Google not liable for defamation in serach results

Mr Justice Eady in the UK High Court has ruled that Google can't be held liable for defamatory comments found in search results produced by the company's search engine.

"

My conclusions on publication

48. I turn to what seems to me to be the central point in the present application; namely, whether the Third Defendant is to be regarded as a publisher of the words complained of at all. The matter is so far undecided in any judicial authority and the statutory wording of the 1996 Act does nothing to assist. It is necessary to see how the relatively recent concept of a search engine can be made to fit into the traditional legal framework (unless and until specific legislation is introduced in this jurisdiction).
49. It has been recognised, at common law, that for a person to be fixed with responsibility for publishing defamatory words, there needs to be present a mental element. I summarised the position in Bunt v Tilley at [21]-[23]:

"21. In determining responsibility for publication in the context of the law of defamation, it seems to me to be important to focus on what the person did, or failed to do, in the chain of communication. It is clear that the state of a defendant's knowledge can be an important factor. If a person knowingly permits another to communicate information which is defamatory, when there would be an opportunity to prevent the publication, there would seem to be no reason in principle why liability should not accrue. So too, if the true position were that the applicants had been (in the claimant's words) responsible for 'corporate sponsorship and approval of their illegal activities'.

22. I have little doubt, however, that to impose legal responsibility upon anyone under the common law for the publication of words it is essential to demonstrate a degree of awareness or at least an assumption of general responsibility, such as has long been recognised in the context of editorial responsibility. As Lord Morris commented in McLeod v St Aubyn [1899] AC 549, 562: 'A printer and publisher intends to publish, and so intending cannot plead as a justification that he did not know the contents. The appellant in this case never intended to publish'. In that case the relevant publication consisted in handing over an unread copy of a newspaper for return the following day. It was held that there was no sufficient degree of awareness or intention to impose legal responsibility for that 'publication'.

23. Of course, to be liable for a defamatory publication it is not always necessary to be aware of the defamatory content, still less of its legal significance. Editors and publishers are often fixed with responsibility notwithstanding such lack of knowledge. On the other hand, for a person to be held responsible there must be knowing involvement in the process of publication of the relevant words. It is not enough that a person merely plays a passive instrumental role in the process. (See also in this context Emmens v Pottle (1885) 16 QBD 354, 357, per Lord Esher MR.)"

The passage to which I referred in Emmens v Pottle concerned defendants who were said by the Master of the Rolls to have been prima facie liable, on the basis that they had handed to other people the newspaper in which there was a libel on the plaintiff...


50. When a search is carried out by a web user via the Google search engine it is clear, from what I have said already about its function, that there is no human input from the Third Defendant. None of its officers or employees takes any part in the search. It is performed automatically in accordance with computer programmes.
50. When a snippet is thrown up on the user's screen in response to his search, it points him in the direction of an entry somewhere on the Web that corresponds, to a greater or lesser extent, to the search terms he has typed in. It is for him to access or not, as he chooses. It is fundamentally important to have in mind that the Third Defendant has no role to play in formulating the search terms. Accordingly, it could not prevent the snippet appearing in response to the user's request unless it has taken some positive step in advance. There being no input from the Third Defendant, therefore, on the scenario I have so far posited, it cannot be characterised as a publisher at common law. It has not authorised or caused the snippet to appear on the user's screen in any meaningful sense. It has merely, by the provision of its search service, played the role of a facilitator.
54. The next question is whether the legal position is, or should be, any different once the Third Defendant has been informed of the defamatory content of a "snippet" thrown up by the search engine. In the circumstances before Morland J, in Godfrey v Demon Internet, the acquisition of knowledge was clearly regarded as critical. That is largely because the law recognises that a person can become liable for the publication of a libel by acquiescence; that is to say, by permitting publication to continue when he or she has the power to prevent it. As I have said, someone hosting a website will generally be able to remove material that is legally objectionable. If this is not done, then there may be liability on the basis of authorisation or acquiescence.
55. A search engine, however, is a different kind of Internet intermediary. It is not possible to draw a complete analogy with a website host. One cannot merely press a button to ensure that the offending words will never reappear on a Google search snippet: there is no control over the search terms typed in by future users. If the words are thrown up in response to a future search, it would by no means follow that the Third Defendant has authorised or acquiesced in that process.
56. There are some steps that the Third Defendant can take and they have been explored in evidence in the context of what has been described as its "take down" policy. There is a degree of international recognition that the operators of search engines should put in place such a system (which could obviously either be on a voluntary basis or put upon a statutory footing) to take account of legitimate complaints about legally objectionable material. It is by no means easy to arrive at an overall conclusion that is satisfactory from all points of view. In particular, the material may be objectionable under the domestic law of one jurisdiction while being regarded as legitimate in others.
57. In this case, the evidence shows that Google has taken steps to ensure that certain identified URLs are blocked, in the sense that when web-crawling takes place, the content of such URLs will not be displayed in response to Google searches carried out on Google.co.uk. This has now happened in relation to the "scam" material on many occasions. But I am told that the Third Defendant needs to have specific URLs identified and is not in a position to put in place a more effective block on the specific words complained of without, at the same time, blocking a huge amount of other material which might contain some of the individual words comprising the offending snippet.
50. It may well be that the Third Defendant's "notice and take down" procedure has not operated as rapidly as Mr Browne and his client would wish, but it does not follow as a matter of law that between notification and "take down" the Third Defendant becomes or remains liable as a publisher of the offending material. While efforts are being made to achieve a "take down" in relation a particular URL, it is hardly possible to fix the Third Defendant with liability on the basis of authorisation, approval or acquiescence...
64. Against this background, including the steps so far taken by the Third Defendant to block the identified URLs, I believe it is unrealistic to attribute responsibility for publication to the Third Defendant, whether on the basis of authorship or acquiescence. There is no doubt room for debate as to what further blocking steps it would be open for it to take, or how effective they might be, but that does not seem to me to affect my overall conclusion on liability. This decision is quite independent of any defence provided by s.1(1) of the 1996 Act, since if a person is not properly to be categorised as the publisher at common law, there is no need of a defence: see e.g. Bunt v Tilley at [37].
    

The ultimate outcome

124. In conclusion, therefore, there are two reasons which in my judgment justify setting aside the Master's order. First, I do not consider that on the evidence before me the Third Defendant can be regarded as a publisher of the words complained of, whether before or after notification. Accordingly, on the evidence before me, I can conclude that the Claimant would have "no reasonable prospect of success". Secondly, I regard the misrepresentations and omissions, as to the nature of the cause of action relied upon, as sufficiently serious to justify setting aside the Master's order in any event."

Really interesting case. For those allergic to legalise, the Guardian has a report on the outcome.

Amazon Erases Orwell Books From Kindle

From the NYT: Amazon Erases Orwell Books From Kindle. Very Orwellian and timely since I had just found Mark Pilgrim's The Future of Reading (A Play in Six Acts) last week.

Apple disables iTunes sync feature on Palm Pre

Typical Apple: Apple disables iTunes sync feature on Palm Pre We can't have people playing iTunes songs on on the move on anything other than an Apple device now can we?

Shades of Apple v Real, Apple v Ambrosia, Apple v competition...

Update: Palm have updated their software so iTunes now talks to the Palm Pre phone again, just as Real did... how long will it take Apple to react to make it incompatible again? The Washington Post also has the story.

Google Books Settlement and Privacy

EPIC's page on the Google books settlement and privacy is excellent.

Update: James Grimmelmann has just launched a new site, the public index, for discussion of the Google Book Search case, including a fairly comprehensive archive of litigation documents and analytical articles. It's along the same lines as writetoreply triggered by the draft Digital Britain report with a collection of extra resources. Again recommended.

Update 2: Pamela Samuelson's succinct take on the problems with the settlement.

Over reacting to potential terrorist threats

There was an interesting article in the Daily Kos last month on the cost of over-reacting to potential terrorist threats.

"He was trying to light his shoe. The flight attendant, aided by passengers, acted quickly. Richard Reid never got another chance to light his shoe bomb.

Thanks to the immediate action of the the those on board, there was no damage to the plane. No injuries or loss of life.

Since that day in 2001, every passenger entering a commercial airliner has been required to remove their shoes for inspection and X-ray. A precaution that is... massively, even breathtakingly idiotic...

Assume that each airline traveller spends an additional minute in line because of removing, scanning, and replacing their shoes. Just one minute. In the United States, there are about 830 million domestic airline passengers a year. That's about 1,600 man years of time spent each year on removing shoes that are no more threat than any other piece of clothing. If you put a $10/hr value on the time of the average air traveller, that's about $33 million / year worth of shoe time. Better than $300 million worth since Reid got tackled in business class.

Which has to make Reid and those like him very, very happy...

The bigger reason we did something is because the response of politicians is always to do something. Even if that something makes no sense -- even if that something is actually counterproductive... When politicians see something on the news, and when pundits are screaming for action, the inclination is to provide that action. If that means a million gallons of Head n' Shoulders in airport trash cans or a life sentence for stealing a pizza, so what? What counts is that action was taken.

Dave Kilchen in his new book The Accidental Guerrilla describes terrorism in the terms of an auto-immune disorder. Like lupus, where the systems of the body designed to protect against infection turn on healthy tissue, our response to problems can often result in far more damage than the problem itself. It's not the terrorists that do the real damage -- it's how you respond to the terrorists... The self-inflicted wounds have been deeper, more serious, and more lingering than anything that was done from the outside."

I also learned from the article that the United States v. Reynolds was the first time the US government successfully used the "national security" argument before the courts to prevent the release of privileged information.

"A military aircraft on a flight to test secret electronic equipment crashed and certain civilian observers aboard were killed. Their widows sued the United States under the Tort Claims Act and moved under Rule 34 of the Federal Rules of Civil Procedure for production of the Air Force's accident investigation report and statements made by surviving crew members during the investigation. The Secretary of the Air Force filed a formal claim of privilege, stating that the matters were privileged against disclosure under Air Force regulations issued under R. S. 161 and that the aircraft and its personnel were "engaged in a highly secret mission." The Judge Advocate General filed an affidavit stating that the material could not be furnished "without seriously hampering national security"; but he offered to produce the surviving crew members for examination by plaintiffs and to permit them to testify as to all matters except those of a "classified nature." Held: In this case, there was a valid claim of privilege under Rule 34; and a judgment based under Rule 37 on refusal to produce the documents subjected the United States to liability to which Congress did not consent by the Tort Claims Act. Pp. 2-12."

Home school aggreements to be compulsory, including spying clause?

In an article in this morning's Independent on 'The Mad Democracy of Snooping', Terence Blacker is less than impressed at Education Secretary Ed Balls' plan to make home school agreements mandatory. The agreements will also apparently include a clause requiring parents to spy on and report families they suspect are not fulfilling their legal obligations under these contracts.

"The best way to control people, as any competent dictator will know, is to get them to police themselves. No citizen is more comprehensively cowed and disempowered than one who believes himself to be at the mercy of other ordinary people. Britain, not a totalitarian state, is nonetheless on a steep learning curve when it comes to the first rule of suppressing individual liberty: everyone should be watched and everyone should be a watcher...

These contracts between parents and the school of their child will commit them to supporting his or her education, ensuring that they attend school, do their homework, go to bed at a reasonable time and so on. Then, almost as an afterthought, the new agreement will also invite parents to spy and inform on families which they believe are not adhering to the agreement. Complaints made by families against families will be heard by Local Education Authorities. It is a neat way of exploiting the suspicion and paranoia which have become part of the British character. Citizens will become the unpaid spies of authority.

Ed Balls, the secretary of state behind the initiative, has made the usual appeal to decency and commonsense. The agreement will support "parents who do the right thing" and bring to justice a small minority of "recalcitrant" families. He might have added that, if you have nothing to hide, then you will have nothing to fear."

Nothing to hide nothing to fear... cough... expenses scandal... cough... and they still don't get it. And until MPs en masse and ministers in particular start repeatedly personally feeling the effects of the mass surveillance society they've been building I doubt there will be a reversal in proceedings any time soon. Externalities Mr. Balls, externalities.

Digital Britain 3 strikes plans to bypass amendment 138?

The 1709 Copyright Blog and Monica Horten have spotted a flaw in the Department for Business Skills and Enterprise consultation on tackling illicit filesharing, triggered by the final Digital Britain report.

"UK government plans to restrict the Internet have become clear. And how it is using the Telecoms Package to launder policy through Brussels. Without Amendment 138, the Telecoms Package would offer no obstacle to Internet filtering, blocking peer-to-peer file-sharing, or restrictions on any other web-based service or application.

The UK government's peer-to-peer consultation has slipped on a virtual banana skin and in the process let its Internet restrictions plans jump right out of the bag.

The consultation has printed a version of Amendment 138 in the EU Telecoms Package using a wording hitherto unknown: it includes the words ‘or for other legitimate reasons' which would give governments the get-out clause they need to apply 3-strikes and

other sanctions to Internet users. This wording is not in the text that was adopted by the European Parliament on 6^th May. Neither is it familiar to me, and I have seen several of the unofficial proposals for re-writes.

Amendment 138 says that the fundamental right to freedom of expression on the Internet may not be restricted without a prior judicial ruling. It seeks to stop anti-filesharing measures such as 3-strikes /graduated response, and arguably also prevents network filtering being used to block websites and user connections without a judicial ruling. But the changed wording in the Consultation on legislation to address illicit peer-to-peer filesharing, run by the Department for Business, Innovation and Skills, implies that the judicial ruling would not be needed provided the reason for imposing the measure was 'legitimate', and so it gives the UK government, and governments all around the EU, the go-ahead to implement the kind of measures to restrict the Internet that are foreseen in the Telecoms Package Universal Services and Users rights directive (Harbour report).

The matter has been documented by the 1709 Copyright Blog ( which, incidentally, is written by lawyers). The 1709 Copyright Blog says that the consultation document could imply that the UK anti-filesharing plans are not out of synch with EU. The final text of Amendment 138 was known well before the June 16th publication date of the consultation, and that since it is such a political hot-potatoe, BIS should have proof-read the document and got it right. And it comments that Amendment 138 is a thorn in the UK government's side, because it would prevent them from requiring ISPs to cut off -filesharers or use ‘technical measures' to prevent them accessing file-sharing sites.

In other words, Amendment 138 will indeed ‘constrain policy options' as the UK's representative on COREPER, Andy Lebrecht, wrote in his briefing statement for the Minister , Lord Stephen Carter, presented in the House of Lords. "

(COERPER is the Permanent Representatives Committee responsible for preparing the work of the Council of the European Union).

If this really is the plan of some of the folk in BIS, it's potentially worse than even the French 3 strikes legisation which was ruled unconstitutional (at least the French had built in a semblance of judicial oversight).

The question that springs to mind is whether there really are machiavelian moves by music label friendly elements within the BIS to bypass amendment 138 of the European Parliament's telecoms package or whether this is down to bureaucratic errors on the part of the department. The BERR (as the BIS was then) officials that attended the OII's Musicians, fans and online copyright event in March 2008 gave every indication of understanding the complexities involved in attempting to regulate illicit file sharing but of course understanding at the level of the individual doesn't always translate into understanding at the level of the organisation. And it wouldn't be the first time the government interpreted EU legislation to suit themselves.

Spinvox voice to text conversion technology seems to be people

Rory Cellan-Jones at the BBC is reporting that Spinvox's voice to text conversion technology is mostly

"call centre staff in South Africa and the Philippines...

A source at the company has told the BBC that the vast majority of messages are in fact converted into text by staff at call centres.

The fact that messages appear to have been read by workers outside of the European Union raises questions about the firm's data protection policy.

The firm's entry on the UK Data Protection Register says it does not transfer anything outside the European Economic Area."

Henry Louis Gates Jr arrested for breaking into his own home

This is almost unbelievable (but sadly not totally). World renowned Harvard scholar Henry Louis Gates Jr has apparently been arrested for breaking into his own home and subsequently speaking impolitely to police officers who came to question him. Gates' colleague at Harvard, Charles Ogletree, is acting as his lawyer and says:

"This brief statement is being submitted on behalf of my client, friend, and colleague, Professor Henry Louis Gates, Jr. This is a statement concerning the arrest of Professor Gates. On July 16, 2009, Professor Henry Louis Gates, Jr., 58, the Alphonse Fletcher University Professor of Harvard University, was headed from Logan airport to his home [in] Cambridge after spending a week in China, where he was filming his new PBS documentary entitled “Faces of America.” Professor Gates was driven to his home by a driver for a local car company. Professor Gates attempted to enter his front door, but the door was damaged. Professor Gates then entered his rear door with his key, turned off his alarm, and again attempted to open the front door. With the help of his driver they were able to force the front door open, and then the driver carried Professor Gates’ luggage into his home.

Professor Gates immediately called the Harvard Real Estate office to report the damage to his door and requested that it be repaired immediately. As he was talking to the Harvard Real Estate office on his portable phone in his house, he observed a uniformed officer on his front porch. When Professor Gates opened the door, the officer immediately asked him to step outside. Professor Gates remained inside his home and asked the officer why he was there. The officer indicated that he was responding to a 911 call about a breaking and entering in progress at this address. Professor Gates informed the officer that he lived there and was a faculty member at Harvard University. The officer then asked Professor Gates whether he could prove that he lived there and taught at Harvard. Professor Gates said that he could, and turned to walk into his kitchen, where he had left his wallet. The officer followed him. Professor Gates handed both his Harvard University identification and his valid Massachusetts driver’s license to the officer. Both include Professor Gates’ photograph, and the license includes his address.

Professor Gates then asked the police officer if he would give him his name and his badge number. He made this request several times. The officer did not produce any identification nor did he respond to Professor Gates’ request for this information. After an additional request by Professor Gates for the officer’s name and badge number, the officer then turned and left the kitchen of Professor Gates’ home without ever acknowledging who he was or if there were charges against Professor Gates. As Professor Gates followed the officer to his own front door, he was astonished to see several police officers gathered on his front porch. Professor Gates asked the officer’s colleagues for his name and badge number. As Professor Gates stepped onto his front porch, the officer who had been inside and who had examined his identification, said to him, “Thank you for accommodating my earlier request,” and then placed Professor Gates under arrest. He was handcuffed on his own front porch.

Professor Gates was taken to the Cambridge Police Station where he remained for approximately 4 hours before being released that evening. Professor Gates’ counsel has been cooperating with the Middlesex District Attorneys Office, and the City of Cambridge, and is hopeful that this matter will be resolved promptly. Professor Gates will not be making any other statements concerning this matter at this time."

If climate change is a greater threat than terrorism...

Quote of the day from David McKay:

"If climate change is "a greater threat than terrorism,"should governments criminalize "the glorification of travel" and pass laws against "advocating acts of consumption"?

McKay's book, Sustainable Energy -without the hot air, is absolutely terrific, and something of a template for the other book I've been vaguely contemplating on the sustainability of ideas in the context of the modern structure of the intellectual property landscape. Empirical numbers are very difficult to come by when it comes to IP, however, so that's a project for the slightly longer term.

The Future of Reading (A Play in Six Acts)

From Mark Pilgrim: The Future of Reading (A Play in Six Acts)

"

Act I: The act of buying

When someone buys a book, they are also buying the right to resell that book, to loan it out, or to even give it away if they want. Everyone understands this.

Jeff Bezos, Open letter to Author’s Guild, 2002

You may not sell, rent, lease, distribute, broadcast, sublicense or otherwise assign any rights to the Digital Content or any portion of it to any third party, and you may not remove any proprietary notices or labels on the Digital Content. In addition, you may not, and you will not encourage, assist or authorize any other person to, bypass, modify, defeat or circumvent security features that protect the Digital Content.

Amazon, Kindle Terms of Service, 2007..."

Clever.

Open Source Apps For Writers

Thanks to Glyn Moody for the pointer to these Five Open Source Apps For Writers and Authors. I've been mulling over some of the ideas for a new book on the insanity of large organisations whilst taking a few days leave from the day job. So it might be worth experimenting with some of these tools to see if they can help.

The basic thesis of the book btw is that as organisations, public and private, evolve, they converge on bureaucracies and administrative systems which are effectively simultaneously insane and oblivious to as well as extremely resistant to efforts to cure that insanity. The working title at the moment is 'Insanity and stupidity: the twin curses of managerialism' (I know - it doesn't exactly roll off the tongue but I'm not good at soundbites). At the moment the plan is to include stories from personal less-than-satisfactory experiences as a customer of large organisations like Talk Talk, through tales from NASA, the Tahoma Narrows Bridge, aircraft crashes, the 1927 Mississippi flood, and the intellectual property, education and criminal justice systems.

Boyle: were we smarter a 100 years ago

Jame Boyle has been re-reading the legislative history of the 1909 Copyright Act and come to the conclusion that

"100 years ago we were smarter about copyright, about disruptive technologies, about intellectual property, monopolies and network effects than we are today. At least, the legislative hearings were much smarter...

I find no injustice in the composers getting a share of the revenues produced by sound recordings and piano rolls — I would have voted for it myself. And the solution to the problem of the latent monopoly — namely a compulsory license — accomplished that goal without stultifying the technology or restricting distribution to the public. All in all — the fulminations of Sousa and Mauro aside — it was a pretty nice piece of legislation. The legislators actually seemed to understand the arguments made to them. The conceptual confusions of absolute property rights were repeatedly debunked. There were explicit balances made in the statute — weighing technological progress and the encouragement of the arts and culture. Constitutional arguments were weighed and taken into account. They even saw and mitigated the threat of monopoly with a compulsory license. Nowadays when a compulsory license over, say AIDS drugs, is pursued by a country like Thailand, the US Trade Representative beats them up for adopting such “radical” and confiscatory approach. Nothing could be more foreign to the American tradition of intellectual property than compulsory licenses! Hogwash. Our music industry is built on them.

The world of 1906 was hardly perfect — I wouldn’t want to live then. And the 1909 statute was full of its own boondoggles and industry grabs. But if one looks back at these transcripts and compares them to today’s hearings — with vacuous rantings from celebrities and the bloviation of bad economics and worse legal theory from one industry representative after another — it is hard not to feel a sense of nostalgia. In 1900, it appears, we were better at understanding that copyright was a law that regulated technology, a law with constitutional restraints, that property rights were not absolute and that the public would not automatically be served by extending rights out to infinity."

Horowitz: government's twisted view of society

I've admired Anthony Horowitz's range of entertaining writings for some time and when I brought my kids, who consider him 'brilliant', to see him speak at the Oxford Literary Festival a few years ago, was interested to hear him express some mild disquiet over our growing surveillance society. He wasn't openly critical of government but expressed his concerns in a way that was very accessible to the children in the audience, encouraging them to be thoughtful about the deployment and their use of new technologies at the same time as enjoying them.

The UK government's latest 'cure it with a database' plan, however, has Horowitz and other widely admired children's authors criticising those with a "twisted view of society" that could conceive of such a thing.

"A group of respected British children's authors and illustrators will stop visiting schools from the start of the next academic year, in protest at a new government scheme that requires them to register on a database in case they pose a danger to children.

Philip Pullman, Anne Fine, Anthony Horowitz, Michael Morpurgo and Quentin Blake all told The Independent that they object to having their names on the database – which is intended to protect children from paedophiles – and would not be visiting any schools as a consequence...

The Vetting and Barring Scheme (VBS) is being managed by the Independent Safeguarding Authority, set up after the 2002 murders of Jessica Chapman and Holly Wells by Ian Huntley, a janitor at their school. All individuals who work with children from 12 October will be required to register with a national database for a fee of £64."

Horowitz, writing in the Independent says:

"It is hard to know what is most objectionable about the database proposed by a government that seems more and more like a dying wasp, determined to sting one last time before it goes.

In essence, I'm being asked to pay £64 to prove that I am not a paedophile. After 30 years writing books, visiting schools, hospitals, prisons, spreading an enthusiasm for culture and literacy, I find this incredibly insulting.

It is also so ludicrous as to be very nearly insane...

This is a law made by people with a bleak and twisted view of society. And such people, quite simply, should not be making laws."

Very well said Mr Horowitz.

The editorial in the paper is less polite:

"A toxic combination of bureaucratic stupidity and popular hysteria over paedophilia has brought us to this absurdity."

Forensic science and human rights: the challenges

Thanks to Caspar Bowden for directing me to the Hon Jack Beatson's recent speech on forensic science and human rights.

"30 years ago Sir Robert Megarry VC in Malone v Metropolitan Police Commissioner1
said that if something “can be carried out without committing any breach of the law it
requires no authority by statute or common law; it can lawfully be done simply
because there is nothing to make it unlawful”. In that case he was talking about
telephone tapping. Had the issue arisen more recently he might have been talking
about CCTV or retention of biodata.
Sir Robert said what he did because, following the nineteenth century constitutional
lawyer AV Dicey, he considered this to be “a country where everything is permitted
except what is expressly forbidden”. Their approaches ignore the special position of government officials. They do not recognise that the power of government officials to
act depends on statutory authority and that the institutional position and de facto
power of government officials may justify their being subjected to greater restrictions
than ordinary citizens. Modern examples of such de facto power include the ability
of the state to erect a network of CCTV cameras in a city centre or on a motorway, to
track the movements of an individual using signals from his mobile telephone, and
other manifestations of what the Information Commissioner and the House of Lords’
Constitution Committee have called a “surveillance society”.2
Things have changed in the 30 years since the decision in Malone’s case. Common
law rights such as the right of access to an unbiased and independent court or
tribunal, the right to property, and the right not to be detained capriciously have been
recognised as fundamental.3 Our rights under the European Convention on Human
Rights (the “ECHR”) have been brought into our domestic law by the Human Rights
Act 1998. The result is that those embarking on a legal career today would find Sir
Robert’s approach to the position of a public authority extraordinary. But the mindset
underlying his approach has not vanished altogether. It bears a similarity to some of
the approaches to the possibilities open to the state today as a result of technological
and scientific developments.
My topic this evening concerns the intersection of forensic science and human rights.
It is a big topic and I shall only deal with a small part of it. Forensic science may
impact on a number of the rights under the ECHR, but the human right I am
concerned with today is the right to respect for private life in Article 8. Privacy, and
thus the right to respect for private life, can be more vulnerable in the modern world
as a result of technical and scientific developments. Developments such as a system of CCTV cameras and a DNA National database have the capacity to narrow the area
of an individual’s autonomy and privacy. This area may also be narrowed as a result
of an increase in the role of the state. In his book, Genetic Privacy, Graeme Laurie
said that one of the greatest threats to individual privacy in the last century has been
the development of a public interest in the welfare of individuals. The state has taken
responsibility for basic services, such as housing, subsistence, education, and health
care. Notwithstanding the attempts since 1979 to “shrink the size of the state”, the
state’s legal responsibilities and the very significant financial burdens upon it have
led to the development of a position in which the state considers it has an obligation
to guide individuals to prudent behaviour that is considered to be of benefit to the community, for example in relating to smoking, consumption of alcohol and the
wearing of seatbelts in cars. It is this position that Laurie sees as threatening
individual privacy and autonomy.
Within forensic science, the development that has led to most discussion in recent
years has centred around DNA. This is understandable. The UK has been the
scientific pioneer in this area. The position in England, Wales, and Northern Ireland
(but not, as we shall see, in Scotland) has, broadly speaking, been that all
bioinformation taken from those arrested is retained indefinitely whether or not the
person providing the sample was subsequently convicted or even charged. At present
volunteers who have given bioinformation, for example in mass screens, have no
right to have it removed from the database. Chief Constables, however, have
discretion to destroy the samples and profiles of both those arrested and volunteers
in “exceptional circumstances”.
Our National DNA Database is the largest database in Europe. In March 2007
approximately 4 million people were on it.4 The figure included over a million
children. 5By March 2009 the figure had risen to some 5.1 million people,6 over 7% of
our population. The comparable figures for France and Germany are respectively
approximately 856,000 people, 1.44% of the French population, and some 611,000
people, 0.74% of the German population.7
There are notable examples of the use of DNA both in detecting crime and in
exonerating individuals. So, for example, a number of “cold” cases of murder and
rape have been cleared up, sometimes years later, when an individual is arrested on
another matter and a sample taken from him which implicates him in the unsolved
crime.8 Again, as shown by the cases of Stefan Kisko and Sean Hodgson, DNA can
exonorate.9 The European Court of Human Rights (the “ECtHR”) has recognised the
“rapid and marked progress [of member states] in using DNA information in the
determination of guilt or innocence”.10
The potential uses of DNA material of course go far beyond the prevention and
detection of criminal activity with which many members of the British Academy of
Forensic Science (hereafter “BAFS”) are concerned. Issues of genetic privacy arise in
the context of health care, insurance, and personal identity.11 There is a natural and
understandable desire to make full use of technological and scientific developments
in combating disease and crime, and improving our quality of life. But, equally
understandably, there are also sensitivities about the retention and use of such
material by public authorities and companies whether or not the material is retained
in order to assist in the prevention and detection of crime.
It is clearly justifiable to retain and use DNA material for the overall good of society,
whether by enhanced screening for disease or by creating a method of deterring and
detecting crime. But should the increased power of technology and science be
balanced by a greater sensitivity to the need to protect legitimate areas of “privacy”
and “autonomy”? No one argues against a balanced approach. It is recognised to be
necessary in order to maintain public confidence in systems, to ensure fairness and
appropriate autonomy to individuals, and to provide a method of identifying and
correcting error. But there is controversy as to what constitutes a balanced approach."

He goes on to look at the S. and Marper case (where the UK lost in the ECHR on the issue of retention of DNA and fingerprints) in one of the most comprehensive clear minded analyses of the issues I've seen anywhere. Highly recommended. Caspar tells me that the honourable judge also wrote the first human rights QC’s Opinion for FIPR pro bono in 1999 http://www.fipr.org/ecomm99/ecommaud.html).

Update: The Tech and Law blog has picked up Judge Beatson's speech too.

Berners-Lee OU-BBC 'Digital Revolution' speech

Along with several colleagues from the OU I had the privilege last Friday of attending the launch for a series of BBC/OU programmes on the history and future of the web. It was an interesting session.

Tim Berners-Lee's talk and responses to questions at the event are available on YouTube.

What does Tory plan to scrap ID cards really mean

John Lettice suggests in the Register that the Conservative Party are not being entirely straightforward when stating they are planning to scrap the government's ID card plans if they get elected next year.

"A future Tory government will cancel the ID Card Scheme - but, as The Register has asked several times, what does that mean? A broad commitment to abandon ID cards, even to cancel the National Identity Register database, leaves a certain amount of wiggle-room, particularly if - as is Tory policy - you're likely to be keeping plans for adding fingerprints to passports in place."

Filmmakers speak out against management of web traffic

From the Canada.com movie guide:

"Canada’s largest Internet providers are having a chilling effect on independent filmmakers by slowing down certain Internet technologies that enable producers to distribute movies and other programming online, federal regulators heard Wednesday.

Increasingly, independent filmmakers and television producers are turning to online peer-to-peer technologies as a primary means of distributing their creations in the face of rising competition for broadcast time from Hollywood studios."

Thanks to Michael Geist for the link.

Pirate party in the FT

Sweden's Pirate Party MEP, Christian Engström, has an article in the FT this week, unsurprisingly entitled Copyright laws threaten our online freedom.

RIAA object to Nesson recordings

I don't think I quite appreciated the depth of the RIAA's animosity towards Charles Nesson, the founder of the Berkman Center at Harvard, until very recently. It's well known that Nesson is defending Joel Tenenbaum in the case for p2p copyright infringement brought against him by the RIAA. He is also using it as a case for his students to observe the US legal system in real time, something the opposition attorneys are not too keen on. The latest development in the case is that the RIAA are reportedly asking the judge in the case to order Nesson to remove “unauthorized and illegal recordings” of pretrial hearings and depositions from the net.

I was prompted by the story to listen, for the first time, to Nesson's recording of Tenenbaum's deposition in September 2008 (available at the Berkman Center).

Right from the start it is clear the RIAA lawyer doing the main questioning is trying to deconstruct Nesson's involvement in the case, presumably to gather evidence for the courtroom battles to come. The emotion in the voices of both the RIAA supervising attorney and in-house counsel - and this is purely subjective perspective on my part - displays more than simple irritation with Tanenbaum and Nesson. The in-house counsel got particularly annoyed at one point when declaring that Nesson didn't seem to appreciate that many people were getting laid-off every year because of lost sales due to file-sharing and that was who he was fighting for. In fairness to him he seemed genuinely upset at the job losses and committed to his desparate attempts to stem the flow by pursuing file sharers through the courts.

But in spite of drm, draconian copyright laws, monster lawsuits, lack of interoperability, Apple's oliopoly on online music sales, electronic files are unlikely to get harder to copy and distribute because computers are continually getter faster, storage is getting cheaper and more compact and internet pipes are getting fatter. So the RIAA has to find a new strategy, beyond litigation, to work with the technology to monetize their wares - more competition in cheap, reliable, convenient, clean, comprehensive catalogue of online music sales. Convenient, clean and reasonably priced will beat free every time.

Pope criticises rich countries excessive zeal on intellectual property

The Pope has decided to get involved in the debate about the value of intellectual property. In section 22 of Encyclical Letter Caritas in Veritate of the Supreme Pontiff Benedict XVI, he says:

"The world's wealth is growing in absolute terms, but inequalities are on the increase. In rich countries, new sectors of society are succumbing to poverty and new forms of poverty are emerging. In poorer areas some groups enjoy a sort of “superdevelopment” of a wasteful and consumerist kind which forms an unacceptable contrast with the ongoing situations of dehumanizing deprivation. “The scandal of glaring inequalities”[56] continues. Corruption and illegality are unfortunately evident in the conduct of the economic and political class in rich countries, both old and new, as well as in poor ones. Among those who sometimes fail to respect the human rights of workers are large multinational companies as well as local producers. International aid has often been diverted from its proper ends, through irresponsible actions both within the chain of donors and within that of the beneficiaries. Similarly, in the context of immaterial or cultural causes of development and underdevelopment, we find these same patterns of responsibility reproduced. On the part of rich countries there is excessive zeal for protecting knowledge through an unduly rigid assertion of the right to intellectual property, especially in the field of health care. At the same time, in some poor countries, cultural models and social norms of behaviour persist which hinder the process of development."

JK Rowling heading for court again

From Fernando Barrio (something I missed at the time):

"The Australian Daily Telegraph brings the news that the estate of Adrian Jacobs is suing JK Rowling’s publisher, Bloomsbury, for copyright infringement and claiming £500 million. The suit has its origin on the allegation that Harry Potter and the Goblet of Fire contains the same concepts presented in Jacobs’ Willy the Wizard, a 36 page book of which 1,000 copies were made."

Fernando does a terrific analysis of the case. Highly recommended.

The web, copyright and enlightening discussion

This is an example of one of the things I like about the web. Barrister and computer forsensics expert, Alistair Kelman, wrote a short review of Music and Copyright by Ronald S. Rosen a little while ago.

Rosen, who defended John Williams when he got sued for copyright infringement over elements of his music for E.T., noticed the review and contacted Kelman about it. There followed an enlightening exchange about copyright law which is now available for anyone with a computer and a web connection to see.

Kelman had suggested that if some of the discussions about the specifics of the music in the book could have been recorded then it would make the arguments accessible to those not familiar with musical notation. Rosen agreed but noted that although he would have liked to record samples for the book and post an accompanying audio/video files on the web, the budget didn't stretch to getting the required licences for permission to do such recordings.

So to enlighten people about the intricacies of the arguments in the ET music case it would have been valuable to have illustrative audio and video samples. Yet to provide such samples (freely or commercially) would have laid the author open to a copyright infringement lawsuit (although he would probably be allowed to use such samples to illustrate his points in a courtroom) . Rosen, and remember he is a very experienced music copyright lawyer who knows the system better than most, hasn't given up hope of acquiring audio licences for a second edition of the book but this is complicated even if the music under consideration is in the public domain:

"If we are fortunate enough to publish a second edition, we might be a position to secure licenses for small portions of the sound recordings at reasonable rates. If, however, the current edition is highly successful, we may be able to get licenses for the second edition in exchange for crediting the record companies for the use of these extracts, if the composition is in the public domain. If, however, the music itself is also protected by copyright, we would need licenses from both the copyright owner of the sound recording and the owner of the copyright in and to the music. Looking over this paragraph, you will notice a lot of "ifs", which sums up the situation."

Interestingly enough the description of the book itself says:

"The highly topical area of copyright law, as applied to music, is widely misunderstood by lawyers, business people, and - perhaps most seriously - the federal judiciary. More than ever, there is a need to understand music infringement issues within the context of copyright litigation. In Music and Copyright , Ron Rosen provides readers with a practical and strategic roadmap to the music-infringement litigation process, beginning with the client's claim or defense and continuing through the selection and use of trial experts, discovery, motion practice, and trial."

If Rosen is right that music copyrights are so seriously and widely misunderstood (and I think he is) it is more than a little ironic that copyright law itself might be interfering with the ability to put a substantial dent in that unsatisfactory state of affairs.

Quote of the day

From Charles Nesson:

"If you see the United States in a competition with other nations in a digital world, and you think the best asset you have for the future are your own children, who will become the digerati, who think imaginatively in that environment, you will be against the idea that you use the law, the power of the state, to make those learners fearful of clicking on the Net."

Centocor v. Abbott: Biggest Patent Verdict Ever

The week before last a Texas jury apparently awarded the largest damages for patent infringement in history.

"Abbott Laboratories must pay $1.67 billion to Centocor, a subsidiary of Johnson & Johnson, because its Humira arthritis treatment infringes U.S. Patent No. 7,070,775. The patent was developed at New York University and licensed exclusively to Centocor, which makes a medicine called Remicade that competes with Humira."

Jammie Thomas appeals again

Unsurprisingly Jammie Thomas, who saw jury damages for copyright infringement via KaZaa increased from $9250 per song to $80,000 per song on appeal, has decided to further appeal the latest award against her.

"Jammie Thomas-Rasset, the Minnesota woman found liable for willful copyright infringement of 24 songs last month, has asked a federal court for a new trial or a reduction in the amount of the $1.92 million damages she was ordered to pay.

Thomas-Rasset, who a jury found liable for willful copyright infringement, asked the court Monday to either alter or amend the judgment, remove or change the award of statutory damages to the minimum, or give her a new trial."

Update: I should of course have noted as Fernando does that "the claimants specialists could only link 11 songs to the defendant’s computer, so the actual tag is not U$S80,000 per song as the jury decided but U$S174,545.45 per song (for the other 13 songs even the claimant’s specialists recognized that they couldn’t probe that they had been actually shared)."

Comedian Bishop sees the power of YouTube?

A close friend has pointed me at American Irish comedian Des Bishop's new website. I find Bishop to be very funny but I guess you have to be Irish to get some of his material, especially the stuff on the catholic church in Ireland.

What's of interest to the b2fxxx sphere, however, is not that Bishop does Irish humour exceptionally well but that he actively points people from his website to freely available videos of his gigs on YouTube. He's been known to joke about the less well off members of the Irish diaspora in the US passing copies of his DVDs amongst themselves and not paying for them. Yet here he is on the web linking to free versions of the same materials.

Perhaps he subscribes to lesson 1 of Tim O'Reilly's notion of piracy as progressive taxation: obscurity is a far greater threat to authors and creative artists than piracy?

DOJ confirm official Google book settlement investigation

From John Paczkowski,

"The Justice Department probe of the Google Books settlement is heating up. On Thursday afternoon, the agency officially opened an investigation into the deal, which would allow the search sovereign to make millions of books available online.

“The United States has reviewed public comments expressing concern that aspects of the settlement agreement may violate the Sherman Act,” wrote William F. Cavanaugh, a deputy assistant attorney general. “At this preliminary stage, the United States has reached no conclusions as to the merit of those concerns or more broadly what impact this settlement may have on competition. However, we have determined that the issues raised by the proposed settlement warrant further inquiry.”"

Quote of the day: we like to learn...

One of my favorite pieces of advice about education is encapsulated in John Holt's simple philosophy:

"Basically... the human animal is a learning animal; we like to learn; we are good at it; we don't need to be shown how or made to do it. What kills the processes are the people interfering with it or trying to regulate it or control it."

Holt was an educator who worked within the education system and hoped for many years it could be improved but eventually decided it was so dysfunctional it could not be fixed and became an advocate of home schooling. He also came to the conclusion that the main reason children don't learn in schools is fear - fear of failing, fear of being laughed at, fear of not being able to tackle the tasks set by teachers, fear of not being good enough, fear of being teased by teachers and fellow pupils.

Lori Drew verdict set aside in MySpace suicide case

The judge has reportedly set aside the earlier jury verdict holding a Missouri woman, Lori Drew, responsible for driving a teenage girl to commit suicide, through exchanges in MySpace.

"A federal judge on Thursday overturned guilty verdicts against Lori Drew, issuing a directed acquittal on three misdemeanor charges.

Drew, 50, was accused of participating in a cyberbullying scheme against 13-year-old Megan Meier who later committed suicide. The case against Drew hinged on the government’s novel argument that violating MySpace’s terms of service was the legal equivalent of computer hacking. But U.S. District Judge George Wu found the premise troubling.

“It basically leaves it up to a website owner to determine what is a crime,” said Wu on Thursday, echoing what critics of the case have been saying for months. “And therefore it criminalizes what would be a breach of contract.”"

The LA Times and others also have reports on the decision.

No re-trial for Pirate Bay

Unsurprisingly the court of appeal in Sweden ruled last week that the judge in the Pirate Bay case was not biased.

"A Swedish court ruled today that the judge overseeing The Pirate Bay trial earlier this year was not biased by belonging to various pro-copyright organizations. The unanimous decision (Swedish) means that there will be no retrial; the defendants must hope for a successful appeal instead.

Judge Tomas Norström is a member of the Swedish Copyright Association, as are several of the lawyers who represented the recording and movie industries during the trial. He also sits on the board of the Swedish Association for the Protection of Industrial Property, an advocacy group that pushes stricter copyright laws.

After receiving a verdict of a year in jail (each) and a shared 30 million kronor fine, The Pirate Bay defendants charged Norström with bias and asked a court of appeal for a completely new trial with a different judge.

That appeal was overseen by Judge Anders Eka, who doesn't normally hear copyright-related cases but did so here in order to make the ruling appear as fair as possible."

The four men who ran Pirate Bay are now planning sue Sweden for breaching their human rights.

Government mandarin director of firm that won passport contract

On the surface this stinks.

"A legal battle was looming last night over the £400million contract to produce new hi-tech passports.

A losing bidder is threatening action over the fact that one of Gordon Brown's senior mandarins is a director of the firm which won the contract.

Gill Rider, a leading member of the Cabinet Office, not only directs the hiring of senior civil servants but is also director of De La Rue printers, which last week secured the job of producing biometric passports.

Rival firm 3M, furious that its bid was rejected, is considering a legal challenge based on potential conflict of interest."

Thanks to Peter Sommer via FIPR for the pointer.

Is UK Government U-turn on ID cards real?

The new Home Secretary's apparent reversal of government policy on compulsory ID cards yesterday has been criticised as the government spin since they are still intending to include people's details on the ID register when they apply for a passport.

"British citizens who apply for or renew their passport will be automatically registered on the national identity card database under regulations to be approved by MPs in the next few weeks.

The decision to press ahead with the main elements of the national identity card scheme follows a review by the home secretary, Alan Johnson, of the £4.9bn project. Although Johnson said the cards would not be compulsory, critics say the passport measures amount to an attempt to introduce the system by the backdoor.

Johnson said he had halted plans to introduce compulsory identity cards for airline pilots and 30,000 other "critical workers" at Manchester and London City airports this autumn in the face of threats of legal action. Longer term plans to extend compulsory ID cards to other transport industries, such as the railways, as a condition of employment have also been scrapped.

But two batches of draft regulations to be approved by MPs tomorrow and next week are expected to include powers to make the passport a "designated document" under the national identity card scheme. This means that anyone applying for or renewing their passport from 2011 will have their details automatically added to the national identity databases.

The regulations also include powers to levy a fine of up to £1,000 on those who fail to tell the authorities of a change of address or amend other key personal details such as a change of name within three months."

ACTA update

Michael Geist has noted an update on ACTA from Canadian government officials.

"The Canadian government held an Anti-Counterfeiting Trade Agreement consultation meeting today focused on pharmaceutical and access to medicines issues. The meeting was smaller than the earlier consultation in April, but featured some important new information about the ACTA process including a fuller description of planned negotiating meetings, details on the upcoming Morocco meeting, and confirmation on an inquiry from Brazil about joining the negotiations.

1. Negotiation schedule

The ACTA partners met on June 11th to discuss ACTA related issues and committed at the meeting to continue with the negotiations. The next meeting is set for Morocco in July with later meetings currently planned for October (Korea) and December (Mexico). There are additional tentative plans for meetings in February and April 2010.

2. The Morocco meeting

Officials advised that the Morocco meeting will be a two-day meeting that focuses on ACTA chapters involving international co-operation, enforcement, and institutional issues. The meeting will also address some "housekeeping" issues including ongoing transparency concerns. The Internet-related provisions will not be a focus and the Internet-related issues has not progressed beyond the U.S. non-paper that surveyed other ACTA participants on the state of their digital copyright laws (in other words, there is still no draft text).

3. New partners

During the meeting, I asked whether ACTA was open to new countries to join the negotiations before they conclude. Canada hedged, noting that the issue would be discussed at the Morocco meeting and that it would depend upon the country and the context. The issue has apparently become more urgent since Canadian officials confirmed that Brazil has approached one ACTA participant about the prospect of joining, but have not received an answer. Moreover, other countries may have made similar inquiries. I wrote about the desirability of broader participation earlier this year.

4. The De Minimis Exception

The issue of creating a de minimis exception within ACTA was raised during the discussion. The exception would be designed to carve out small quantities and personal use issues from border enforcement. Officials noted that the primary goal is to address large scale counterfeiting and that the treaty should be non-intrusive and practical. Canada is one of at least three countries that have put forward de minimis language. Officials said that there was agreement in principle with including some form of de minimis provision in the treaty."

US Supreme Court decline to hear Cablevision DVR case

The NYT is reporting that the US Supreme Court has declined to hear the Cablevision DVR case.

"The Supreme Court on Monday delivered a blow to the television networks when it declined to hear a case about a digital video recorder technology, opening the gate for wider use of DVR systems.

The case began in 2006 when Cablevision Systems, the New York-area cable operator, announced plans for what is called a network DVR system. With it, a customer would use a remote control to digitally record a program like “60 Minutes” but instead of storing the show in the customer’s at-home DVR box, the technology would store the show on a faraway Cablevision server.

The technology would let Cablevision convert set-top boxes into boxes with DVR capabilities without requiring an installation or new equipment.

“It opens up the possibility of offering a DVR experience to all of our digital cable customers,” Tom Rutledge, Cablevision’s chief operating officer, said in a statement. Programmers including Turner Broadcasting System’s Cartoon Network, CNN and television networks sued Cablevision, saying the system violated copyright law. In March 2007, a lower court agreed, ruling that Cablevision “would be engaging in unauthorized reproductions and transmissions of plaintiffs’ copyrighted programs.” The United States Court of Appeals for the Second Circuit in New York reversed that decision in August 2008. The plaintiffs asked the Supreme Court to hear the case, but the Supreme Court’s refusal essentially reinforced the Second Circuit’s decision."

Scotus blog commentary is here.

Update: The Washington Post also has the story.

Deep link to iPlayer content

Tony has outlined the trick of deep linking into iPlayer content.

"One of the really handy things about Youtube is the ability to share bookmarks that “deep link” to a particular point within a video (e.g here’s Google having a dig at Microsoft; the URL? http://www.youtube.com/watch?v=S5aJAaGZIvk#t=29m10s, which should start the video playing 29 minutes 10 seconds in. That is, just add something like #t=29m10s to the end of the Youtube video page URL to start the video playing that far in).

A similar service is offered on podcast material published through the wonderful IT Conversations, that lets you deep link in to a particular part of an audio file, which is great for sharing audio quotes and, err, messing around with: IT Conversations samples trigger pad;-)

Anyway, anyway, yesterday I saw this:

which means you can now deep link in to iPlayer content :-)

As with the Youtube deep linking, if you know the URL pattern, you can can create your own deep links on the fly (just add, ?t=21m45s, for example, on to the end of the URL to start the programme playing 21 minutes 45 seconds in.)

Something else I thought was interesting – the shared link is actually a BBC short link. So for an example, this is the sort of link you are given to share:

http://bbc.co.uk/i/l9n18/?t=13m55s

which then resolves to something like this:

http://www.bbc.co.uk/iplayer/episode/b00l9n18/Psychoville_Episode_1/?t=13m55s"

Neat.

UK Safeguarding Identity Strategy launched

The UK's Identity and Passport Service has launched their Safeguarding Identity Strategy.

"Recognising the huge value and importance of individuals' identity information and tackling variations in how information is used across Government, 'Safeguarding Identity' is the focus of a new strategy launched today, 23 June 2009. The initiative has been led by IPS on behalf of Government and involved more than 12 departments and agencies. Building on a wide range of work already underway (including Directgov and the National Identity Service), it aims to deliver a common framework for the use and handling of individuals' identity information. The full version of the strategy is here. If you have any comments, contact: David White, Head of Safeguarding Identity Strategy, Identity and Passport Service. David.White2@ips.gsi.gov.uk T 020 3356 8064

Download documents

Safeguarding Identity Strategy June 2009 (PDF - 127Kb)"

Top 10 myths about sustainability

Michael D. Lemonick at Scientific American has listed his top 10 myths about sustainability.

"

When a word becomes so popular you begin hearing it everywhere, in all sorts of marginally related or even unrelated contexts, it means one of two things. Either the word has devolved into a meaningless cliché, or it has real conceptual heft. “Green” (or, even worse, “going green”) falls squarely into the first category. But “sustainable,” which at first conjures up a similarly vague sense of environmental virtue, actually belongs in the second. True, you hear it applied to everything from cars to agriculture to economics. But that’s because the concept of sustainability is at its heart so simple that it legitimately applies to all these areas and more.

Despite its simplicity, however, sustainability is a concept people have a hard time wrapping their minds around. To help, Scientific American Earth 3.0 has consulted with several experts on the topic to find out what kinds of misconceptions they most often encounter. The result is this take on the top 10 myths about sustainability. And after this introduction, it’s clear which myth has to come first....

Myth 1: Nobody knows what sustainability really means.
That’s not even close to being true. By all accounts, the modern sense of the word entered the lexicon in 1987 with the publication of Our Common Future, by the United Nations World Commission on Environment and Development (also known as the Brundtland commission after its chair, Norwegian diplomat Gro Harlem Brundtland). That report defined sustainable development as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs.” Or, in the words of countless kindergarten teachers, “Don’t take more than your share.”

Note that the definition says nothing about protecting the environment, even though the words “sustainable” and “sustainability” issue mostly from the mouths of environmentalists. That point leads to the second myth...."

First arrest for twittering?

From the Washington Post:

"Jean Anleu was so fed up with corruption in his country that he decided to vent on the Internet, sending a 96-character message on the social-networking site Twitter.

That message has now earned him a potential five-year prison sentence and the unfortunate distinction of becoming one of the first people in the world to be arrested for a tweet.

Writing under his Internet alias "jeanfer," Anleu urged depositors to pull their money from Guatemala's rural development bank, whose management has been challenged in a political scandal: "First concrete action should be take cash out of Banrural and bankrupt the bank of the corrupt."

These words illegally undermined public trust in Guatemala's banking system, according to prosecutor Genaro Pacheco."

Posner: extend copyright to protect newspapers

Though I don't alway agree with him I'm a big fan of the writings of prolific legal scholar and appeal court judge Richard Posner. Posner, along with long time collaborator Gary Becker, has maintained a really interesting blog for the past few years on which he posts regular, sometimes provocative and always thought-provoking essays on matters of contemporary interest.

Last week the esteemed judge expressed his view that the ongoing decline of the newpaper industry might only be arrested through the special extension of copyright law to ban linking to, paraphrasing or accessing extracts from online newspaper articles without the permission of the copyright holder.

"Warren Buffett, who is a wit as well as a multibillionaire, said with reference to the fact that Bernard Madoff's long-running Ponzi scheme came to light during the financial collapse of last fall that until the tide goes out, you don't know who's swimming naked. A year ago Becker and I blogged about the decline of the newspaper industry. A year later the decline has accelerated. The economic crisis has hurt the newspaper industry as it has so many industries. The question is whether it will recover (or at least rejoin its slower downward path of last year) when the economy as a whole recovers; or has the economic crisis merely revealed the terminal status of the industry.

I am pessimistic about a recovery by the newspapers. One reason is the current economic situation. A serious, protracted economic crisis can result in changes in consumer behavior that persist after the end of the crisis. A change in consumption, even in some sense involuntary, can be a learning experience. People make what they think will be merely temporary adjustments in their consumption behavior to reduce financial distress but may discover that they like elements of their new consumption pattern; and businesses too, which have reduced their newspaper (and other print-media) ad expenditures drastically. They may never go back...

So what will happen to news and information? Online news is free for two reasons. First, in the case of a newspaper, the marginal cost of providing content online is virtually zero, since it is the same content (or a selection of the content) in a different medium. Second, online providers of news who are not affiliated with a newspaper can provide links to newspaper websites and paraphrase articles in newspapers, in neither case being required to compensate the newspaper...

Expanding copyright law to bar online access to copyrighted materials without the copyright holder's consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder's consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly news-gathering operations that news services like Reuters and the Associated Press would become the only professional, nongovernmental sources of news and opinion."

It is something of a surprise to note Judge Posner's support for a special expansion of copyright law to protect a particular industry, as he has in the past been critical of such moves as the continual expansion of copyright terms (See The Economic Structure of Intellectual Property Law by Richard Posner and William Landes and The Little Book of Plagiarism by Richard Posner). I don't have the solution to the decline of the newspaper industry or the killer idea for a sustainable business model that would rescue them but I can't agree that a law banning access or linking to their content is the way forward. People go to the New York Times because it is a reputable, credible source of news and commentary not because it is a newspaper. Their delivery medium was paper, it is now paper and the Net. Making it more difficult to get access to the NYT is unlikely to be the way to tackle their revenue problems. As Tim O'Reilly has been saying for some years, obscurity is a bigger threat than piracy.

Update: This online conversation from December last year amongst a who's who of legal scholars on the subject of challenges facing newspapers in a digital age is highly recommended.

Update 2: David Post is one of may respected scholars who think judge Posner's proposal is unworkable.

"So here we've gone and invented this fabulous global machine for linking and paraphrasing and sharing information, but nobody will be able to use it because we want to preserve the New York Times' business model. Hmmm.

My advice to the New York Times: don't count on that. Start thinking about how you can make money -- large quantities of it -- in a world in which linking and paraphrasing are pervasive and unrestricted. It's not going to be easy - if it were easy, we'd all be doing it already. But millions upon millions of people visit your website, every day - because you are the New York Times, and people value the product you produce. There's a way, I'm pretty certain, of converting that into income, though I don't know what it is and as far as I can tell neither does anyone else at the moment. Google, though, makes a lot of money giving away information, and you can too. Don't waste your time hoping that copyright law is going to come to your assistance, for it will not."

3 strikes resurrected by French government

The French government are not giving up on their three stikes agenda even after having it ruled unconstitutional by the Constitutional Council.

"The "three-strikes" saga continues in France following the Constitutional Council's recent decision canceling the sanction side of the bill (Billboard.biz, June 10), with the government attempting to find a way around the legal ruling.

While the educational part of the bill, which allows the administrative authority Hadopi to issue warnings to infringers, had been passed into law, a short new bill on the sanction side of the anti-piracy system has now been approved by government ministers to be introduced as legislation.

The French government had wanted Hadopi to be able to cut off repeat offenders after two warnings. With the Constitutional council having stressed that only a judge can rule on such terminations of Internet access, the new bill intends to simplify procedures to avoid French courts, which would slow the sanction process."

DRM, copyright and open source

I've been watching Cory Doctorow's talk to the Red Hat summit in 2006



It's amazingly relevant even three years later, eons in internet time.

Apple v PsyStar heading back to court

From CNet news:

"Apple wanted Psystar back in court, and now it's going to happen.

An automatic stay of proceedings imposed when Psystar filed for bankruptcy in May has been lifted by the court, according court documents shared with CNET News.

Judge Robert A. Mark, who serves the Southern District of Florida U.S. Bankruptcy Court, lifted the stay on Friday, opening the door for Apple to continue its copyright infringement case against the company."

Regular readers will recall the source of the dispute which I mentioned some months back.

"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.'"

China filter software company threatened

Employees of the company supplying the filter software which is to be compulsory on all new computers in China have reportedly been receiving death threats.

"The Chinese manufacturer of Internet-filtering software that must be distributed with all new computers next week has received death threats, state media said Wednesday.

Workers at Jinhui Computer System Engineering Co. received more than 1,000 harassing phone calls this month, according to Zhang Chenmin, the general manager of the company. He said personal information of some of the programmers had been leaked online, and one caller threatened to kill his wife and child.

"Most of the calls came late at night, cursing our staff and uttering obscenities, voicing their resentment against the software," Zhang was quoted as saying by the official Xinhua News Agency."

Assessing the battle for climate friendly technology IP

Josie Garthwaite of Earth2Tech has been assessing how big the battle for intellectual property protection of climate friendly technologies is.

Google privacy trial begins in Italy

The trial of Google executives 'accused of defamation and violating privacy for allowing a video to be posted online showing an autistic youth being abused' has begun in Italy.

"Google says the case violates EU rules by trying to place responsibility on providers for content uploaded by users.

The Mountain View, California, company also considers the trial a threat to freedom on the Internet because it could force providers into an impossible task - prescreening the thousands of hours of footage uploaded every day onto Web sites like the Google-owned YouTube.

Prosecutors and civil plaintiffs insist they don't want to censor the Internet, and maintain the case is about enforcing Italy's privacy rules as well as ensuring large corporations do their utmost to block inappropriate content, or quickly delete it."

Update: Well it did begin but it's been adjourned until September because an interpreter didn't appear when scheduled.

Music industry in Spain accept demise of 3 strikes?

The entertainment industry in Spain, in the form of the Coalition of Creators and Content Industries, has reportedly changed its campaigning focus away from pushing for 3 strikes and towards throttling the service of suspected copyright infringers.

"In his first public appearance as Coalition president, Aldo Olcese acknowledged that users are "our current and future clientele," and that punitive measures were out of the question. "We have no desire to criminalize Internet users who download illegally," he said.

Olcese was speaking just three days after Spanish Internet Service Provider (ISP) association Redtel announced that it would refuse to hold more talks with the Coalition, until the government comes up with a solution to piracy in Spain."

Music labels sue next biggest Irish ISPs

Following their success in eventually securing an out of court settlement where Eircom agreed to a 3 strikes regime, the big four music labels have now begun legal action against Ireland’s second-largest telco, BT Ireland, and largest cable operator UPC Ireland. I guess they weren't too impressed at the stand taken by the Internet Service Providers' Association of Ireland (ISPAI) against 3 strikes.

Given that the French constitutional council has recently declared even the French 3 strikes law to be unconstitutional it is hard to believe an Irish Court, in a country where no such law exists, would impose such a legal obligation on Irish ISPs. Yet Eircom would have settled because they thought they would lose in court. Part of that settlement involved the music cos. pursuing other ISPs on similar grounds so Eircom would not find themselves at a competitive disadvantage. But 3 strikes has been repeatedly rejected by the EU parliament and in several jurisdictions all over the world. The Council of Europe has again declared access to the Internet to be a fundamental right. It might conflict with the ECJ decision in the Promusicae case, various EU directives and the European Convention on Human Rights, not to mention the practical problems involved and the relative costs to the various parties. A decision in favor of the label has the potential to be challenged eventually both through the European Court of Justice and the European Court of Human Rights. Ed Felten's extrapolation of the 3 strikes approach to print media shows just how silly the whole approach is. And remarkably, even the entertainment industry friendly collective mindset of EU culture ministers agreed, in November last year, to reject the French 3 strikes idea:

"EU culture ministers yesterday (20 November) rejected French proposals to curb online piracy through compulsory measures against free downloading, instead agreeing to promote legal offers of music or films on the Internet.

The EU Culture Council pushed yesterday (20 November) for "a fair balance between the various fundamental rights" while fighting online piracy, first listing "the right to personal data protection," then "the freedom of information" and only lastly "the protection of intellectual property".

The Council conclusions also stressed the importance of "consumers' expectations in terms of access […] and diversity of the content offered online". No mention was made of a gradual response to serial downloaders of illegal cultural material, as foreseen by the French authorities."

Surely it is a bad time for the music industy to be bringing such a case to court? Or perhaps there is some insider knowledge that Ireland may now be the place to get the 3 strikes foot in the door of EU regulation? After all, in Groundhog Day fashion, the development of IP legislation has never had a lot to do with rational opposition to irrational expansion proposals.

Watching the watchers a perilous occupation?

The Guardian has a front page story about the inappropriate behaviour of some police officers at a climate change demonstration.

"Two female protesters who challenged police officers for not displaying their badge numbers were bundled to the ground, arrested and held in prison for four days, according to an official complaint lodged today.

The incident was caught on camera, and footage shows officers standing on the women's feet and applying pressure to their necks immediately after the women attempted to photograph a fellow officer who had refused to give his badge number.

The images are likely to fuel concern over the policing of protests, which is already subject to a review by the national police inspectorate and two parliamentary inquiries after the G20 demonstrations and the death of Ian Tomlinson."

This is yet another illustration of the kind of uncessary tension and conflict that can be stoked up through government obsession with mass surveillance - using new technology to watch everyone in the hope that it will magically point at the bad guys. Police resources are used up both in doing unnecessary mass surveillance and in dealing with the fall out from it. Protest groups are an emergent property of the mass surveillance and peaceful protestors come into direct conflict with the police, even through something as innocuous as politely asking for an officer's number. Everybody loses. The police lose because, at best, they come out of it looking like unreasonable thugs. The protestors lose because they get detained and locked away from their families for days. But of course every cloud has a silver lining. The criminal gangs, which I'm sure a lot of these police officers would like to be spending their time and effort combatting, have more time and space to get on with their nefarious activities whilst police attention and resources are distracted elsewhere tackling dangerous Guardian readers and their subsequent official complaints.

Mass surveillance 101 - lesson 1: Watching everybody in the hope that the computer/camera will magically point at the bad guys results not in the bad guys getting caught but in the [nominally] good guys fighting amongst themselves.