9 sacked over national ID scheme breaches

From Computer Weekly

"Nine staff have been sacked from their local authority jobs for snooping on personal records of celebrities and personal acquaintances held on the core database of the government's National Identity Scheme."

If you have a large pot of personal data which lots of users have access to as a routine part of their jobs it will get misused. Fact of life.

Efforts to quietly drop Amendment 138?

Just as I'd been wondering if the Department for Business Skills and Enterprise consultation on tackling illicit filesharing was deliberately trying to to bypass amendment 138 of the European Parliament's telecoms package, Commissioner Reding has released the Commission's official views on the parliaments amendments to the package. Monica Horton at IPTegrity says:

"DG Information Society has quietly released its position on the Telecoms Package Second Reading, just as everyone is heading off for the summer holidays. No doubt Commissioner Viviane Reding was hoping no-one would see it. Why? It calls for a "compromise" text which the Council of Ministers was trying to push onto the European Parliament, which could have the effect of giving permission to governments to block access to Internet services and applications.

The so-called "compromise" is the replacement of Amendment 138 ( which seeks to protect users rights on the Internet) with an alternative which was drafted by the Council (sometimes known as the ‘fake 138'). The replacement, when considered in context with other Amendments in the Package, will seal in to the Telecoms Framework a right for

governments to implement ‘measures regarding end-users' access to or use of services and applications through electronic communications networks'.

The so-called "compromise" is positioned in Article 1 of the Framework directive, addressed to Member States. It should be read in conjunction with Amendment 1.2a of the Universal Services and Users Rights directive, which will permit broadband providers to block impose "conditions limiting access to and/or use of services and applications". In light of T-Mobile blocking Skype, BT throttling peer-to-peer services, and Karoo, a small UK ISP cutting off users, it should now be abundantly clear what this text means. .

It is far from the ‘balanced' approach which the Commission claims."

Not having read the Commission's paper thoroughly I can't comment in any great detail but the paragraph which appears to be causing concern is penultimate one in the document.

"Concerning Amendment 138 the Commission accepted it in its amended proposal after the European Parliament's first reading but supported the European Parliament-Council compromise text afterwards as a balanced solution. The Commission could, therefore, accept the amendment, but will do its utmost to facilitate the emergence of a compromise between the co-legislators on this issue."

Given that amendment 138 blocks the termination (the"restriction.. on the fundamental rights and freesoms of end-users") of someone's internet access without prior judicial oversight and the compromise, as I recall, enabled terminations but facilitated a right of appeal to an independent tribunal, I can only suggest it is a potentially significant development.

FCC look into Apple rejection of Google app

Apparently the FCC has decided to ask Apple why they rejected Google's voice app for the iPhone.

"Signaling heightened scrutiny of the wireless industry, the Federal Communications Commission said Friday it was investigating why Apple rejected the Google Voice application for the iPhone.

The FCC sent letters to AT&T, Apple and Google asking for information about the decision and, more broadly, about how Apple runs its applications store."

Tenenbaum: a courtroom is not a classroom

Howard Knopf, in the wake of the Tenenbaum p2p verdict, is very critical of Charles Nesson's litigation strategy.

"It's not clear from all the tweet and blog reports that there was much if any evidence led by Nesson or elicited on cross examination that could have helped Joel with respect to such obvious issues as:

• A fair use defense, however unlikely it would have been to succeed. In fact, the defense was thrown out by the Judge before the trial because of a complete lack of evidence that might have somehow supported it. Prof. Oberholzer-Gee, also at Harvard, was the obvious expert witness who might have helped Joel on this front. His study is or ought to be known to everyone familiar with the P2P debate. If fair use was the Hail Mary pass that Prof. Nesson was counting on, he was told by Lessig, Fisher, Seltzer etc. etc. that it was a loser of an argument. Nesson notoriously published many of the emails from his colleagues confirming that the argument was hopeless. Although he persisted with it, he marshalled no relevant evidence in the Jude’s mind even to give it a chance of getting heard. Apparently, no attempt was made to use Oberholzer-Gee until about a week before the trial, which was least three months too late. If Oberholzer-Gee was not available, there were others (i.e. Andersen/Frenz 2008) who could have countered Stan Liebowitz - the able economist and very experienced expert witness called by the RIAA.

• A constitutional argument about statutory minimum damages that range from $750 to $150,000 per work for much less than a dollar’s worth of actual damage. Again, Oberholzer-Gee might also have been useful here to argue that P2P sharing does no overall harm to the music industry; and,

• Whether there was any actual distribution of each of the songs to anyone other than the Media Sentry investigator...

Not having taught at Harvard, I’m perhaps not qualified to give Prof. Nesson a lesson. But, as any practising lawyer knows, a court room is not a class room.

Given the litany of problems in the defense of Tenenbaum, the result is hardly a surprise. However, given the stature of Prof. Nesson, HLS, and the Berkman Center, the nature of the defense was very surprising. Nor is it surprising that HLS has been apparently been taking actions that might suggest that it is trying hard to distance itself this as the outcome was becoming apparent."

And Ray Beckerman doesn't believe any of the key issues have been tested in the case.

"Here are what I felt should be the central issues at this trial, in which the defendant had admitted using Kazaa file sharing software to download song copies:

1. If the plaintiffs wish to prove distribution, they should have to prove:
(a) dissemination of copies
(b) to the public
(c) by sale, other transfer of ownership, rental, lease, or lending. See 17 USC 106(3).

2. If the plaintiffs wish to claim statutory damages, they should have to prove as to each work allegedly infringed that its copyright registration effective date preceded the date on which defendant allegedly began using the "online media distribution system" in question...

3. Plaintiffs' lawyers should be prohibited from making any reference in the presence of the jury to any copyright infringement by anyone other than defendant or to their business problems or anything else unrelated to a copyright infringement by this defendant.

4. If the plaintiffs have proved a basis for seeking statutory damages, the jury should not be allowed to award statutory damages of more than $750 per infringed work, absent proof of actual damages of hundreds of dollars per infringed work. (There is long standing case law under the Copyright Act that statutory damages should bear a reasonable relationship to actual damages, and that even in commercial cases the usual multiple is from 2:1 to 4:1...

5. If plaintiffs' counsel claim that defendant "could have disseminated" a great number of copies "to the public" they should be required to prove that technically, rather than assuming it to be true, and they should be required to prove then that it actually did happen, rather than be permitted to speculate that it might have.

6. Plaintiffs should be required to prove that the downloaded song file copies were played and listened to, and their contents verified, by a person qualified to make such determination. See Deposition of President of MediaSentry in BMG v. Doe.

7. Testimony from MediaSentry and Jacobson should be barred under Daubert:
(a) Under Fed. R. Civ. P. and Fed. R. Evid., MediaSentry is an expert (see USA v. Ganier, 468 F.3d 920 (6th Cir. 2006); therefore its testimony should be barred for failure to provide expert witness disclosure;
(b) Alternatively, MediaSentry documents and testimony should be barred for failure to satisfy Daubert and Fed. R. Evid. 702;
(3) Jacobson testimony should be barred for failure to satisfy Daubert and Fed. R. Evid. 702

8. In the event that there are multiple mp3's from one album, the jury should be instructed that the album constitutes a single “work”."

Recreating MGM musical classics for the Proms

As a lifelong fan of MGM musicals, I was pleased to catch at least part of the broadcast of John Wilson's celebration of the genre in Prom 22 at the Royal Albert Hall on Saturday last.

Wilson wrote to MGM several years ago asking if he could have copies of or see the original scores of the classic musicals of the 1930s, 40s and 50s. Sadly these had been destroyed when the MGM library was demolished to build a carpark ( I think in the early 1960s). Wilson then decided to reconstruct the orchestral scores from scratch by watching the musicals and some of the fruits of that work were performed on Saturday evening last. To give you an idea of how much work was involved in this, it took him about a year in total (a 4 bar extract from The Wizard of Oz for example took him a day to put back together) to prepare for the concert, not just reconstructing the scores but finding the right musicians and singers to pull the whole thing together.

It's amazing to think that at least the management of MGM responsible for the demolition of the library believed that the music had no lasting value, given how much energy the studios and the music industry put into protecting and extending their copyrights. It is interesting too to compare this with the deliberate demolition of the set for Ben Hur and in particular the chariot race a few years later, reportedly because the producer, Samuel Bronston, did not want his masterpiece being used or copied in any inferior productions thereafter.

I'd really like to know the copyright saga behind this prom - how much and what kinds of negotiations went on over rights, whether Wilson (or more likely his or the BBC's lawyers) found MGM helpful with various aspects of the project; how the musicians and singers got involved and how they initially found out about the whole thing; how many artists were interested but didn't make the final cut and whether there were extensive auditions; whether, now Wilson has recreated the scores, MGM are claiming copyright/ownership of them; who was involved, at what levels and how did the final programme for the concert evolve in the planning; and is the John Wilson Orchestra going to perform again or was this a one-off for the proms?

Sadly the performance will only be available on the BBC iPlayer for a limited time.

Tenenbaum loses to the tune of $675,000

I hear reports that the Sony v Tenenbaum jury has awarded damages of $675,000 ($22,500 per song).

Update: Here's Ars Technica's take on it.

Update 2: Ray Beckerman doesn't think any of the key p2p copyright infringement litigation issues have been addressed in the case. Marc Bourgeois has been blogging about the proceedings at Beckerman's blog this week.

Update 3: More reactions from the usual suspects.

Tenenbaum case tweets

Ben Sheffner has been microblogging developments in the Tenenbaum case this week on Twitter.

Apple fan quits iPhone

A self proclaimed long standing iPhone fan, Michael Arrington at techcrunch, has finally had enough of Apple's drm and excess control mode of doing business and is giving up his iPhone even at the expense of paying a $175 termination fee to AT&T.

"What finally put me over the edge? It wasn’t the routinely dropped calls, something you can only truly understand once you have owned an iPhone (and which drove my friend Om Malik to bail). I’ve lived with that for two years. It’s not the lack of AT&T coverage at home. I’ve lived with that for two years, too. It certainly isn’t the lack of a physical keyboard, that has never bothered me. No, what finally put me over the edge is the Google Voice debacle...

Google is planning on rolling out number portability, so I can move my mobile phone number to Google. None of my friends, family or contacts have to store a new number...

Or so I thought. Apple and AT&T are now blocking the iPhone version of the Google Voice app. Why? Because they absolutely don’t want people doing exactly what I’m doing - moving their phone number to Google and using the carrier as a dumb pipe.

So I have to choose between the iPhone and Google Voice. It’s not an easy decision. Except, it sort of is. Google isn’t forcing the decision on me, Apple and AT&T are. So I choose to work with the company that isn’t forcing me to do things their way. And in this case, that’s Google."

I was explaining Apple's blocking of the iTunes sync feature on Palm Pre recently to my 11 year old and he said "You know dad, I hate all this drm stuff. Apple are really stupid and annoying. People should be able to play the music they've bought on any device they want." Spot on son and people should be able to use their phone on any network with any app they want too.

Jailbreaking the iPhone a threat to national security claims Apple

Hilariously, Apple has reportedly claimed that jailbreaking the iPhone poses a threat to national security.

"The nation’s cellphone networks could suffer “potentially catastrophic” cyberattacks by iPhone-wielding hackers at home and abroad if iPhone owners are permitted to legally jailbreak their shiny wireless devices — that’s what Apple claims.

The Copyright Office is considering a request by the Electronic Frontier Foundation to legalize the widespread practice of jailbreaking, in which iPhone owners hack their devices to accept software that hasn’t been approved for distribution through the iPhone App Store. Apple made the claim in comments filed last week (.pdf) with the agency...

Threat Level had no idea the iPhone was so dangerous. We’re gratified that Apple locked down this potential weapon of mass disruption before hackers could unleash cybarmageddon. This also explains why Apple rejected the official Google Voice App for the iPhone this week. We thought it was because Google Voice posed a threat to AT&T’s exclusivity deal with Apple. Now we know it threatened national security."

Hee hee.

Finnish CSS case heading for European Court of Human Rights

According to the terrific EDRi-gram folks the Finnish CSS case is now heading for the European Court of Human Rights.

"Finnish Activist Mikko Rauhala has lodged an application to the European Court of Human Rights versus the Finnish state, regarding his right to freedom of expression.

The appeal is a follow up to the lengthy court process against Mr. Rauhala in Finland. The process started when Mr. Rauhala started a discussion board on the Internet, on which people could talk about the DVD copy protection method Content Scrambling System (CSS). Mr. Rauhala's motivation for this act was to criticize the implementation of the EU Copyright Directive in Finland which came into force in 2006. According to the implementation of the directive, "organized discussion" regarding circumventing technological protection measures, like the CSS, was prohibited. Mr. Rauhala's motivation was to display the disbeneficial nature of the directive. Thus, he himself reported his actions to the Finnish police in the first place, thinking that the police would not investigate the issue or that the public prosecutor would not press charges.

However the Police started its investigation with the public prosecutor who was supported strongly by the Finnish Anti-Piracy Association which arranged the "expert" testimonies for the prosecutor. Soon thereafter, the case was referred to the Helsinki District Court which decided in Rauhala's favor; that CSS was not a type of protection measure covered by the Directive and therefore the ban did not apply. The district attorney appealed to the Helsinki Appellate Court, which stated that Mr. Rauhala was guilty of illegally circumventing a technological protection measure and of providing an illegal service for the circumvention of protection measures. The Supreme Court of Finland denied Mr. Rauhala's application.

Mr. Rauhala had no other choice than to make an application to the European Court of Human Rights, because in all the court instances his argument that the discussion he was administering was within the confines of the Right to Freedom of Speech, as enshrined in the Finnish Constitution, was not considered. Mr. Rauhala is represented by the Helsinki, Finland based law firm Turre Legal.

EDRi-gram: Finish CSS decision overturned (4.06.2008)
http://www.edri.org/edrigram/number6.11/finish-css-overturned

(contribution by Markku Räsänen - Summer Associate, Turre Legal, Finland)"

It will certainly be interesting to see what the ECHR makes of it.

Boyle: beyond mocking the clueless

James Boyle has some interesting thoughts about the AP's embrace of drm as the saviour of the newspaper industry.

"The response of the tech-savvy was, predictably, pretty savage. Techdirt ("it's difficult to think of anything quite this useless") at least offered some principles on which sustainable web businesses might be built. Others were not as kind. Someone even created an extremely profane and sometimes juvenile, but nevertheless quite funny anonymous graphical translation of the AP's diagram to explain the new plan. The criticisms of the plan (clueless graphics aside) centered around two tenets that are familiar to Techdirt readers.

1. an argument that DRM is a.) doomed to fail technologically and b.) has in fact already failed in social and economic practice...
2. an assertion that "old media" (other names include "the clueless" "dinosaurs" "non digital natives" "the walking dead" etc.) are demonstrably incapable of understanding the potential upside of the sharing economy, or copy-friendly technologies, still less the business models that can be built on top of them...

Personally, I am at best agnostic about tenet #1. I am not a technological determinist. I think that DRM has failed spectacularly in some areas (root kits on CD's)... and become standard (even if not loved) in others...

On tenet #2, I think we are thinking too narrowly. Behavioral economists have identified specific deviations from economic rationality in human psychology-- we tend to value potential losses asymmetrically from potential gains, to use simple heuristics even when they are shown to be false and so on. In my new book, The Public Domain (freely available online, of course) I argue that we have a measurable cognitive bias against "openness" -- I call it cultural agoraphobia, and I argue that it impedes us in understanding the creative potential, productive processes and forms of social organization that the web makes possible... I would even argue that this cognitive bias, even more than industry capture of regulators, is one reason why our current intellectual property policy is so profoundly and utterly misguided. But its implications are wider still...

Unless you believe that markets spontaneously self-correct for everything (hint, check your IRA balance before you answer this question) you have to acknowledge that the problem that the AP is responding to may be our problem (how to pay for the kind of expensive investigative journalism that is a real boon to democracy and liberty) as well as their problem (how not to die in the immediate future.)...

I was lucky enough to be involved with Creative Commons from its inception and to help found Science Commons and ccLearn. Those organizations were designed to solve a particular problem for which there was a market and legal gap -- the problem of failed sharing. Jesse Dylan's brilliant video on the subject explains it better than I could. Are there equivalent institutional innovations that could help in the area of news gathering? I don't know. Journalism isn't my field. But without the kind of institutional innovation and experimentation in civil society that Creative Commons (or the Kiwani's) represented, I think that we are unlikely to solve its problems. Web 2.0 business methods alone, even with a Techdirt crystal ball, will not be enough. If I am right, mocking the clueless will be a poor consolation. "

The Jessie Dylan video James mentioned is this one:

Unconstitutional Copyrights?

Tom Bell at Chapman University has been working on his draft book over the summer and explaining in an extract from the book, at the Technology Liberation Front, why he thinks most of the material covered by copyright today doesn't pass muster against the US constitutional requirement "to promote the Progress of Science and the useful Arts”.

"acquiescence to long-accepted practices has dulled us to the Constitution’s bracingly straightforward words. We should read them anew and reflect that the Founding generation did not evidently think that granting statutory privileges to such purely artistic creations as romantic operas or pretty pictures would promote the progress of both science and the useful arts. Furthermore, most citizens today would, if presented with the Constitution’s plain language rather than the convoluted arguments of professional jurisprudes, probably say the same thing about pop songs, blockbuster movies, and the like. That is certainly not to say that purely expressive works lack value. They may very well promote such important goals as beauty, truth, and simple amusement. The Constitution requires that copyright promote something else, however—”the Progress of Science and useful Arts”—and a great many works now covered by copyright cannot plausibly claim to do both."

Interesting argument. He does accept, however, that the chances of winding back the clock on this through the courts are basically slim to non existent.

Bang goes the theory: biometrics

The new OU and BBC series Bang Goes the Theory hit the airwaves on Monday and by coincidence the the opening segments dealt with subject matter which has been periodically covered at b2fxxx over the years - cctv and biometrics. The nature of the show is to introduce the hard science and technology and make it accessible to a wide audience and if my ten year old's reaction to it is any measure it was certainly accessible and entertaining. He particularly enjoyed the frying of the egg in a sheet of newspaper and the vortex cannon sections. Though he was totally freaked out by Craig Venter's plans to create new forms of life and did feel slightly cheated by being led to expect that the cannon would blow down a house of bricks and then finding it was a wall of bricks which didn't even have mortar hold them together! The sight of the shape of the vortex ring blasting through the top of the wall compensated slightly however.



Certainly shades of his other current favorite programme, Top Gear, in there.

Getting back to biometric matters and specifically the gait recognition segment of the show I penned a follow up piece for the open2.net Bang blog, to explain some of the issues associated with the use of biometrics for surveillance and offer links to more in depth analyses. A copy of those thoughts follows:

The idea of gait recognition has been around for a long time. In G.K. Chesterton’s short story The Queer Feet, Father Brown prevents a crime by “merely by listening to a few footsteps in a passage.” Gait analysis has been widely deployed in professional sports and medicine, enabling sports stars to improve their golf swing, running stance or cycling position and helping in the design of prosthetic limbs for example.

As a means of identifying someone at a distance, without any need to inconvenience the people being analysed, it would appear to be a useful proposition. It is important to note, however, that identifying someone in a crowded city square and verifying that someone is one of 200 people who have walked down a colourful corridor with clear contrast under carefully controlled laboratory conditions, are two entirely different problems.

Technically speaking, checking the gait of one person, in a psychedelic corridor with perfect lighting conditions, to find a match in a database of 200 recorded gaits, is relatively straightforward.

Detecting individual gaits in a dynamic, crowded city square, under less than ideal lighting conditions and pinpointing a baddie by attempting to match those (potentially) millions of readings against a database of millions of recorded gaits, is a much more difficult problem.

And we haven’t even thought about how we would get accurate measurements of millions of people’s (or indeed the baddie’s) walking styles on our benchmark database in the first place yet. Then if the baddie puts a stone in his shoe to change his walk to deliberately fool the software, as Dallas did with his funny walk on the first programme in the Bang Goes The Theory series³, it becomes even more difficult.

From a security perspective, the notion that mass surveillance with advanced technology will magically detect the baddie, turns out to be fundamentally flawed. (It should be noted that mass surveillance is widely and wrongly promoted as an effective anti-terror tool but it is not advocated by the team at Southampton.)

Because terrorists are relatively rare, finding one is a needle in a haystack problem. You don’t make it easier to find the terrorist by throwing more hay (say the biometric data of millions of innocent people) on your data haystack. The technology doesn’t simply home in on the criminal as it does in Hollywood movies.

The police and security services end up spending so much time dealing with innocent people and false leads that their limited resources get swamped.

If each of the UK’s population of around 60 million were monitored once a day and our system was 99% accurate (e.g. flags 1 in a 100 innocents as terrorists and detects 99 out of every 100 terrorists), the police will have to process 600,000 false leads per day.

Given those of us who traverse public places are monitored multiple times a day you can see how that could quickly become unmanageable. It’s also unacceptable from a social, legal and economic point of view.

So it is probable that the use of gait recognition and other biometrics will prove to be more useful for small scale authentication - e.g. employee access to the workplace, rather than large scale surveillance e.g. picking a terrorist out of a crowd.

On small-scale authentication

Technically speaking authentication or verification is an easier thing to do than identification. Authentication (assuming we’re not trying to do it remotely) with biometrics merely asks whether a biometric belongs to the person presenting themselves for authentication. It compares their proffered biometric with the one on file under their name and determines whether there is a match.

Identification is much harder to do and is what security systems at airports or busy shopping areas or sports stadiums attempt to do – measure the biometrics of everyone passing through and attempt to check whether there is a match with a large (and not necessarily particularly reliable) database of biometrics.

The difference appears pedantic but is very important. In the authentication case one biometric is checked against one specific biometric on the database. In the identification case, millions of biometrics are checked against millions (potentially) of biometrics on the database.

Even with highly reliable technologies – say 99.9% accurate and none of the modern systems approach that yet – these millions of checks searching for matching pairs generate huge numbers of false positives (innocents flagged as malcontents) and dangerous levels of false negatives (real bad guys flagged as innocents and it only takes one to get through to cause serious security problems).

The police and security services then spend so much time, energy and resources dealing with innocent people they don’t have the time to deal with the real criminals.

Find out more

Floyd Rudmin, Professor of Social & Community Psychology at the University of Tromsø in Norway, explains why, statistically speaking, mass surveillance cannot work in this article:
The Politics of Paranoia and Intimidation: Why does the NSA engage in mass surveillance of Americans when it's statistically impossible for such spying to detect terrorists? ⁴
Counterpunch magazine, May 24, 2006

For those interested in the use of biometrics and security more generally I’d recommend:
Beyond Fear: Thinking Sensibly About Security in an Uncertain World
Bruce Schneier, Springer-Verlag New York Inc

Freedom to Tinker blog ⁵ - hosted by Princeton's Center for Information Technology Policy.

Jerry Fishenden Blog ⁶ - New Technology Observations from a UK Perspective.

UK High Court Judge, Hon Sir Jack Beatson explains the legal issues with the use of biometrics in crime detection in Forensic Science and Human Rights: The Challenges ⁷ [pdf], his valedictory address as President of the British Academy of Forensic Science, 16 June 2009.

Nuffield Council on Bioethics report, The forensic use of bioinformation: ethical issues ⁸ [pdf], published in September 2007.

Human Genetics Commission Citizens Report ⁹, July 2008.

Biometrics: Enabling Guilty Men to Go Free? Further Adventures from the Law of Unintended Consequences ¹⁰ - Jerry Fishenden blog post

Digital Decision Making: Back to the Future - chapters five and six
Ray Corrigan, Springer-Verlag, 2007

Study information and communications technologies with The Open University

ECJ: 11 words can infringe

According to Outlaw the European Court of Justice has ruled that reproduction of 11-word snippets of news can constitute copyright infringement.

"46 Words as such do not, therefore, constitute elements covered by the protection.

47 That being so, given the requirement of a broad interpretation of the scope of the protection conferred by Article 2 of Directive 2001/29, the possibility may not be ruled out that certain isolated sentences, or even certain parts of sentences in the text in question, may be suitable for conveying to the reader the originality of a publication such as a newspaper article, by communicating to that reader an element which is, in itself, the expression of the intellectual creation of the author of that article. Such sentences or parts of sentences are, therefore, liable to come within the scope of the protection provided for in Article 2(a) of that directive.

48 In the light of those considerations, the reproduction of an extract of a protected work which, like those at issue in the main proceedings, comprises 11 consecutive words thereof, is such as to constitute reproduction in part within the meaning of Article 2 of Directive 2001/29, if that extract contains an element of the work which, as such, expresses the author’s own intellectual creation; it is for the national court to make this determination...

51 In the light of the foregoing, the answer to the first question is that an act occurring during a data capture process, which consists of storing an extract of a protected work comprising 11 words and printing out that extract, is such as to come within the concept of reproduction in part within the meaning of Article 2 of Directive 2001/29, if the elements thus reproduced are the expression of the intellectual creation of their author; it is for the national court to make this determination...

61 The Court finds...that a temporary and transient act of reproduction is intended to enable the completion of a technological process of which it forms an integral and essential part. In those circumstances...those acts of reproduction must not exceed what is necessary for the proper completion of that technological process.

62 Legal certainty for rightholders further requires that the storage and deletion of the reproduction not be dependent on discretionary human intervention, particularly by the user of protected works. There is no guarantee that in such cases the person concerned will actually delete the reproduction created or, in any event, that he will delete it once its existence is no longer justified by its function of enabling the completion of a technological process...

64 In the light of the foregoing, the Court finds that an act can be held to be ‘transient’ within the meaning of the second condition laid down in Article 5(1) of Directive 2001/29 only if its duration is limited to what is necessary for the proper completion of the technological process in question, it being understood that that process must be automated so that it deletes that act automatically, without human intervention, once its function of enabling the completion of such a process has come to an end.

65 In the main proceedings, the possibility cannot be ruled out at the outset that in the first two acts of reproduction at issue in those proceedings, namely the creation of TIFF files and text files resulting from the conversion of TIFF files, may be held to be transient as long as they are deleted automatically from the computer memory.

66 Regarding the third act of reproduction, namely the storing of a text extract of 11 words, the evidence submitted to the Court does not permit an assessment of whether the technological process is automated with the result that that file is deleted promptly and without human intervention from the computer memory. It is for the national court to ascertain whether the deletion of that file is dependent on the will of the user of the reproduction and whether there is a risk that the file might remain stored once the function of enabling completion of the technological process has come to an end.

67 It is common ground, however, that, by the last act of reproduction in the data capture process, Infopaq is making a reproduction outside the sphere of computer technology. It is printing out files containing the extracts of 11 words and thus reproduces those extracts on a paper medium.

68 Once the reproduction has been affixed onto such a medium, it disappears only when the paper itself is destroyed.

69 Moreover, since the data capture process is apparently not likely itself to destroy that medium, the deletion of that reproduction is entirely dependent on the will of the user of that process. It is not at all certain that he will want to dispose of the reproduction, which means that there is a risk that the reproduction will remain in existence for a longer period, according to the user’s needs.

70 In those circumstances, the Court finds that the last act in the data capture process at issue in the main proceedings, during which Infopaq prints out the extracts of 11 words, is not a transient act within the meaning of Article 5(1) of Directive 2001/29...

...the Court (Fourth Chamber) hereby rules:

1. An act occurring during a data capture process, which consists of storing an extract of a protected work comprising 11 words and printing out that extract, is such as to come within the concept of reproduction in part within the meaning of Article 2 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, if the elements thus reproduced are the expression of the intellectual creation of their author; it is for the national court to make this determination.

2. The act of printing out an extract of 11 words, during a data capture process such as that at issue in the main proceedings, does not fulfil the condition of being transient in nature as required by Article 5(1) of Directive 2001/29 and, therefore, that process cannot be carried out without the consent of the relevant rightholders."

David Davis: Google need not apply

David Davis is less than enamoured with the Conservative party's idea about letting Google manage NHS data.

"When I read in the pages of this newspaper this month that the Conservative Party was planning to transfer people’s health data to Google, my heart sank. The policy described was so naive I could only hope that it was an unapproved kite-flying exercise by a young researcher in Conservative HQ. If not, what was proposed was both dangerous in its own right, and hazardous to the public acceptability of necessary reforms to the state’s handling of our private information.

There are powerful arguments for people owning their own information and having rights to control it. There are massive weaknesses in the NHS’s bloated central database and there are benefits from using the private sector. But there are also enormous risks, so we are still a long step from being able to give personal data to any company, let alone Google.

Google is the last company I would trust with data belonging to me."

I suspect Google executives won't be Mr Davis biggest fans either.

Tenebaum v RIAA: How it feels to be sued for $4.5m

The Tenenbaum v RIAA trial has finally begun in a Boston courtroom and perhaps a little surprisingly, given how reluctant they were, at the original deposition in September 2008, to indicate how Charles Nesson got involved in the case, Joel Tenenbaum himself, writing in yesterday's Guardian, freely reveals that Professor Nesson approached him.

Needless to say the Tenenbaum case will be closely watched by the usual suspects but this whole area of the future of our information ecology has to get beyond the usual small number of commercial vested interests, librarians, scholars, artists and activists and somehow into the consciousness of the wider public, if we are to make any real progress. In the case of our physical environment people 'get' the climate change argument even if, as Edward O. Wilson eloquently explained in a New Scientist interview in 2006 (podcast below) about his attempts to reach out to the US religious right, we are in denial about the message and the potential lifestyle implications.





The environmental sustainability story is at least on the cognitive radar of Jo Public although, as David McKay says, it is every big and not every little that is going to make a difference. The ongoing evolution of our knowledge ecology sadly exercises the cerebral and professional energies of the few; and even those few have little or no empirical evidence with which to work to enable the beginnings of any kind of rational mapping of our future information landscape.

Bezos apologises for Kindle Owellian misstep

Michael Geist reports that Jeff Bezos has apologised for remotely deleting people's copies of Animal Farm and 1984 from customers' Kindles.

"Without any warning or consent, Amazon remotely deleted copies of two books from thousands of Kindle devices. Few customers were aware that Amazon retained the technical capability to erase ebooks from their devices. Yet, when the company learned that two books had been distributed without proper authorization, it simply deleted the books and promised a refund.

The case proved that fact is often stranger than fiction since the books were George Orwell's 1984 and Animal Farm, conjuring up new images of the Orwellian vision of information control...

While Amazon has since apologized and promised that it won't repeat the Orwell misstep, the reality is that this incident is only the latest in a long line in which companies prove to be their own worst enemy by undermining consumer confidence in the digital economy."

UK ISP Karoo go 3 strikes

UK ISP Karoo are implementing a 3 strikes policy according to the Guardian.

"Internet users in Hull risk having their connection cut if they illegally share files, under a controversial "three strikes and out policy" operated by the only internet service provider in the area.

Karoo, the north-eastern city's only ISP, serving 90,000 customers, has in recent years, with little national publicity, been cutting users' internet connection immediately and without warning if they were found to be in breach of copyright.

It was forced to relax its stance after growing criticism from digital rights groups and customers."

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.