a position to produce a draft
regulation embodying the changes to ensure that such surveillance
was carried out legally. Unless no surveillance of privileged and
private consultations has been going on for the past year in the
United Kingdom (which appears most unlikely), this strongly
suggests that the Government has been knowingly sanctioning illegal
surveillance for more than a year. If that is indeed so, to describe
such a state of affairs as “regrettable” strikes me as an
understatement."

So RIPA can facilitate surveillance of privileged consultations between solicitors and clients but only under carefully regulated conditions which should be specified in the RIPA Code of practice, which in turn would make it compliant with the European Convention on human rights. Though it wasn't a question for the Lords in this instance, however, the Code was declared not compliant with the Convention by the Divisional Court a year ago and so, Lord Neuberger says, the government has probably been "knowingly sanctioning illegal surveillance for more than a year" and government suggestions that such a state of affairs is "regrettable" strikes him as an "understatement."

Translating from law-lord-ese he's basically saying the Secretary of State has been outrageously incompetent in not getting the RIPA Code put in order.

EU Parliament wants transparency on ACTA

At least the EU parliament is apparently asking for more transparency on legislative documents and international agreements like the Anti-Counterfeiting Trade Alliance ACTA.

"No legislative documents should be kept secret: this must be a basic principle of the reformed policy on access to documents, the European Parliament says in a vote on a new EU rules on the issue. Members adopted amendments to the draft proposal but postponed the vote on the legislative resolution, leaving the door open for further negotiations and a first-reading agreement. The European Parliament adopted amendments on the basis of a codecision report drafted by Michael CASHMAN (PES, UK) in order to revise the 2001 regulation on access to documents, which has been followed by a number of rulings by the Court of Justice. The revised regulation will incorporate these rulings into a single framework for all the institutions, but MEPs want to go further...

Documents on International agreements to be made public

International accords on the sharing of confidential information concluded in the name of the EU (such as the agreement with the USA on passenger name records or "PNR"), must not give a non-EU country or an international organisation the right to prevent the European Parliament from accessing confidential information.

Members also call the Commission to make available all documents related to the ongoing international negotiations on the Anti-Counterfeiting Trade Agreement (ACTA) - which will contain a new international benchmark on intellectual property right enforcement. "

Update: Meanwhile on the other side of the pond the Obama administration has declared ACTA documents to be state secrets, or more precisely, "information that is properly classified in the interest of national security pursuant to Executive Order 12958."

Sound copyright: How extending copyright term in sound recordings actually works

I has the privilege of attending the First Arcadia Lecture given by James Boyle at Wolfson College Cambridge yesterday evening. As ever, James spoke passionately, eloquently and entertainingly, this time on "Cultural Agoraphobia and The Future of The Library".

James Boyle argues that we have a bias that makes us unduly skeptical of open networks, systems and methods of production. The success of non proprietary systems -- ranging from open source software to Wikipedia and the open Internet itself -- fills us with surprise. He calls this bias "cultural agoraphobia." In a world where all texts were tangible, the institution of the library stood for the proposition that a certain degree of openness was good; that a place that allowed free access to knowledge by every citizen was one of the defining institutions of a liberal society and culture. How will that principle change or evolve in the digital world? Will it survive at all? What is the future of the library in a world grappling with cultural agoraphobia?

His explanation of how, until 1976 in the US, 85% of most cultural works from the 20th century fell into the public domain after 28 years but since then nearly all of 20th century culture has been locked up, had a particularly profound impact on the audience. From 1976 changes in the law, removing the need to register and renew works and successive extensions of copyright term means that, in the US, most creative works since 1923 are still protected by copyright - most of these no longer commercially available and/or copyright owners impossible to identify.

Back in the evidence free world of IP policymaking, sadly the EU presses ever closer to extending the term of copyright in sound recordings by 45 years. They really should read James' latest book, The Public Domain, but given the average attention span of a modern politician maybe they could be persuaded to scan Sound Copyright's relatively short but really very good brief on How extending copyright term in sound recordings actually works and the associated evidence. I'm sure they won't mind me posting it here:

"Introduction
The European Commission has proposed to extend the term of copyright in sound recordings in a move "aimed at performers". We believe this does not address the problem it claims to, while imposing serious costs on consumers, follow-on innovators and re-users of information. We also believe it endangers the basis of public respect and acceptance of intellectual property.

How copyright works
Copyright is a monopoly granted for a limited time to incentivise artists and performers to create works, while protecting the interests of society at large in having access to those works. It exists because copying creative works, as opposed to, say, "copying" crops, or cars, is much easier thancreating them from scratch. Artists need protection from those who would copy their work, and so we have copyright. But a society needs access to its cultural heritage and protection from
entrenched monopolies, and so copyright is time-limited.

It is important that policy-makers get the balance of copyright right. The Adelphi Charter, a framework for policy makers considering changes to intellectual property legislation, urges governments to automatically presume against extending the scope or term of intellectual property rights, stating that "the burden of proof in such cases must lie on the advocates of change".

The evidence on term extension
In 2005 Andrew Gowers, former editor of the Financial Times, conducted an independent review of the UK's Intellectual Property Framework. Working with the Centre for Intellectual Property and Information Law (CIPIL), Cambridge, the review took a rigorous, evidence-based approach. In examining issues of parity, balance of trade, incentive, cost to consumers and fairness, it concluded against extension.

In 2006 a study initiated by the Commission's DG Markt, from the Institute for Information Law (IViR), University of Amsterdam, found that any extra "revenues would have to be paid by users and consumers of sound recordings" and concluded that the case for extension was unconvincing.

In 2008 the leading European centres for intellectual property research released an impact study and review of the evidence. Concluding that the prime beneficiaries would be the owners of large back catalogues, competition would be impeded and consumer prices higher, it, too, recommended against extension.

CIPL. The PwC study, based on analysis of 129 recordings, admits that its findings are unreliable:

[This study is not of] a large number of recordings, relative to the amounts, to be introduced in the future... Hence, there is no certainty that the current observed effect (i.e. lack of price differential of in-copyright and out-of-copyright recordings) will be repeated in the future.

The cost to consumers, follow-on innovators and cultural diversity
It is logically impossible to have benefits for producers or performers with no costs to consumers. The reality for consumers, according to CIPIL, is more likely to be one of significant costs "of between 240 and 480 million pounds."

The Commission's impact assessment ignores the cost to information professionals and follow-on innovators such as musicians, film makers and public domain record labels who will incur costs in licencing recordings that are in copyright for another 45 years, and in seeking permission to use works which may or may not have been affected by the proposed "use it or lose it" clause.

There is no strong basis from which to argue that record companies will be incentivised by a term extension to digitise niche cultural works. The Commission has conceded that "phonogram producers will focus on re-issuing the premium CDs during the extended term, i.e., those with very high profit margins". Contrasted with non-rightsholder efforts to digitise works of historic value, such as those of music fan Christopher Bolling, who single-handedly archived 4,000 tracks from old 78rpm records, it becomes clear that allowing recordings to enter the public domain is of
significant value to cultural diversity.

Who really benefits?
The Commission estimates the performers' share of new sales revenues from the proposed extension at 10%. However, this conveniently ignores their own statement that redistribution will be highly skewed in favour of the top earning 20% of performers. From that 10% share "between 77% and 89.5% of all income ... goes to the top 20% of earning performers".

For the vast majority of performers the projected extra sales income resulting from term extension is likely to be meagre: from as little as 50¢ each year in the first ten years, to as “much” as €26.79 each year.

Performers' remuneration from broadcasting, public performance or private copying compensation will be affected. Assuming that licencing fees remain constant, earnings to performers will not grow but be sliced more thinly and distributed for longer to more estates of deceased artists. Artists living now will not earn more over their life time.

Moreover the proposed session musician fund comes at a tax of 400%. For every €1 allocated to performers, record labels will get €4.

Each major label would be expected to gain €8.2million—€163million over the 45 year term. That, in turn, works out at €205,000—€4.075m per label per year. This is a windfall for record labels.

As the leading centres for intellectual property research wrote to Commission president Jose Manuel Barroso:

"There are many possible measures that would not result in monopolising the back
catalogue of recorded music for another half century.

“[Member states] could regulate of copyright contracts, and social security and insurance schemes; and at the European level, [examine] equitable remuneration rights only available to living performers, and the regulation of collecting societies and licence tariffs, such as the nature and distribution of income from any copyright levy scheme.”

Conclusion
This proposal, unsuccessfully lobbied for at Member State level, is not about helping poor performers despite the claims. In refusing to confront the critical arguments, it ignores the balance of evidence, bringing serious costs to consumers, follow-on innovators and re-users of sound recordings. It also endangers the basis for public respect and acceptance of intellectual property.

As the Commission's own advisers have stated:

[It] reveals an intention to mislead the Council and the Parliament, as well as the citizens of the European Union. In doing so the Commission reinforces the suspicion, already widely held by the public at large, that its policies are less the product of a rational decision-making process than of lobbying by stakeholders.

MEPs now have to defend the rights of ordinary citizens and reject this bogus proposal in the strongest terms."

EU copyright term extension vote

Leading intellectual property academics are warning again of the dangers of the proposals coming before the EU parliament on 23 March to extend copyright term in sound recordings. The copyright term webpage at the Centre for Intellectual Property Policy & Management at Bournemouth University says:

"On 23 March 2009, the European Parliament is due to vote on a Directive, extending the term of copyright for sound recordings. Such an extension, from 50 to 95 years (or perhaps 70 years), will harm Europe’s culture and economy.

A signed press release from key European experts opposing the extension has been released, including: the Centre for Intellectual Property Policy & Management (CIPPM), Bournemouth University; Centre for Intellectual Property & Information Law (CIPIL), University of Cambridge; Center in IT and Law (CRID), Universitaires Notre-Dame de la Paix de Namur; Centre for International Intellectual Property Studies (CEIPI), University of Strasbourg; Max-Planck-Institute for Intellectual Property, Competition and Tax Law, Munich; Institute for Information Law, University of Amsterdam; Centre for Intellectual Property Rights, Catholic University Leuven; NEXA Center for Internet & Society, Politecnico di Torino.

View the Joint Press Release by European Academics - 11 March 2009 (pdf - 319kb) press release.

Additionally, a list of independent studies and the key signatories opposing the proposed Copyright Term Extension is now available.

Download Independent Studies of Copyright Term Extension (pdf - 150kb)"

It's worth quoting the press release in full:

"Joint Press Release by European Academics (11 March 2009)

The Proposed Directive for a Copyright Term Extension

On 23 March 2009 the European Parliament is due to vote on a Directive,
extending the term of copyright for sound recordings. Such an extension, from 50
to 95 years (or perhaps 70 years), will harm Europe’s culture and economy.
The Directive was proposed by Internal Market Commissioner Charlie McCreevy,
against the advice of all independent studies on the issue. The legislative
process was rushed, and there has been only the most superficial parliamentary
scrutiny.

The European Parliament is being asked to remove sound recordings from the
public domain for another generation, ostensibly in order to benefit performers. In
reality, copyright extension will serve the shareholders of four major multinational
companies that control the valuable recordings of the 1960s (Universal, Warner,
Sony and EMI).

It is not surprising that many performers’ organisations and collecting societies
support the Proposed Directive. They do not have to carry the costs – which are
likely to exceed EURO 1 billion to the general public (analysis based on the
Commission’s own figures – see study 8, below). Many performers also do not
appear to understand that the proposal would lead to a redistribution of income
from living to dead artists.

If Europe wishes to keep its ability to innovate, it must not lock in the current
industry structure at a moment of great technological change, it must not inhibit
digital creators and archives in the exploration of music - music which has been
paid for once already, during the existing term!

The public will not be fooled. If copyright law, cynically, departs from its purpose,
piracy becomes an easy option.

If the Proposed Directive really wanted to help living performers, it would (i) limit
the term to the artist’s life, (ii) make such an extended term not transferable to
record producers (labels), (iii) regulate that the extended period will be managed
via collecting societies (ensuring that sound recordings will become available),
and (iv) regulate contracts during the existing term (e.g. by introducing use-it-orlose-it provisions).

We urge the European Parliament, and the governments of member states of the
European Union, to consider carefully the independent evidence on copyright
term extension, and reject the Directive in its proposed form."

Sound Copyright are again urging people to contact their MEPs about the issue. They also prvovide some really sensible tips on how to communicate with MEPs and an excellent crib sheet on the effects of term extension.

Times Newspapers v UK: European Court of Human Rights

The Times Newspaper group has lost its challenge against UK defamation law in the European Court of Human Rights. The Guardian article is a reasonable summary of the outcome in The Times Newspapers Ltd. (Nos. 1 and 2.) v. The United Kingdom, but fails to capture the subtleties of the decision. Not surprisingly the journalist and "media lawyers" and "experts" "condemned" the ruling though we're not told who the experts or media lawyers are. I read it as being very carefully and narrowly constrained to the facts of this particular case, so don't expect it to have a great deal of wider significance.

The Times published two articles in 1999 linking a Russian born businessman with the Russian mafia. He sued for libel and eventually won in March 2001. Significantly he also started a second libel suit on 6 December 2000 whilst the first was still ongoing, based on continued publication of the the articles without qualification in newspaper's internet archive. The Times left these articles in the archive without such qualification until 23 December 2000 at which point a notification was attached to each noting they were subject to a defamation lawsuit:

"“This article is subject to High Court libel litigation between [G.L.] and Times Newspapers. It should not be reproduced or relied on without reference to Times Newspapers Legal Department.”

(G.L. is the Russian businessman)

The Times argued unsuccessfully through the UK courts that there should be a single publication rule - as exists in the US - so they could avoid be sued multiple times over the same article. Without such a rule they couldn't maintain an effective archive and it was a significant burden on the right to free expression. The significant parts of the ECHR judgment against the Times, in my view, were:

"26. The applicant complains that the Internet publication rule constitutes an unjustifiable and disproportionate restriction of its right to freedom of expression as provided in Article 10 of the Convention, which reads, insofar as relevant, as follows:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others ...”

27. The Court has consistently emphasised that Article 10 guarantees not only the right to impart information but also the right of the public to receive it... he Internet plays an important role in enhancing the public's access to news and facilitating the dissemination of information generally. The maintenance of Internet archives is a critical aspect of this role and the Court therefore considers that such archives fall within the ambit of the protection afforded by Article 10...

47. On the facts of the present case, the Court considers it significant that, although libel proceedings in respect of the two articles were initiated in December 1999, the applicant did not add any qualification to the articles in its Internet archive until December 2000. The Court recalls the conclusion of the Court of Appeal that the attachment of a notice to archive copies of material which it is known may be defamatory would “normally remove any sting from the material”. To the extent that the applicant maintains that such an obligation is excessive, the Court observes that the Internet archive in question is managed by the applicant itself. It is also noteworthy that the Court of Appeal did not suggest that potentially defamatory articles should be removed from archives altogether. In the circumstances, the Court, like the Court of Appeal, does not consider that the requirement to publish an appropriate qualification to an article contained in an Internet archive, where it has been brought to the notice of a newspaper that a libel action has been initiated in respect of that same article published in the written press, constitutes a disproportionate interference with the right to freedom of expression. The Court further notes that the brief notice which was eventually attached to the archive would appear to undermine the applicant's argument that any qualification would be difficult to formulate.

48. Having regard to this conclusion, it is not necessary for the Court to consider in detail the broader chilling effect allegedly created by the application of the Internet publication rule in the present case. The Court nonetheless observes that the two libel actions brought against the applicant concerned the same two articles. The first action was brought some two to three months after the publication of the articles and well within the one-year limitation period. The second action was brought a year later, some 14 or 15 months after the initial publication of the articles. At the time the second action was filed, the legal proceedings in respect of the first action were still underway. There is no suggestion that the applicant was prejudiced in mounting its defence to the libel proceedings in respect of the Internet publication due to the passage of time. In these circumstances, the problems linked to ceaseless liability for libel do not arise. The Court would, however, emphasise that while an aggrieved applicant must be afforded a real opportunity to vindicate his right to reputation, libel proceedings brought against a newspaper after a significant lapse of time may well, in the absence of exceptional circumstances, give rise to a disproportionate interference with press freedom under Article 10.

49. The foregoing considerations are sufficient to enable the Court to conclude that in the present case, the finding by the domestic courts in the second action that the applicant had libelled the claimant by the continued publication on the Internet of the two articles was a justified and proportionate restriction on the applicant's right to freedom of expression.

50. There has accordingly been no violation of Article 10 of the Convention."

So because the Times was not even required to remove the articles from its archive during the timescale of the court proceedings, merely add a notice to each saying it was the subject of a libel case, it was not a big deal. And since they demonstrated how easy it was by eventually adding the qualification to the articles a few weeks after the second libel suit was brought, the newspaper's claims about it being an unnecessary burden were not credible according to the court. But - and this is the significant point that effectively restricts the decision to the narrow facts of the case - the court makes the point at the same time as finding against the newspaper that:

"The Court would, however, emphasise that while an aggrieved applicant must be afforded a real opportunity to vindicate his right to reputation, libel proceedings brought against a newspaper after a significant lapse of time may well, in the absence of exceptional circumstances, give rise to a disproportionate interference with press freedom under Article 10."

So the loud claims doing the rounds about the judgment undermining the freedom of the press can be taken with a pinch of salt. The Guardian report suggests that "experts" expect the Times to appeal the decision to the Court's Grand Chamber. I'm not a big fan of the UK's defamation laws but given the facts here they'd be better off taking the loss and not pouring any more money into m'learned friends pockets, at least in relation to the specifics of this case.

Is Google Book Search fair use?

I've been watching Larry Lessig's talk on Google book search from 2006, in connection with a postgraduate IT law course we're producing at the OU.



Recommended.

The complex new revenue flows of the music business

Johnny Black had a nice article in the Guardian on Friday, So Who's the Biggest Star?

"It used to be easy to tell who the big acts were. If an artist appeared regularly on Top of the Pops or lodged their releases consistently in the charts, we knew they were popular and, very probably, financially successful.

That's no longer true. There are now hitmakers who appear frequently on TV, who are household names and faces, but who are not making fortunes. At the same time, increasing numbers of relatively unknown musicians are quietly getting rich without their faces ever appearing in Heat magazine, or even NME. The old rules for judging pop success no longer apply...

..."We need to look at a lot more factors to be able to determine who's really doing well today... the way their incomes are made up is much more complex. It's not just about how many records, or even concert tickets, you have sold."

...the increasingly lucrative revenue streams artists can tap into from a host of sources - including what is called "synchronisation", product endorsements, merchandising, internet streaming, ringtones, magazine cover mounts and broadcasting royalties.

Synchronisation means getting your music into TV ads, TV series and movies, and on to ringtones and computer games. It can be hugely lucrative: "Aerosmith have probably earned more through royalties in Guitar Hero than they have from selling albums in the past two decades," suggests Sat Bisla, founder of Musexpo, an annual Los Angeles-based international music and media conference."

We've seen business models evolving and getting increasingly complex in the music industry and although I've been watching the process with a kind of abstract academic eye for such a long time now, I don't know if I really got it until one day my then 10-year old son said he wanted to get some CDs by a rock group I had never heard of. Where had he come across this group? They produced the background tracks on one of the computer games he was particularly fond of at the time. He tracked down the name of the band, then actively sought out other samples of their work on YouTube and decided he liked them so much it was worth saving up his pocket money to acquire some of their CDs. Now if a 10-year-old with seriously limited disposable income can go to so much trouble then surely the promotional worth of outlets like computer games and YouTube must be obvious to even the most old style music executive, mustn't it? Mind you, I do have to admit, still, to completely failing to understand why the ringtones market is so lucrative. Perhaps I too could have been an executive at one of the big four?

Trademarks: honesty not a sufficient defence

There was an interesting trademark case, Essex Trading Standards v Singh [2009] WLR (D) 81 in May of last year that noted that an honest belief that you are not infringing a trademark is not a defence - you have to be able to prove that that honest belief was reasonable. So if you spend a day looking after a market stall for a mate with a history of dodgy dealings who has assured you that all the gear on the stall is legitimate, you can still be held responsible for trademark infringement.

"In order to acquit a defendant of a charge of unauthorised use of registered trade marks in relation to goods, contrary to s 92(1)(c) of the Trade Marks Act 1994, under the statutory defence provided by s 92(5) of the Act, it was not enough for the court to conclude on the facts that the defendant had acted in the honest belief that the use of the signs was not an infringement of the registered trade marks; it was also necessary to find that he had reasonable grounds for so believing.

The Divisional Court of the Queen’s Bench Division so held when allowing an appeal by way of case stated by the claimant, Essex Trading Standards, against the decision of 16 May 2008 of the Justices for the County of Essex to acquit the defendant, Wallati Singh, of two offences under s 92(1)(c) of the 1994 Act.

The defendant had been charged with having in his custody and control in the course of a business a quantity of trainers bearing the Nike sign or logo (the registered trademark of Nike International Ltd of Oregon, USA), and trainers bearing the BAPE sign or logo (the registered trademark of Nowhere Co Ltd of Tokyo) with a view to selling them at Pitsea Market, Basildon. The defendant had agreed to mind the stall on behalf of a friend, Anthony Hooper, who worked as a market trader in sports shoes. In evidence, he denied that he knew the trainers were counterfeit, claiming that he had asked Mr Hooper if the trainers were legitimate and that Mr Hooper had confirmed that they were; that he had no experience that would have enabled him to distinguish between legitimate and counterfeit trainers; and that he was of good character.

GOLDRING LJ said that s 92(5) placed a legal, persuasive burden on the defendant. The issue for determination was whether, by asking his friend whether the goods were “OK” or “dodgy” (counterfeit), to which Mr Hooper was alleged to have replied that “it was all sweet, stock clearance, a job lot”, the defendant had discharged that burden. In his Lordship’s view, the magistrates were not entitled to conclude that the defendant had shown that he believed on reasonable grounds that the use of the signs was not an infringement of the registered trade marks. The defendant had known that they had been transported in a van that did not belong to Mr Hooper, but to the defendant’s brother who had previously been warned by Trading Standards Officers for selling counterfeit goods; he had not seen, or sought, documentation; he had relied solely on the word of a person unwell due to drug addiction. Although the magistrates had correctly sought to apply the principles set out in R v Johnstone [2003] 3 All ER 884, they had failed to have regard to that part of the judgment to which they had referred in their first question, namely that “those who act honestly and reasonably are not to be visited with criminal sanctions”. It was not enough to conclude that the defendant had acted honestly; he had to have acted on reasonable grounds also. The defendant had not done so on the evidence, as any reasonable bench of magistrates had been bound to conclude. The magistrates were entitled to have regard to the defendant’s previous good character, but it was irrelevant in deciding whether the grounds for his belief were reasonable."

Conyers fails to explain opposition to open access to science

From Michael Eisen at the Huffington Post:

"Lawrence Lessig and I have been writing about the link between publisher contributions to members of the House Judiciary Committee and their support for H.R. 801 - a bill that would end the newly implemented NIH public access policy that makes all works published as part of NIH-funded research freely available online. On Friday, House Judiciary Chairman John Conyers (D-MI) - lead sponsor of the bill - responded in a letter on Huffington Post.

The first several paragraphs of Conyers' letter contain an outline of his record as a progressive politician. But no record, no matter how distinguished, is an excuse for introducing an atrocious piece of legislation that sacrifices the public interest to those of a select group of publishing companies.

Conyers would have us believe that it is just a coincidence that his bill would erase a government policy vehemently opposed by publishers who have contributed to his campaigns. But his response to our letter - like the bill itself - is taken straight from the publishers' playbook.

Conyers trots out the publishers' two favorite lines of attack against the policy: 1) that the NIH policy is taking a right (in this case a copyright) away from publishers, and 2) that making taxpayer-funded research available to taxpayers will bankrupt publishers and thereby destroy science.

Both arguments are specious and reflect fundamental ignorance about how science and scientific publishing work...

Far from being the reckless act Conyers portrays, the NIH policy is actually fairly conservative. It requires that papers that arise from NIH funded research be made freely available, through a website run by the National Library of Medicine, within 12 months of publication - not immediately. This delay between publication and free public access was put in precisely because it will allow publishers to recoup, and profit from, their investment in publishing by charging for access to the freshest material.

Science moves far too fast for active researchers to afford a year's delay before reading papers in their field. Thus universities and other research institutions have to maintain subscriptions to journals even if their year-old content is freely available. Many journals, realizing that their revenue comes primarily from new material, already make their complete contents freely available online after a year or less. And these journals have not reported a wave of canceled subscriptions - or any appreciable loss of revenue. So both empirical data and publisher actions refute Conyers' central argument against the NIH public access policy.

Conyers' argument is also clouded by several misconceptions about scientific publishing. He correctly identifies peer review as the most important role of scientific journals. But he is incorrect in his assertion that publishers make a tremendous investment of "their own, non-federal resources" in the process of peer review. While publishers supervise peer review, the process itself is carried out voluntarily by members of the research community. Scientists receive no remuneration whatsoever when they review a paper - they do it instead out because they recognize that peer review is central to the scientific process.

Since the salaries of most American scientists are paid, directly or indirectly, by the US government, the peer review process is actually a massive federal subsidy to publishers, whose very existence is based on the tens of billions of annual taxpayer dollars invested in scientific research. That even after they have had a year to profit from this taxpayer largesse some publishers are still unwilling to grant the public access to copies of papers they paid to produce and review is unconscionable.

And while Representative Conyers' publishing friends may have convinced him that there are severe unintended consequences that will arise from the NIH public access policy, the scientific community - who has been debating this issue for over a decade - strongly disagrees. Elias Zerhouni - who was NIH Director until last year - spent years crafting this policy in consultation with scientists, publishers, and members of Congress. It is strongly supported by his predecessor, Nobel laureate Harold Varmus, and a cadre of his American Nobel prizewinning colleagues. And the world's leading private medical research organizations - the Howard Hughes Medical Institute and the Wellcome Trust - have, after extensive research and discussion, adopted even more aggressive policies than the NIH. Does Representative Conyers really think he better understands what's good for science than they do all of these groups and people?"

Alleged sewer grate photographer arrested under terrorism laws

Via Cory Doctorow:

"Have a look at this news-video about Stephen Clarke, a man who was accused to taking pictures of sewer-gratings in Manchester and arrested. Though the police couldn't find any photos of sewer-gratings on his phone (and even though "what a sewer grating looks like" isn't a piece of specialized terrorist intelligence), he was held on suspicion of planning an act of terror, imprisoned for two days while the police searched his home, his phone and his computer. When they couldn't find anything suspicious, they released him, but kept his DNA on file, as the biometric of someone who had been accused of plotting a terrorist act."

Mr Clarke is familiar with the European Court of Human Rights ruling in S. and Marper v. The United Kingdom in December last year and is planning to press to have his DNA and fingerprints removed from the police databases.

Clause 52 Coroners and Justice Bill

Important prompt from the Open Rights Group:

"Refuse consent for information sharing

Posted by Jim Killock in Data Protection, Identity at March 6th, 2009

Information sharing provisions in the draft Coroners and Justice Bill include some of the most wide-ranging and potentially intrusive proposals ever laid before Parliament. In particular, clause 152 is a profound threat to privacy, liberty and the rule of law.

The new powers are designed to give ministers a fast-track procedure to share data across departmental databases, overriding data protection, human-rights and confidentiality.

We strongly object to these powers on the basis of principle and practice. On principle, they would sweep away fundamental democratic liberties. In practice, the Government has consistently failed to manage large-scale ICT projects, resulting in massive data losses and vast expense.

Just as importantly, Parliamentary scrutiny will be sidestepped by introducing information sharing orders via secondary legislation, overseen only by the toothless Information Commissioner’s Office.

Polls show the public are against the proposals, which would give Government far too much power over our personal data. But polls aren’t always important: it’s up to you, the committed, motivated few to stand up to protect the rights of the wider community.

We can make a difference and, with the bill scheduled for a third reading in the House of Commons during March, its vital we take action now. We are asking three things from you:

1. Please write to your MP today - very simple using writetothem - about clause 152 of the Coroners and Justice Bill, stating explicitly that you refuse to consent for your personal data to be used under any information sharing order. Explain in personal terms the harm to society that these powers will cause and demand that they stand up against clause 152.
2. Please go along to MP’s surgery and press for a face to face conversation. Many of you have the technical expertise to clearly explain the risks associated with the database state in general and data-sharing in particular, which is key to understanding why clause 152 is so dangerous.
3. To raise awareness of clause 152, please blog about this call to action and your related correspondence.

Further materials

1. This Privacy International Black Zone report includes extended commentary and a detailed list of data-sharing examples.
2. This NO2ID briefing indicates both the broad concerns and gives a detailed legal analysis of the proposal.
3. NO2ID also have an extensive archive of background material

Open Rights Group is funded by technologists who care for digital rights. Please donate."

The Government obsession with giving those clever computer things voluminous amounts of personal data in the hope that they will automatically fix complex, systemic, social, economic, regulatory and environmental problems is stupidly dangerous. I am reminded of a terrific article, Privacy in a Noise Society, from about 5 years ago by Nicklas Lundblad at the St Anna Institute in Stockholm. Abstract:

"In this paper, an economic study of different levels of expected
privacy, both individual and collective, is used to demonstrate
that we live neither in a dystopian control society nor in a utopian
privacy enhanced society, but rather in a noise society
characterized by high collective expectations of privacy and low
individual expectations of privacy. This has profound
consequences for the design of privacy law, privacy enhancing
technologies and the sociology of privacy."

As Lundblad says "...anyone but not everyone can be mapped in detail...We live in a society where it is possible to chart the lives of anyone, but not the lives of everyone." Information overload and cost effectively preclude the latter.

UK government ministers, at least of the current Nu Labour brand, seem just destined not to get it.

Latest US copyright bill seeks to end free access to health information

The latest in a long line of special interest intellectual property laws has started its trek through the Congressional approval processes.

"The Fair Copyright in Research Works Act would reverse a National Institutes of Health policy set last year that held that the public should not have to pay to see the results of medical research funded with taxpayer dollars. The bill would prevent other agencies from making similar rules regarding free public access to published studies.

The bill, still in committee, has patient advocates, scientists, librarians and others up in arms...

"I don't think there's a good thing to say about this bill. It's basically a corporate giveaway," said Jessica Litman, a copyright law professor at U-M. "The people own it, they shouldn't have to pay to see it again.""

The "Fair Copyright in Research Works Act"? Now how could anyone oppose a fair copyright in research works act? The world of IP is so depressingly Groundhog Day like, except that unlike Bill Murray's character in the film it doesn't get any better.

In defence of lever voting machines

Interesting article on lever voting machines at OpEdNews which I missed in the summer of 2008.

"I have been voting on lever machines since 1972. They may be old-fashioned, but their durability is proven by the very fact that they are still in service. I am not alone in trusting them. So does Bryan Pfaffenberger, Professor of Science and Technology at the University of Virginia, who was awarded a National Science Foundation grant to study lever machines. Pfaffenberger agrees that the reliability of lever machines, which were expressly designed in response to fraudulent counting of paper ballots, "has been proven in a century of service." He concludes that, "the lever machine deserves recognition as one of the most astonishing achievements of American technological genius."

I am on record as an advocate of paper ballots, counted by hand, at the polling place, in full public view, on Election Night, no matter how long it takes. I arrived at this position as a direct result of an audit of the 2004 presidential election in Ohio, undertaken at an unprecedented scale, under my direction. Rady Ananda, an election integrity advocate and a veteran of the Ohio investigation, is quite correct in stating that "our call for hand-counted paper ballots is directly related to our distrust of computerized voting systems."

Pfaffenberger believes "that there would be no such call for paper if the ugly history of fraudulent practices enabled by paper ballots were known." To the contrary, I am well aware of an astonishing variety of fraudulent methods utilized in Ohio, where, in the 2004 election, 85% of the votes were cast on paper -- 70% on punch card ballots, and 15% on paper ballots run through optical scanners. The other 15% of the votes were cast on electronic voting machines."

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."