Virtual Revolution: the Microsoft case and the web

Several people have asked me about Bill Gates and Microsoft’s role in the history of the Web in the wake of the opening programme in the Open University's new series on BBC2 on Saturday evening, The Virtual Revolution.  In particular there was interest in the legal ruling that presenter Dr Aleks Krotoski said “meant that Microsoft had had its wings clipped.”

There have actually been a series of legal disputes between Microsoft and the US government and between the software giant and the EU.  To keep things relatively simple I’ll focus here on one part of the US case relating to the Web.

By the mid 1990s when the Web hit public consciousness most web users were using a web browser called Netscape Navigator.  Then, as Dr Krotoski says, Microsoft launched its own browser, Internet Explorer, and gave it away for free with its Windows 95 operating system software.  But Microsoft didn’t just give the browser away.  PC manufacturers selling PCs with Windows 95 were obliged, under the software licence agreement, to include the Internet Explorer browser on their PCs.

This didn’t have an immediate impact on Netscape’s market share. However, as Microsoft issued improved versions of Internet Explorer and continued to insist on the bundling software licence provisions requiring PC makers to use their browser, Netscape’s position as market leader was eroded and eventually decimated. People running computers with Windows 95 quite naturally just used the user friendly browser with the convenient icon on their desktop.

Microsoft, in an earlier case with the US Department of Justice (DOJ) settled before the release of Internet Explorer, had agreed not to use its dominant market share to squash the competition.  The DOJ now felt that was exactly what the company was doing to Netscape and, along with 19 US states, in 1997 sued the company for breaking the earlier agreement and engaging in anti-competitive practices.  The case proved to be a complex and fascinating story in itself, full of dramatic courtroom revelations and characters, victories and losses for the various protagonists.

By 1999 Judge Jackson decided that Microsoft had engaged in anti-competitive behaviour that was damaging to competitors and consumers and in April the following year he issued his final ruling to that effect.  Then in June 2000 Judge Jackson ordered that Microsoft be broken into two companies.  Microsoft appealed.

In January 2001 George W. Bush ascended to the White House as the 43^rd US President and John Ashcroft took charge of the DOJ on his behalf. In June 2001 the Appeal Court reversed Judge Jackson’s breakup order.  By September the DOJ told the new judge in the case, judge Kollar-Kotelly that it was no longer seeking the breakup of the company as a penalty for its actions.  By November 2002 Judge Kollar-Kotelly approved a settlement reached by Microsoft and the DOJ and most of the states. Massachusetts fought on alone in vain until 2004.

So did Microsoft have its wings clipped as Dr Krotoski says?  Well it’s debatable and you’ll find many expert commentators on both sides of the divide on that one.  What is clear is that in 1995 Netscape was the window to the web for the masses.  By 1997, when this particular version of the Microsoft legal story began, Netscape still had the lead in the browser wars though Internet Explorer was catching up fast.  By the time the case was settled Internet Explorer was dominant and Windows XP had been launched, including the latest version of Internet Explorer.  Netscape was taken over by AOL in 1998 but effectively ceased to exist by the summer of 2003.

An edited version of this post is available on the open2.net blog.

ACTA: Save Jim!

An amusing take on the ACTA negotiations:

Save Jim Now
by SaveJim

The iPad

I've deliberately avoided getting into the media frenzy about Apple's latest creation, the over-sized iPod Touch called the iPad.  But John, as usual, gets it spot on:

"If the iPad takes off as the iPhone did, then it will have as disruptive an impact on the computing and media industries as the Apple phone has already had on mobile telephony.
And if that happens then we will all have to take a long, hard look at the company that has made it possible.
For the implication of an iPad-crazed world – with its millions of delighted, infatuated users – is that a single US company renowned for control-freakery will have become the gatekeeper to the online world. The iPad – like the iPhone – is a closed, tightly controlled device: nothing gets on to it that has not been expressly approved by Apple. We will have arrived at an Orwellian end by Huxleian means. And be foolish enough to think that we've attained nirvana."

Brewster Kahle also points out some of his concerns about a future of Apple control in this morning's Guardian.

Interpol chief questions body scanner rollout

From the Register:

"The head of Interpol has questioned whether the ongoing scramble by western governments to install body scanners at airports is financially worthwhile and said they are is unlikely to stop terrorists."

Good for him!

Geist: ACTA part 5

Part 5 of Michael Geist's guide to ACTA is now available.

Liberal Democrats support strip search machines?

Liberal Democrat MEP, Sarah Ludford has been pontificating about digital strip search machines in the Guardian.

"So the Westminster parliament and European Union lawmakers (including MEPs) must not only guarantee to the travelling public that their images will be deleted. They must also ensure that body scanners will not be physically capable of storage and transmission. This seems the only way to guarantee that the state will not try to further invade our privacy in future, and that images of celebrities, children or others will not find their way onto the internet and TV. Our fundamental human right to a private life demands no less."

No Ms Ludford.  The only way to ensure these machines are not used to invade our privacy is to ban them. 

This woman is the Liberal Democrat European justice & human rights spokeswoman.  To echo Elizabeth Wilmhurst at yesterday's Chilcot hearing it is extraordinary that the political chattering classes can view the world through such distorted lenses as to assume the deployment of strip search machines for the masses is a reasonable response to a failed bomb plot. Remember that these machines do strip search but don't detect incendiary materials.

I wonder what Churchill, Roosevelt, Truman and others who fought two world wars in the name of freedom would have made of the inheritors of their legacy?  Ben Franklin might be tempted to draw on one of his own quotes:

"They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety."

The cost of 3 strikes regimes

More from Michael Geist, this time on ACTA and the cost of 3 strikes regimes.

"Canadian officials travel to Guadalajara, Mexico this week to resume negotiations on the still-secret Anti-Counterfeiting Trade Agreement. The discussion is likely to turn to the prospect of supporting three strikes and you’re out systems that could result in thousands of people losing access to the Internet based on three allegations of copyright infringement. Leaked ACTA documents indicate that encouraging the adoption of three-strikes - often euphemistically described as “graduated response” for the way Internet providers gradually send increasingly threatening warnings to subscribers - has been proposed for possible inclusion in the treaty.

While supporters claim that three strikes is garnering increasing international acceptance, the truth is implementation in many countries is a mixed bag. Countries such as Germany and Spain have rejected it, acknowledging criticisms that loss of Internet access for up to a year for an entire household is a disproportionate punishment for unproven, non-commercial infringement."

Geist ACTA guide part 2

Speaking of ACTA, here's Michael Geist's ACTA guide part 2.

"Negotiations in the 7th round of the ACTA talks open this morning in Mexico with civil enforcement issues on the agenda.  Yesterday I postedon the developments to-date, including a chronology of talks, issues, and leaks that have led to this week's round of discussions...

Of far greater importance are the leaked documents.  These have confirmed how the Anti-Counterfeiting Trade Agreement is designed to extend far beyond counterfeiting and how it would reshape domestic law in many countries, including Canada.  Links to all the leaks are posted below.  Note that many are dated and therefore reflect initial thinking but may have changed over the course of recent discussions.

• Confidentiality statement: terms of confidentiality for ACTA documents (U.S.)
• Business Group demands for ACTA
• 2007 Outline Proposal for ACTA
• EU Analysis of the ACTA Internet chapter
• EU Advance Summary of the ACTA Internet chapter
• Canadian non-paper on Institutional arrangements
• Definitions (U.S.)
• Border Measures Chapter (U.S. and Japan)
• Criminal Provisions Chapter (U.S. and Japan)
• Civil Enforcement Chapter (U.S. and Japan)"

James Boyle: Obama record on tech policy is mixed

James Boyle has another terrific article in the FT, this time on Obama's mixed record on tech policy

"Let us start 2010 with some good news. In June of last year, I wrote about the Obama Administration’s record on technology policy. There was much to praise in the reinvigoration of the FCC’s commitment to “net neutrality,” (the commitment to a non-discriminatory internet) and a lot to hope for in terms of patent policy.
Unfortunately, in the copyright realm, the Obama administration had devoted itself, like its predecessors, largely to a content industry agenda which has given us mind-numbingly long copyright terms, intrusive legally backed digital rights management, and even a new proposal to cut individuals off from the internet simply for being accused, three times, of illicit downloading."

He goes on to discuss the US's changed stance on the WIPO copyright exceptions treaty for the visually impaired - having originally opposed it the US now supports it - and the secret ACTA negotiations, which if "this were to be debated in public in London or Paris or Washington, those proposals would meet with furious objections by everyone from civil libertarians to the communications and consumer electronics industry."  Read the whole thing. You can't beat James for succinct, engaging, educational reporting on intellectual property and this stuff is incredibly important.

Digital Economy bill debate: quote of the week

Via the wonderful Lilian Edwards, the quote of the week in the House of Lords debate on the government's Digital Economy bill came from Lord Lucas:

"We have to be careful about setting out to criminalise, as he says, a large proportion of our population, particularly when it involves putting them not in the hands of the criminal law with all the safeguards, care and rationality that involves, but in the hands of firms of solicitors who are out to make a

12 Jan 2010 : Column 423

buck from the process. None of these people are nice to deal with."

Court drops Jammie Thomas P2P damages from $1.9 million to $54,000

From Ars Technica:

"Judge Michael Davis is the senior federal jurist in Minnesota. He presides over the gleaming 15th floor courtroom where, earlier this year, P2P user Jammie Thomas-Rasset was slapped with $1.92 million in damages for sharing 24 songs. Davis made no comment on the amount of the award and showed no emotion as it was read out.
But now we know how he rely feels about the jury's work in that case: it led to a "monstrous and shocking" damage award that veered into "the realm of gross injustice."
Davis used his power of remittitur today to slash the damage award by 97.2 percent, from $1.92 million down to $54,000—and he suggested that even this lower amount was too high."

Strip search machines don't work

This 10 minute German TV piece about digital strip search machines shows how the machine failed to spot materials which were subsequently quickly combined to make an incendiary device.
Pretty self explanatory even if you don't speak German

How did OiNK get away with it?

Andres has a succinct analysis of the issues in the OiNK torrent filesharing case.

"So, it is clear that OiNK was in the wrong, and the fate of Mr Alan Ellis was sealed, right? Not really.  The problem seems to have been that prosecutors chose to charge Mr Ellis with conspiracy to defraud, instead of anything related to copyright infringement.  This meant that they had to prove that Mr Ellis was trying to defraud its customers, when it was clear that he was offering a service, and his clientèle knew fully well what they were getting into.  No fraud then.
Why didn’t the prosecution try for copyright infringement offences?  For example, s107 CDPA establishes criminal offences for various copyright infringement acts made “in the course of business”.  As Mr Ellis was clearly profiting handsomely from his services, it could be argued strongly that he was infringing copyright for commercial gain.  Or can it?  The main problem with torrent sites is precisely that no infringing copies are kept on the servers, and that the trackers act simply as facilitators.  Using a real-world analogy, torrent sites are more akin to bar lounges where illicit goods change hands.  Nonetheless, s107 also covers secondary infringement offences, such as communicating infringing copies to the public, which one might think is precisely what a torrent site does.  However, the wording of UK copyright law is problematic in this respect, as it seems entirely drafted with physical copyright infringement in mind...

It seems then that prosecutors were not sure to obtain a guilty verdict through copyright infringement.  OUT-Law makes a good point that the best way to proceed was to pursue OiNK for authorising copyright infringement, which is a civil offence for secondary infringement (see s24(2) CDPA)."

 

Swedish ISP appeals court order to identity torrent owner

From TorrentFreak:

"The Swedish ISP TeliaSonera is refusing to comply with a court ruling ordering the company to hand over information identifying the owner of SweTorrents. Instead, it has appealed the decision, arguing that the verdict is in violation of the European data retention directive and claiming that SweTorrents doesn’t host any copyrighted files."

The piece goes on to claim that if the ISP's appeal is successful the new (2009) Swedish implementation of the Intellectual Property Rights Enforcement directive "will be crushed". Don't bet on it.

Ellis of Oink found not guilty

Interesting jury decision in the Oink case. Alan Ellis who ran the site has been found not guilty of fraud.

"As the case centered on an accusation of fraud, and prosecutors also had to prove Ellis made a profit and prosecutors moved to show the amount of money made by Ellis by operating the venture. It appeared from evidence given that there wasn't a subscription fee as such for using Oink, but users were encouraged to make donations, and it's alleged that a donation was compulsory whenever someone wanted to invite a friend to join the community.

Prosecutors said Ellis had amassed $300,000 in donations in his PayPal account by the time site was shut down and was receiving about $18,000 each month in ‘donations’ – and that he had £20,000 in his bank accounts. Ellis insisted that the monies were to pay server costs – and possibly buy a new server - and that he, unlike the Oink’s actual users, wasn’t personally guilty of infringement, because he didn't personally host or share any infringing content. By way of an aside, in the US in MGM v Grokster a charge of what was in effect 'authorising infringement' was successfully brought and in Sweden the four men behind The Pirate Bay were found guilty of copyright infringement...

Well, we can report the verdict - and in this case Mr Elllis has been found NOT GUILTY. He left court without speaking to reporters.

http://news.bbc.co.uk/1/hi/england/tees/8461879.stm"

Ireland plans for DNA database advancing

Thanks to TJ McIntyre for alerting me via EDRI-gram to the latest Irish government plans to establish a DNA database.  Innocent people's DNA details are to be held for 3 years.

"The Irish Government has announced that it will publish legislation this week to set up a national DNA database. The Bill follows a 2005 Report of the Law Reform Commission on Establishment of a DNA Database but was delayed by the European Court of Human Rights action in S and Marper vs. the United Kingdom and has since been revised in light of that case.
The legislation proposes to allow Gardaí (Police) to forcibly take samples (such as hair, saliva, nail clippings or blood) from those suspected of committing a criminal offence carrying a possible sentence of five years imprisonment or more. Samples will be stored indefinitely where suspects are convicted; where persons are acquitted or released without charge they will still be retained for a three year period. 4.1 million euros has been allocated for the start-up costs associated with the database in 2010.
In 2007, the Irish Human Rights Commission was critical of a previous draft of the legislation. Until the full Bill is published it is unclear to what extent it will address these concerns.
In a separate development, it has emerged that a Dublin children's hospital has been holding DNA records of almost every person born in Ireland since 1984 without consent. The Temple Street Children's Hospital has acted as a national centre for "heel prick tests" which involve the taking of a blood sample from each newborn child and using that sample to screen for disease. However, the hospital does not destroy those samples when screening is complete but instead retains those samples indefinitely, linked to the individual. There are approximately 1.54 million samples held on this database, which would include the overwhelming majority of Irish people aged 25 or younger. The hospital is currently under investigation by the Data Protection Commissioner who may order the destruction of these samples.
Law Reform Commission, Report on the Establishment of a DNA Database (11.2005)
http://www.lawreform.ie/DNA%20Database%20Report%20No1.pdf
Irish Human Rights Commission, Safeguards in DNA Database Scheme of Bill 'Inadequate' (8.08.2007)
http://www.ihrc.ie/press_releases/newsarticle.asp?NID=215&NCID=12&T=N
Connolly, Suspects forced to give DNA samples under new legislation (20.12.2009)
http://www.sbpost.ie/news/suspects-forced-to-give-dna-samples-under-new-legislation-46388.html
Connolly, New DNA Bill faces opposition (20.12.2009)
http://www.sbpost.ie/news/ireland/new-dna-bill-faces-opposition-46369.html
Dáil debates (10.12.2009)
http://www.kildarestreet.com/debates/?id=2009-12-10.551.0
Tighe, Hospital keeps secret DNA file (27.12.2009)
http://www.timesonline.co.uk/tol/news/world/ireland/article6968561.ece
Tighe, Records stolen from hospital that held secret DNA database (10.01.2010)
http://www.timesonline.co.uk/tol/news/world/ireland/article6982446.ece
(Contribution by TJ McIntyre - EDRi-member Digital Rights Ireland)"

Commissioner Reding warning re. strip search machines

The Washington Post reports that Commissioner Reding is asking for some restraint on the out of control idea to deploy strip search machines at all airports.

"The European Union should not rush into introducing full-body scanners at airports but give consideration to privacy and health questions, the EU's justice commissioner-designate said on Tuesday...

"We need to look at less intrusive means; Human beings have dignity and every measure has to be clarified first. Does it respect human dignity, does it respect privacy and does it respect health?...

We have to have a very clear line on this. We must never be driven by fear but by our values," Reding told parliamentarians.  "

Finally some sense.

Google book settlement and the future of books

Professor Pamela Samuelson's forthcoming Minnesota Law Review article on the Google books settlement is now available via SSRN. Abstract:

"The Google Book Search (GBS) initiative once promised to test the bounds of fair use, as the company started scanning millions of in-copyright books from the collections of major research libraries. The initial goal of this scanning was to make indexes of the books’ contents and to provide short snippets of book contents in response to pertinent search queries. The Authors Guild and five trade publishers sued Google in the fall of 2005 charging that this scanning activity was copyright infringement. Google defended by claiming fair use. Rather than litigating this important issue, however, the parties devised a radical plan to restructure the market for digital books, which was announced on October 28, 2008, by means of a class action settlement of the lawsuits. Approval of this settlement would give Google—and Google alone—a license to commercialize all out-of-print books and to make up to 20 per cent of their contents available in response to search queries (unless rights holders expressly forbade this)."

This article discusses the glowingly optimistic predictions about the future of books in cyberspace promulgated by proponents of the GBS settlement and contrasts them with six categories of serious reservations that have emerged about the settlement. These more pessimistic views of GBS are reflected in the hundreds objections and numerous amicus curiae briefs filed with the court responsible for determining whether to approve the settlement. GBS poses risks for publishers, academic authors and libraries, professional writers, and readers as well as for competition and innovation in several markets and for the cultural ecology of knowledge. Serious concerns have also been expressed about the GBS settlement as an abuse of the class action process because it usurps legislative prerogatives. The article considers what might happen to the future of books in cyberspace if the GBS deal is not approved and recommends that regardless of whether the GBS settlement is approved, a consortium of research libraries ought to develop a digital database of books from their collections that would enhance access to books without posing the many risks to the public interest that the GBS deal has created"

Conclusion:

"Google has made two bold moves with GBS. The first was to undertake the scanning of millions of books in order to index their contents, make snippets available to potential readers, and make nondisplay uses to refine its search technologies. The second was to settle the lawsuit brought against it charging the firm with copyright infringement so that Google could commercialize most of the books it had scanned. At first blush, this seems like a win-win-win, that is, a win for Google which would now be able to develop revenue models from which to recoup its investment in GBS, a win for authors and publishers who would enjoy a substantial share of the revenue stream generated from GBS books, and a win for the public which would have increased free access to books, as well as opportunities to have even greater access through subscriptions and purchases.
The second bold move has, however, proven to be far more controversial than the first. Even those who follow developments in the publishing industry closely have expressed reservations about it:

[W]as it ever reasonable to think that such a revolutionary, unprecedented pact, negotiated in secret over three years by people with loose claims of representation, concerning a wide range of stakeholders, both foreign and domestic, involving murky issues of copyright and the rapidly unfolding digital future, could be pushed through as a class action settlement within a period of months, in the teeth of a historic media industry transition?291

This Article has shown that although there are some reasons to be optimistic about the future of books in cyberspace if the GBS settlement is approved, there are even more reasons to be worried about the settlement and its consequences for competition and innovation down the line, as well as for sustained public access to knowledge, and to doubt that the bright promise proclaimed by GBS proponents is likely to be achieved.
The future of public access to the cultural heritage of humankind embodied in books is too important to leave in the hands of one company and one registry that will have a de facto monopoly over a huge corpus of digital books and rights in them.
Google has yet to accept that its creation of this substantial public good brings with it public trust responsibilities that go well beyond its corporate slogan about not being evil."

 Highly recommended. In fact if you want to get a comprehensive handle on the Google Book settlement, everything written by Prof. Samuelson on the subject is recommended. Here, here, here and here for example.

Judge rules movie industry not a cartel

There was another interesting development in the RealNetworks case against the movie industry last Friday when Judge Patel ruled that the industry was not a cartel.

"For years, RealNetworks has wanted to produce and sell a product called RealDVD that would enable the legal owners of DVD movies to copy their content onto a hard disk drive, in order that the original discs may stay protected like archival copies. Movie studios responded in September 2008 by suing Real, alleging that its technology intentionally circumvented their copy control system -- a circumvention that violated the US Digital Millennium Copyright Act. That led to an injunction barring any sale of RealDVD, which is still in force today.
Real then responded with a countersuit, blasting the movie studios with an allegation that they were leveraging the DMCA as a platform on which to build a kind of content cartel...

But Judge Marilyn Hall Patel ruled Friday that just because Real believed there was no need to purchase a license, did not prevent it from negotiating to purchase a license. Thus the movie studios could not have collectively prevented Real from making a copying mechanism possible, since the alternative of negotiation was there and has always been there."

The judge said:

"Any assertion by Real that the Studios' refusal to license the copying of DVDs caused an antitrust injury apart from the delay resulting from the injunctive relief is contradicted by Real's assertions that it believed no license was necessary."

ECHR: UK terror stop & search illegal

The European Court of Human Rights, in the case of Gillan and Quinton v. The United Kingdom (Application no. 4158/05) , has declared the blanket police stop and search powers, granted under the UK Terrorism Act 2000, to be in breach of article 8 of the European Convention on Human Rights (the right to respect for private and family life). Note as often with the ECHR database, the link may be transient but a search for 'Gillan' in the HUDOC search engine will bring up the decision.

"57.  The Court observes that although the length of time during which each applicant was stopped and search did not in either case exceed 30 minutes, during this period the applicants were entirely deprived of any freedom of movement. They were obliged to remain where they were and submit to the search and if they had refused they would have been liable to arrest, detention at a police station and criminal charges. This element of coercion is indicative of a deprivation of liberty within the meaning of Article 5 § 1 (see, for example, Foka v. Turkey, no. 28940/09, §§ 74-79, 24 June 2008). In the event, however, the Court is not required finally to determine this question in the light of its findings below in connection with Article 8 of the Convention...

65.  Each of the applicants was stopped by a police officer and obliged to submit to a search under section 44 of the 2000 Act... the Court considers that these searches constituted interferences with their right to respect for private life under Article 8. Such an interference is justified by the terms of paragraph 2 of Article 8 only if it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and is “necessary in a democratic society” in order to achieve the aim or aims (see, for example, Liberty and Others v. the United Kingdom, no. 58243/00, § 58, ECHR 2008-...)...

70.  No prior judicial authorisation was required for the availability of the power and the possibility of bringing proceedings in the County Court to determine whether the power had been properly and lawfully used was a wholly inadequate safeguard against misuse and arbitrariness. The ex post facto review of the exercise of the power by the County Court in any individual's case did not rectify the lack of legal certainty associated with the power. The applicants' own cases illustrated this point: once the House of Lords had rejected their complaints under the Convention, it was open to the County Court only to determine whether the officers were actually looking for terrorist articles and whether the applicants were obviously not terrorist suspects, a question to which a positive answer was virtually impossible. The removal of the “reasonable suspicion” requirement, or any other objective basis for the search, rendered the citizen extremely vulnerable to an arbitrary exercise of power, restrained only by the police officer's honesty to divulge what type of incriminating article he was looking for on the occasion in question. The lack of any practical and effective safeguards was compounded by the apparent breadth of the definition of “articles of a kind which could be used in connection with terrorism”. There was thus a real risk that the powers might be misused so as to regulate protest or to maintain public order, rather than to counter terrorism. This clearly had far-reaching consequences for civil liberties in the United Kingdom, particularly when, at the material time, the authorisation covered the whole of the Metropolitan Police District; had been continuously renewed every month for almost six years; and when there was no requirement that the authorisation be necessary or suitable, but only “expedient”, for preventing terrorism...

76.  The Court recalls its well established case-law that the words “in accordance with the law” require the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention and inherent in the object and purpose of Article 8. The law must thus be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual - if need be with appropriate advice - to regulate his conduct (S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, §§ 95 and 96, ECHR 2008-...).

77.  For domestic law to meet these requirements it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercis...

80.  The Court notes at the outset that the senior police officer referred to in section 44(4) of the Act is empowered to authorise any constable in uniform to stop and search a pedestrian in any area specified by him within his jurisdiction if he “considers it expedient for the prevention of acts of terrorism”. However, “expedient” means no more than “advantageous” or “helpful”. There is no requirement at the authorisation stage that the stop and search power be considered “necessary” and therefore no requirement of any assessment of the proportionality of the measure. The authorisation is subject to confirmation by the Secretary of State within 48 hours. The Secretary of State may not alter the geographical coverage of an authorisation and although he or she can refuse confirmation or substitute an earlier time of expiry, it appears that in practice this has never been done. Although the exercise of the powers of authorisation and confirmation is subject to judicial review, the width of the statutory powers is such that applicants face formidable obstacles in showing that any authorisation and confirmation are ultra vires or an abuse of power...

83.  Of still further concern is the breadth of the discretion conferred on the individual police officer. The officer is obliged, in carrying out the search, to comply with the terms of the Code. However, the Code governs essentially the mode in which the stop and search is carried out, rather than providing any restriction on the officer's decision to stop and search. That decision is, as the House of Lords made clear, one based exclusively on the “hunch” or “professional intuition” of the officer concerned (see paragraph 23 above). Not only is it unnecessary for him to demonstrate the existence of any reasonable suspicion; he is not required even subjectively to suspect anything about the person stopped and searched. The sole proviso is that the search must be for the purpose of looking for articles which could be used in connection with terrorism, a very wide category which could cover many articles commonly carried by people in the streets.  Provided the person concerned is stopped for the purpose of searching for such articles, the police officer does not even have to have grounds for suspecting the presence of such articles. As noted by Lord Brown in the House of Lords, the stop and search power provided for by section 44 “radically ... departs from our traditional understanding of the limits of police power” (see paragraph 23 above)...

85.  In the Court's view, there is a clear risk of arbitrariness in the grant of such a broad discretion to the police officer...

86.  The Government argue that safeguards against abuse are provided by the right of an individual to challenge a stop and search by way of judicial review or an action in damages. But the limitations of both actions are clearly demonstrated by the present case. In particular, in the absence of any obligation on the part of the officer to show a reasonable suspicion, it is likely to be difficult if not impossible to prove that the power was improperly exercised.

87.  In conclusion, the Court considers that the powers of authorisation and confirmation as well as those of stop and search under sections 44 and 45 of the 2000 Act are neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. They are not, therefore, “in accordance with the law” and it follows that there has been a violation of Article 8 of the Convention."

The judgment is worth reading in full and constitutes another significant defeat to the UK government's surveillance state "solution" to the not insignificant problem of terrorism.

Update: Nice commentary from Hawtalk.

"In summary, the Home Office's human rights team is not very good because human rights are not its main function. The Home Office exists to support immigration, policing and national security – all the organisations that need powers to invade privacy  - it needs privacy protection like it needs a hole in the head.
It is therefore  not surprising that Home Office legislation provides for wide ranging powers to help "their agencies" and the bare minimum when drafting provisions that protect individuals from misuse of these powers."

Terrorball

A blast of common sensefrom Prof Paul Campos in the WSJ on governments' responses to terrorism.

"The world's greatest nation seems bent on subjecting itself to a similarly humiliating defeat, by playing a game that could be called Terrorball. The first two rules of Terrorball are:
(1) The game lasts as long as there are terrorists who want to harm Americans; and
(2) If terrorists should manage to kill or injure or seriously frighten any of us, they win...

As to the question of what the government should do rather than keep playing Terrorball, the answer is simple: stop treating Americans like idiots and cowards.
It might be unrealistic to expect the average citizen to have a nuanced grasp of statistically based risk analysis, but there is nothing nuanced about two basic facts:
(1) America is a country of 310 million people, in which thousands of horrible things happen every single day; and
(2) The chances that one of those horrible things will be that you're subjected to a terrorist attack can, for all practical purposes, be calculated as zero."

Recommended.

Landmark ECHR ruling on human trafficking

From the ECHR blog comes news of an important ruling on human trafficking.

"Yesterday, the European Court passed a landmark judgment on human trafficking in the case of Rantsev v. Cyprus and Russia. The case concerned the death of Oxana Rantseva and was brought by her father. Oxana moved from Russia to Cyprus and started to work as a 'cabaret artiste', as one of thousands of women coming to Cyprus. It was widely known that these 'artistes' were in practice mostly working as prostitutes. Within a few weeks she left the place where she worked, but was traced by her employer who brought her to the police with the aim of haiving her detained and extradited, so that he could employ someone else. The police noted that she was not illegally staying in Cyprus, but had a work permit and made her go back with her employer. Later that night, she tried to escape from the apartment where her employer was keeping her and in doing so fell of a balcony and died. In spite of the mysterious circumstances of her death, the context of possible human trafficking was never looked into by the authorities.

The Court found, unanimously, that trafficking in human beings, although not epxlicitly mentioned in the ECHR, fell within the scope of Article 4 (prohibition of slavery, servitude and forced labour). This is a rarely used Convention provision, on which there is only one earlier Court judgment in the context of human trafficking: the case of Siliadin v. France (Appl.no. 73316/01) of 2005, in which the Court looked into a situation of girl from Africa held in servitude as a housemaid in France...

The judgment not only represents a milestone in the combat against human trafficking, but more generally elucidates state obligations in the battle against transational crime. It is commendable that the Court through its verdict offers new yardsticks to assess state performance in this respect.

To read the report by Interights on the case click here. This NGO also submitted a third pary submission to the Court, which can be read here. Even the Wall Street Journal reports on the case; click here."

The backfiring of the surveillance state

Glenn Greenwald: The backfiring of the surveillance state

"Every debate over expanded government surveillance power is invariably framed as one of "security v. privacy and civil liberties" -- as though it's a given that increasing the Government's surveillance authorities will "make us safer."  But it has long been clear that the opposite is true.  As numerous experts (such as Rep. Rush Holt) have attempted, with futility, to explain, expanding the scope of raw intelligence data collected by our national security agencies invariably impedes rather than bolsters efforts to detect terrorist plots.  This is true for two reasons:  (1) eliminating strict content limits on what can be surveilled (along with enforcement safeguards, such as judicial warrants) means that government agents spend substantial time scrutinizing and sorting through communications and other information that have nothing to do with terrorism; and (2) increasing the quantity of what is collected makes it more difficult to find information relevant to actual terrorism plots."

Recommended.

Blackboard v Desire2Learn settled for good?

Just before Christmas Desire2Learn announced that all their outstanding legal disputes over the Blackboard patent had finally been settled.

"We just issued a press release that I'm sure will interest you.
We're delighted to announce this news of a resolution to all litigation between Blackboard Inc. and Desire2Learn Incorporated and its subsidiary D2L Ltd. This is in the best interest of our clients, the educational community and ourselves as we continue to serve you.
After several years of litigation, it's now time to concentrate on what we do best: software and services that help you in your mission of teaching and learning.
We've been encouraged by the support we've received throughout the past few years, from friends, strangers, partners, and the market in general. But none can match the support we've received from you, our clients, who have stood by us at every juncture. I'm also thankful for our awesome staff who have stayed focused on delivering on their objectives and have shown incredible resolve and innovation. The strongest steel is forged in the hottest of fires.
Our mission has never changed: To improve human potential globally by providing the most innovative technology for teaching and learning. Our vision has remained, as well, to be the global leader in providing eLearning solutions to help you, our clients, achieve your vision of transforming education.
We're truly appreciative of the ongoing support that you have provided throughout this process. We remain committed to collaborating with you, and know this agreement will enable us to continue to place you and education first and foremost.
We're financially strong and remain an independent company. We are increasing our efforts to offer new and innovative product releases and services to enhance learning and reduce the barriers to education for all. We are already excited about the upcoming launch of version 9.0 of our Learning Environment.
Consistent with our mission and vision, it's time for us to put the past behind us, and look to the future. As a result, we'll be taking down our patent blog tomorrow.
As is standard, the terms of the settlement are confidential. If, however, you have questions, please contact Diane Lank (Diane.Lank@Desire2Learn.com), our General Counsel, or myself.
With warm wishes for this holiday season, and to an even better 2010 and beyond, I thank you for your tremendous support.

John Baker
President and CEO
Desire2Learn Incorporated"

War abroad testing ground for surveillance state apparatus at home

Welcome Home War! is a terrific article by Alfred McCoy on the development, testing and construction of the architecture of the surveillance state, which should be put in front of Gordon Brown the next time he thinks of deploying digital strip search machines.

"In his approach to National Security Agency surveillance, as well as CIA renditions, drone assassinations, and military detention, President Obama has to a surprising extent embraced the expanded executive powers championed by his conservative predecessor, George W. Bush. This bipartisan affirmation of the imperial executive could "reverberate for generations," warns Jack Balkin, a specialist on First Amendment freedoms at Yale Law School. And consider these but some of the early fruits from the hybrid seeds that the Global War on Terror has planted on American soil. Yet surprisingly few Americans seem aware of the toll that this already endless war has taken on our civil liberties.
Don't be too surprised, then, when, in the midst of some future crisis, advanced surveillance methods and other techniques developed in our recent counterinsurgency wars migrate from Baghdad, Falluja, and Kandahar to your hometown or urban neighborhood. And don't ever claim that nobody told you this could happen—at least not if you care to read on.
Think of our counterinsurgency wars abroad as so many living laboratories for the undermining of a democratic society at home, a process historians of such American wars can tell you has been going on for a long, long time. Counterintelligence innovations like centralized data, covert penetration, and disinformation developed during the Army's first protracted pacification campaign in a foreign land—the Philippines from 1898 to 1913—were repatriated to the United States during World War I, becoming the blueprint for an invasive internal security apparatus that persisted for the next half century...

Every American knows that we are supposedly fighting elsewhere to defend democracy here at home. Yet the crusade for democracy abroad, largely unsuccessful in its own right, has proven remarkably effective in building a technological template that could be just a few tweaks away from creating a domestic surveillance state—with omnipresent cameras, deep data-mining, nano-second biometric identification, and drone aircraft patrolling "the homeland."...

Sometime in 2002, President Bush gave the NSA secret, illegal orders to monitor private communications through the nation's telephone companies and its private financial transactions through SWIFT, an international bank clearinghouse... Congress quickly capitulated, first legalizing this illegal executive program and then granting cooperating phone companies immunity from civil suits...Now, for example, thanks to a top-secret NSA database called "Pinwale," analysts routinely scan countless "millions" of domestic electronic communications without much regard for whether they came from foreign or domestic sources.

Starting in 2004, the FBI launched an Investigative Data Warehouse as a "centralized repository for... counterterrorism." Within two years, it contained 659 million individual records... By 2009, when digital rights advocates sued for full disclosure, the database had already grown to over a billion documents.
And did this sacrifice of civil liberties make the United States a safer place? In July 2009, after a careful review of the electronic surveillance in these years, the inspectors general of the Defense Department, the Justice Department, the CIA, the NSA, and the Office of National Intelligence issued a report sharply critical of these secret efforts. Despite George W. Bush's claims that massive electronic surveillance had "helped prevent attacks," these auditors could not find any "specific instances" of this, concluding such surveillance had "generally played a limited role in the F.B.I.'s overall counterterrorism efforts.""

Read the article in full at Mother Jones.

Compulsory Licensing: Evidence from the Trading with the Enemy Act

A couple of Stanford academics have done some really interesting empirical research on the effects of compulsory licencing. Petra Moser and Alessandra Voena concluded that compulsory licensing increased domestic invention by at least 20 percent.Abstract:

"Compulsory licensing allows firms in developing countries to produce foreign-owned inventions without the consent of foreign patent owners. This paper uses an exogenous event of compulsory licensing after World War I under the Trading with the Enemy Act to examine the long run effects of compulsory licensing on domestic invention. Difference-in-differences analyses of nearly 200,000 chemical inventions suggest that compulsory licensing increased domestic invention by at least 20 percent."

Dilbert on value of IP

I really liked this Dilbert strip this week

UK privacy concerns impede strip search machines

The Washington Post has a nice article on the UK deployment of strip search machines at airports, UK privacy concerns likely to impede body scanners.

"Ian Dowty, legal adviser to Action on Rights for Children, said he believes it would be a criminal offense to operate the scanners or to direct anyone to operate them if they are used to produce images of children under the age of 18.
"If anything produces an indecent image of anyone under 18, that is unlawful and is in fact a criminal offense," he said. "As we've seen on the Internet, these machines clearly show genitalia, that in our view must result in an indecent image by any definition."
He said any new security apparatus must comply with British law as set by Parliament and that it is up to the legislature to consider whether to change the law to allow the new generation of full body scanners to operate...

Simon Davies, director of Privacy International... said that even if Brown persuades Parliament to modify British law to make the scanners acceptable that they would still be in violation of the European Convention on Human Rights, which would take precedence in this case."

Government by fear

Gary Younge really captures the essence of the war on terror in his piece in yesterday's Guardian.

"So there was no ticking time bomb. No urgent need ever arose to torture anybody who was withholding crucial details, so that civilisation as we know it could be saved in the nick of time. No wires had to be tapped, special prisons erected or international accords violated. No innocent people had to be grabbed off the street in their home country, transported across the globe and waterboarded. Drones, daisy-cutters, invasions, occupations were, it has transpired, not necessary.
Indeed, when it actually came down to it, to forestall a near-calamitous terrorist atrocity in the US the authorities didn't even have to go in search of information or informants. The alleged terrorist's father came to the US embassy in Nigeria of his own free will and warned them that his son, Umar Farouk Abdulmutallab, had disappeared and could be in the company of Yemeni terrorists...

To brand this near miss a "systemic failure", as Barack Obama has done, is both true and inadequate. It reduces the moral vacuity, political malevolence and enduring strategic recklessness that has been the enduring response to the 9/11 attacks to a question of managerial competence...

To galvanise the nation for war abroad and sedate it for repression at home, the previous administration constructed a terror threat that was ubiquitous in character, apocalyptic in scale and imminent in nature. Only then could they counterpose human rights against security as though they were not only contradictory but mutually exclusive." 

Gordon Brown's latest knee jerk reaction to the failed plane bomber - the promised widespread deployment of £100k digital strip search machines (they are not "body scanners") at all airports - is a clear indication that the stupidity at the heart of policymaking on this has not gone away.  And don't look to the opposition parties to change this - even the Liberal Democrat spokesman was complaining that the reason the latest bomber slipped past security was that the government had not deployed the strip search machines fast enough.

Well it could well be that the paranoia surrounding child protection is now going to clash with the paranoia surrounding terrorism as civil liberties groups have pointed out that the strip search machines breach child protection laws which ban the creation of indecent images of children. The government would seem to be nicely hoist by their own scaremongering pertard.

Nationalise Google books?

Robert Darnton in the New York Review of Books suggests that one way out of the Google books situation would be to nationalise Google books. I can't see that idea going down too well in the land of the free.

"The most ambitious solution would transform Google's digital database into a truly public library. That, of course, would require an act of Congress, one that would make a decisive break with the American habit of determining public issues by private lawsuit. The legislation would have to settle ancillary problems—how to adjust copyright, deal with orphan books, and compensate Google for its investment in digitizing—but it would have the advantage of clearing up a messy legal landscape and of giving the American people what they deserve: a national digital library equal to the needs of the twenty-first century. But it is not clear how Google would react to such a buyout.
If state intervention is deemed to go too far against the American grain, a minimal solution could be devised for the private sector. Congress would have to intervene with legislation to protect the digitization of orphan works from lawsuits, but it would not need to appropriate funds. Instead, funding could come from a coalition of foundations. The digitizing, open-access distribution, and preservation of orphan works could be done by a nonprofit organization such as the Internet Archive, a nonprofit group that was built as a digital library of texts, images, and archived Web pages. In order to avoid conflict with interests in the current commercial market, the database would include only books in the public domain and orphan works. Its time span would increase as copyrights expired, and it could include an opt-in provision for rightsholders of books that are in copyright but out of print.
The work need not be done in haste. At the rate of a million books a year, we would have a great library, free and accessible to everyone, within a decade. And the job would be done right, with none of the missing pages, botched images, faulty editions, omitted artwork, censoring, and misconceived cataloging that mar Google's enterprise. Bibliographers—who appear to play little or no part in Google's enterprise—would direct operations along with computer engineers. Librarians would cooperate with both in order to assure the preservation of the books, another weak point in GBS, because Google is not committed to maintaining its corpus, and digitized texts easily degrade or become inaccessible."

Remedy for groundless threats of copyright infringement proceedings

Lord Lucas has been pondering the Digital Economy Bill and suggested an interesting amendment, a remedy for groundless copyright threats no less:

"

After Clause 8

LORD LUCAS

Insert the following new Clause—

"Remedy for groundless threats of copyright infringement proceedings

(1)	The Copyright, Designs and Patents Act 1988 is amended as follows.

(2)	After section 169 insert—

"169A.

Remedy for groundless threats of infringement proceedings

(1)	Where a person threatens another person with proceedings for infringement of copyright, a person aggrieved by the threats may bring an action against him claiming—

(a)	a declaration to the effect that the threats are unjustifiable;

(b)	an injunction against the continuance of the threats;

(c)	damages in respect of any loss which he has sustained by the threats.

(2)

If the claimant proves that the threats were made and that he is a person aggrieved by them, he is entitled to the relief claimed unless the defendant shows that the acts in respect of which proceedings were threatened did constitute, or if done would have constituted, an infringement of the copyright concerned.

(3)	Mere notification that work is protected by copyright does not constitute a threat of proceedings for the purposes of this section.

(4)	A copyright infringement report within the meaning of section 124A(3) of the Communications Act 2003, if notified to a subscriber under section 124A(4) of the Communications Act 2003, does constitute a threat of proceedings for the purposes of this section.""

Expect the entertainment industry lobbyists to be having a quiet word with Peter Mandelson about ensuring that one doesn't see the light of day.

Anopticon

From the ever terrific EDRI-gram, Italy: The Anopticon project - putting surveillance back in its place.

"Nowadays, CCTVs are the practical implementation of the "Panopticon", theorised in 1791 by Jeremy Bentham as the "ideal prison", one that keeps people in place by using their natural fear of being surveilled.
The Anopticon project is a reaction to the huge rise in CCTVs installations in Italian cities. Information on CCTVs - where they are, what they point at, which area is being surveilled - is collected by members of the project and put online, publicly accessible via the "Big Brother Viewer". The project has already concluded that a large part of CCTVs does not provide the "information notice" required by Legislative Decree 196/2003 (which implements the Data Protection Directive in Italy).
The project started in Venice, but it soon spread to other cities including Padova, Foggia, Urbino and Solero (Alessandria). More and more "anopticon groups" are born, to contribute to the Big Brother map. Anyone from anywhere can join in.
The Anopticon project has also launched the "Denounce illegal CCTVs" campaign: every surveillance device that does not respect Italian data protection law (including the need for an "information notice") will be signalled to the Italian Data Protection Authority, without excluding formal complaints for the more powerful and invasive surveillance systems such as the "Argos" and "Hydra" systems being implemented in Venice which are able to automatically track the movement of boats and people.
The Anopticon project - Big Brother Viewer
http://www.tramaci.org/anopticon"

Hmmm. Legislative Decree 196/2003? I wonder what the UK equivalent might be? I also see an opportunity for a Tony H. type mapping and consultation project here.

Ohio Court: police need warrant for cell phone search

Here's an interesting development - according to the Washington Post the Ohio Supreme Court has held that police officers must obtain a warrant before scanning the contents of a suspect's mobile phone.

"The Ohio Supreme Court said Tuesday police officers must obtain a search warrant before scouring the contents of a suspect's cell phone, unless their safety is in danger.
The American Civil Liberties Union of Ohio described the ruling as a landmark case."

Landmark case definitely. I don't know of any others that have come to a similar conclusion and it was a close call with a 4 to 3 majority ruling according to the Ohio court's own website.

"(Dec. 15, 2009) The Supreme Court of Ohio ruled today that the Fourth Amendment prohibition against unreasonable searches and seizures requires police to obtain a warrant before searching data stored in a cell phone that has been seized from its owner in the course of a lawful arrest when the search is not necessary to protect the safety of law enforcement officers and there are no exigent circumstances.
The Court’s 4-3 majority decision, which reversed a ruling of the 2^nd District Court of Appeals, was authored by Justice Judith Ann Lanzinger.
Antwaun Smith was arrested on drug-related charges after responding to a call to his cell phone that had been placed by a crack cocaine user acting as a police informant. During the arrest, police searched Smith and found a cell phone on his person.  The arresting officer put the cell phone in his pocket and placed Smith in a cruiser, then searched the scene for evidence. Later, police recovered bags containing crack cocaine at the scene. Officers subsequently searched the contents of Smith’s phone without a search warrant or his consent. They discovered call records and stored numbers that confirmed prior calls between Smith’s phone and the informant’s phone number...

...United States v. Finley... held that a cell phone is similar to a closed container found on an arrestee’s person and therefore subject to search by an arresting officer without a warrant...

...United States v. Park, which held that a cell phone is not a “container” as that term is used in prior Fourth Amendment cases, and that a warrantless police search of data stored in a defendant’s cell phone was unconstitutional...

In today’s decision, Justice Lanzinger wrote: “Smith bases his challenge on the Fourth Amendment to the United States Constitution, which provides protection against unreasonable searches and seizures. It is well established that searches conducted without a warrant are per se unreasonable, subject to certain ‘jealously and carefully drawn’ exceptions.’  Jones v. United States (1958).  ... The exception that the state relies on is the search incident to arrest, which allows officers to conduct a search that includes an arrestee’s person and the area within the arrestee’s immediate control. ... This exception ‘derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations.’ Arizona v. Gant (2009). ... But when the interests in officer safety and evidence preservation are minimized, the court has held that this exception no longer applies.”....

In this case, Justice Lanzinger wrote, “The state argues that we should follow Finley and affirm the court of appeals because the trial court was correct in its conclusion that a cell phone is akin to a closed container and is thus subject to search upon a lawful arrest. We do not agree with this comparison, which ignores the unique nature of cell phones. Objects falling under the banner of ‘closed container’ have traditionally been physical objects capable of holding other physical objects.  Indeed, the United States Supreme Court has stated that in this situation, ‘container’ means ‘any object capable of holding another object.’ New York v. Belton (1981).”   ...

“Although cell phones cannot be equated with laptop computers, their ability to store large amounts of private data gives their users a reasonable and justifiable expectation of a higher level of privacy in the information they contain,” wrote Justice Lanzinger.  “Once the cell phone is in police custody, the state has satisfied its immediate interest in collecting and preserving evidence and can take preventive steps to ensure that the data found on the phone is neither lost nor erased. But because a person has a high expectation of privacy in a cell phone’s contents, police must then obtain a warrant before intruding into the phone’s contents.”
“ ... We hold that the warrantless search of data within a cell phone seized incident to a lawful arrest is prohibited by the Fourth Amendment when the search is unnecessary for the safety of law-enforcement officers and there are no exigent circumstances. Because the state failed to show that either of these exceptions to the warrant requirement applied, the search of Smith’s cell phone was improper and the trial court was required to exclude from evidence the call records and phone numbers taken from the cell phone. We accordingly reverse the judgment of the court of appeals and remand to the trial court for proceedings consistent with this opinion.”
Justice Lanzinger’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer and Maureen O’Connor."

The dissenting opinions whilst accepting the notion of lots of private data on mobile phones nevertheless felt that the specific search at issue here "resembles police officers’ search of a traditional address book found on the person of an arrestee during a search incident to arrest", something which is allowable under the 4th amendment. Justice Cupp, dissenting said:

“The majority bases its broad holdings on its estimation of the possible capabilities of other cell phones and computers. But here only the address book and call records were admitted into evidence.  The issue of a more in-depth warrantless search of ‘data within a cell phone’ is not before us.  I would leave for another day, to a case that factually raises the issue directly, the question of whether police may perform more in-depth searches of information on cell phones that have capabilities akin to a computer.”

It is good to see a supreme court beginning to tackle such cases and getting a handle on a half decent analysis of new technologies. The full decision is available here.

Court bans Pystar's Apple clone sales permanently

From ComputerWorld:
"A federal judge yesterday officially banned Mac clone maker Psystar from selling computers with Apple's Leopard or Snow Leopard operating systems, effectively putting an end to a 17-month-old lawsuit...

The injunction, however, is more or less moot, as Psystar shut down its Mac clone business earlier this month when it struck a settlement deal with Apple that requires it to pay nearly $2.7 million in damages if it loses appeals to the next level."

Apologies for the formatting - I'm trying to post this through Internet Explorer, since I'm working at someone else's machine and IE and blogger don't seem to get along too well.

Solove on Privacy

Given the rash of articles on Google, Facebook and privacy this week, it would be a good time for anyone who really wants to understand the issue in the context of the information age to read some of Daniel Solove's work, in particular two terrific articles 'I've Got Nothing to Hide' and Other Misunderstandings of Privacy,  and A Taxonomy of Privacy and his books The Digital Person and Understanding Privacy.

ACTA timeline by Michael Geist

Michael Geist has very helpfully put together a dynamic ACTA timeline and committed to keeping it up to date. (Embedded below)

The ACTA Timeline on Dipity.

Cory on audiobooks

Cory Doctorow is fed up with DRM on audiobooks.

"
I probably could have “pirated” the same audiobooks more quickly—after all, it's not hard to find cracked Audible titles on the Internet. This is why I can't understand why publishers or writers opt for DRM. It clearly doesn't stop real pirates from copying, and it locks good customers into the DRM vendor's ecosystem. I wouldn't sell my books through a bookseller who demanded readers only enjoy them on a chair from Wal-Mart; why would I sell my audiobooks on terms that insist my listeners only use devices approved by a DRM vendor?
So, RHA and I went to Audible and politely asked them to sell Little Brother without DRM. They turned us down flat. And because Audible is the only retailer who can sell on iTunes, that closed the door on the largest distribution channel in the world for audiobooks.
For my next book, Makers, we tried again. This time Audible agreed to carry the title without DRM. Hooray! Except now there was a new problem: Apple refused to allow DRM-free audiobooks in the Apple Store—yes, the same Apple that claims to hate DRM. Okay, we thought, we'll just sell direct through Audible, at least it's a relatively painless download process, right? Not quite. It turns out that buying an audiobook from Audible requires a long end-user license agreement (EULA) that bars users from moving their Audible books to any unauthorized device or converting them to other formats. Instead of DRM, they accomplish the lock-in with a contract."

Mischief managed on data protection

In Harry Potter speak, mischief media managed: the government officials who briefed the Times columnist David Aranovitch, ahead of Justice Minister Michael Wills disingenous speech on data sharing, will be giving themselves a pat on the back over his rant criticising the authors of the Joseph Rowntree Reform Trust report The Database State.

The minister's speech and the Times article are so full of holes and dogma that it's hard to know where to start, so instead I will quote from William Heath's clinical dissection of the article:

"You’ve managed to work out Michael WiIls works for the government. But you’ve eaten up his chocolate-covered waffle without a sceptical glance.
Mr Wills also accepts that government must take blame for the poor level of debate because it has too often been “overly defensive and dismissive of criticism. Government believes it is acting benignly and legally and has not adequately recognised the fears of those who believe this is not the case.”
This is tripe. The poor level of debate on technology in public services isn’t because the government hasn’t been shoutey enough. It’s because the government is too assertive and indulges in groupthink, failing to take other views into account. At a shallow level they have a good intention, but they fail to realise the less desirable consequences of their ill-thought-out implementation.
I wouldn’t say there’s a deep underlying malevolence, but the poor manner in which they engage with others who have a different good intention is tantamount to malevolence. Your article illustrates this very well.
Central to this is their documented failure to listen effectively to the views of scientists (not that I claim to be one, but my co-authors are) and also of service users and front-line practitioners. This is why NHS CfH has failed, as even the government now admits, and why the ID Scheme and ContactPoint will fail."

In addition I'd can't help extracting one small sample from the minister's speech:

"ContactPoint was developed in response to a key recommendation of Lord Laming's inquiry into the tragic death of Victoria Climbié: to improve the exchange of information between different agencies working with children. But I am aware that ContactPoint has attracted a lot of interest and given rise to some concerns – and some misunderstandings. So Delyth Morgan and I want to hear views about ContactPoint from users and practitioners and explore these in light of the facts about the directory and feedback received from early adopters."

The UK government has been informed repeatedly and in great detail by world renowned security, information systems and child protection specialists that you cannot secure a database with the personal details of over 10 million people, when more than a third of a million people need to have routine access to that database as a regular part of their jobs.  Yet they are still talking about ContactPoint attracting "a lot of interest" and giving "rise to some concerns" and wanting to "hear views about ContactPoint".  This government has made such an art of collecting views on multiple policy areas, systematically ignoring them and dogmatically and blatantly continuing to pursue their ill-informed agenda, that it should not be a surprise that they are rolling out the same claptrap again.  It must be seriously annoying, however, for professionals who have invested a lot of effort in engaging and informing the government of the realities of modern technologies, to be subjected to the kind of attacks we hear from ministers and have seen in the Times this morning.  I'm annoyed and I wasn't even involved in writing the Rowntree report. Like William Heath I don't believe there is any deep underlying malevolence on the part of the government - most of them originally got into politics with the aim of helping people and making a difference.  But there comes a point at which the almost theological devotion to being 'on message', and the cultivation of blind ignorance in shutting out any information that contradicts that message, comes to have a malevolent effect.  Malevolence, intended or otherwise, becomes an emergent property of the system.

Recording industry sued for $billions in copyright infringement suit

According to Michael Geist the Candian recording industry in facing a lawsuit for copyright infringement that could end up costing them billions of dollars.

"Chet Baker was a leading jazz musician in the 1950s, playing trumpet and providing vocals. Baker died in 1988, yet he is about to add a new claim to fame as the lead plaintiff in possibly the largest copyright infringement case in Canadian history. His estate, which still owns the copyright in more than 50 of his works, is part of a massive class-action lawsuit that has been underway for the past year.
The infringer has effectively already admitted owing at least $50 million and the full claim could exceed $60 billion. If the dollars don't shock, the target of the lawsuit undoubtedly will: The defendants in the case are Warner Music Canada, Sony BMG Music Canada, EMI Music Canada, and Universal Music Canada, the four primary members of the Canadian Recording Industry Association...

The class action seeks the option of statutory damages for each infringement. At $20,000 per infringement, potential liability exceeds $60 billion.
These numbers may sound outrageous, yet they are based on the same rules that led the recording industry to claim a single file sharer is liable for millions in damages.
After years of claiming Canadian consumers disrespect copyright, the irony of having the recording industry face a massive lawsuit will not be lost on anyone, least of all the artists still waiting to be paid."

Latest Microsoft dispute in China

A friend of mine in China tells me that this court case involving Microsoft and a dispute over fonts, which I haven't paid a lot of attention to, has been a really big deal over there.  Apparently it's been all over the media, court hearings televised live and watched by millions and Microsoft have not been faring too well in the PR stakes as a result.

"The US software giant must not sell versions of Windows XP, 2003, 2000 or 98 software in the Asian super-economy after a Beijing court ruled the products include Chinese fonts designed by a local company.
The court said Microsoft had violated its licensing agreement with Zhongyi Electronic, which designs character fonts.
Microsoft said it plans to appeal the ruling, adding it "respects intellectual property rights" and uses the intellectual property of third parties "only when we have a legitimate right to do so"."

Said friend also tells me that the average woman on the Bejing omnibus has no concept of the notion of people being able to "own" intellectual property.  They have shared ideas for millenia - that's how the world gets better - copy, refine, re-mix, rework, improve.  It doesn't exactly harmonise then with Microsoft allegedly breaching local intellectual property regulations but she reckons they are being lambasted by the public more for being a global US corporation than for the specifics of their transgressions.  As I said I hadn't paid much attention to it so it was interesting to get a local perspective.

My keynote at and some thoughts about WIPO

I'm the lucky beneficiary of some unexpected space in my diary today due to a last minute cancellation of a meeting, so I've finally got around sticking the slides from my WIPO keynote a couple of weeks ago up on Slideshare (embedded below).

Wipo Key Role Of Tutors

View more presentations from rcorrigan.

I said at the time that I discovered some amazingly talented and dedicated people working within WIPO and likewise amongst their tutors from around the world. In the thick of all the complex politics and bureaucracy of the UN, these people have a really deep understanding of the issues and the importance of balance in international IP policy; and it was really interesting to hear, from the inside, of the energy underpinning the development agenda.

I should also thank Altaye Tedla and Caroline Storan at the WIPO academy who were very hospitable and do a tremendous job supporting 26,000 students all round the world.

Amongst the highlights of the workshop for me, in addition to the obvious opportunity to discuss IP policy with some deeply thoughtful and very well informed professionals from all across the globe - spanning the whole spectrum from IP expansionists to IP reductionists -  were Esteban Burrone's talk on evolving developments on the WIPO development agenda and Anotole Krattiger's session on the IP Handbook of Best Practices.

One of the biggest problems faced by the WIPO academy, their tutors and students is the issue of lack of access to educational resources:

• Teaching resources
• Case studies
• Articles
• Books
• Teaching activities
• Region/jurisdiction specific resources/tools
• Library resources
• Online databases
• Primary legal materials

The WIPO academy produces generic courses which are taught globally but then the tutors struggle to get access to resources to be able to tailor the materials to the specific needs of their students across a wide range of jurisdictions for example.  Although they are working hard to find some compromise the WIPO library can't facilitate tutors' access to resources, as we do for our tutors at the Open University, because of copyright law and licensing restrictions, since the tutors and students are resident in so many different areas.

The irony of WIPO's mission to educate people about intellectual property being hindered by the state of copyright law and publishers' licensing restrictions was quite stark.

So it was good to learn, therefore, of a new, rich, open IP resource which I hadn't previously been aware of, the IP Handbook of Best Practices, which was released under a creative commons attribution share alike licence.  It's a terrific piece of work put together by Professor Krattiger with the help of over 200 experts and I'd encourage you to go and explore the website which is really well organised - not just restricted to the handbook but providing links to other publicly available materials such as IP database and search tools too.

Prof. Krattiger is very much the pragmatist, believing whatever the state of affairs in the battle between IP expansionists and reductionists and whatever the prevailing wind on the state of balance in the system, we have to make it work through making deals in the marketplace. If the rules don't suit you, draw up a contract that does and start negotiating hard, is his primary advice - we need to stop worrying about IP regulations and start focussing on IP management.  He advocates a high standard of ethical behaviour and professionalism in licencing neogtiations, particularly important in the agriculture and health sectors he has specialised in for many years.  Ethical stewartship of intellectual property is really important in the management of our knowledge commons.  Presumably the thinking is that with a wide portfolio of working deals in the market then the regulations will follow on.

I couldn't agree more that we need ethical stewartship of IP but I'm not sure there is a lot of evidence for this in the IP marketplace, which tends to be amoral.  I don't necessarily share Prof Krattiger's optimism that the intellectual property landscape will be rebalanced equitably through the market but we did agree on one aspect of the confusion surrounding patents.  Very often in public discussions about patents two things get confused

• access and
  
• incentive to innovate

He believes that if we disentangle the strategies for access to Aids drugs in Africa, for example, from strategies to encourage innovations in the development of further improved Aids treatments, we will make more progress, on access and development of improved drugs, much more quickly.  The system has not prevented the development of treatments - there are AIDs drugs but the problem in poorer countries is the lack of access to these drugs that could help the condition of millions of Aids sufferers.

It is a general feature of public debates on intellectual property that crucial and separate issues get confused in this way, sometimes deliberately to shape the agenda and sometimes through simple confusion.  But as long as the intellectual property regulations themselves continue to hinder access to knowledge in this and other areas, and the debate continues to get framed and disproportionately influenced by commercial institutions and lobbyists with a vested interest in particular outcomes, then the confusion is not going to get cleared up any time soon.

Thanks again to Altaye Tedla, Caroline Storan, Glyn Martin and Mrs Gao Hang for their hospitality and all the work they put into making the workshop such a success; and thanks to all the delegates for making an outsider so welcome (and for all your positive feedback).