"Facebook this week was awarded a patent pertaining to streaming "feed" technology, more specifically "dynamically providing a news feed about a user of a social network," complementing another patent filing that has been published but not yet approved.
The implications for this, as AllFacebook.com pointed out earlier on Thursday, are far-flung: Facebook may choose to pursue action against other social-media sites that potentially violate this patent. Twitter, as AllFacebook points out, is effectively one giant news feed, to the extent that it clearly has influenced some of the changes that Facebook made to its own feed technology."
How can we claim to encourage innovation with patents when this kind of thing gets through?
Update: Andres Guadamuz has taken the trouble to go through the patent and confirms it should not have been granted.
"Microsoft has managed to do what a roomful of secretive, three-letter government agencies have wanted to do for years: get the whistleblowing, government-document sharing site Cryptome shut down.
Microsoft dropped a DMCA notice alleging copyright infringement on Cryptome’s proprietor John Young on Tuesday after he posted a Microsoft surveillance compliance document that the company gives to law enforcement agents seeking information on Microsoft users. Young filed a counterclaim on Wednesday — arguing he had a fair use to publishing the document, a full day before the Thursday deadline set by his hosting provider, Network Solutions.
Regardless, Cryptome was shut down by Network Solutions and its domain name locked on Wednesday — shuttering a site that thumbed its nose at the government since 1996 — posting thousands of documents that the feds would prefer never saw the light of day.
Microsoft did not return a call for comment by press time.
The 22-page document (.pdf) contains no trade secrets, but will tell Microsoft users things they didn’t know."
Lawyers accidentally courting bad publicity again presumably?
Update: Someone in Microsoft with the requisite clout has seen and imposed some sense. Network Solutions emailed John Young:
"Date: Thu, 25 Feb 2010 12:22:59 -0500
From: "DMCA"
To: "John Young"
We would like to notify you that Microsoft has contacted us regarding www.cryptome.org. Microsoft has withdrawn their DMCA complaint. As a result www.cryptome.org has been reactivated and this matter has been closed. Please allow time for the reactivation to propagate throughout the various servers around the world.
Linda L. Larsen, Designated Agent
Network Solutions, LLC
Telephone: 703.668.5615
Facsimile: 703.668.5959
Email: dmca[at]networksolutions.com"
Peter Murray-Rust, University of Cambridge (UK), Cameron Neylon, STFC (UK), Rufus Pollock, Open Knowledge Foundation and University of Cambridge (UK), John Wilbanks, Science Commons have just published the Panton Principles for open data in science.
"
Science is based on building on, reusing and openly criticising the published body of scientific knowledge.
For science to effectively function, and for society to reap the full benefits from scientific endeavours, it is crucial that science data be made open.
By open data in science we mean that it is freely available on the public internet permitting any user to download, copy, analyse, re-process, pass them to software or use them for any other purpose without financial, legal, or technical barriers other than those inseparable from gaining access to the internet itself. To this end data related to published science should be explicitly placed in the public domain. Formally, we recommend adopting and acting on the following principles:
Where data or collections of data are published it is critical that they be published with a clear and explicit statement of the wishes and expectations of the publishers with respect to re-use and re-purposing of individual data elements, the whole data collection, and subsets of the collection. This statement should be precise, irrevocable, and based on an appropriate and recognized legal statement in the form of a waiver or license. When publishing data make an explicit and robust statement of your wishes.
Many widely recognized licenses are not intended for, and are not appropriate for, data or collections of data. A variety of waivers and licenses that are designed for and appropriate for the treatment of data are described here. Creative Commons licenses (apart from CCZero), GFDL, GPL, BSD, etc are NOT appropriate for data and their use is STRONGLY discouraged. Use a recognized waiver or license that is appropriate for data.
The use of licenses which limit commercial re-use or limit the production of derivative works by excluding use for particular purposes or by specific persons or organizations is STRONGLY discouraged. These licenses make it impossible to effectively integrate and re-purpose datasets and prevent commercial activities that could be used to support data preservation. If you want your data to be effectively used and added to by others it should be open as defined by the Open Knowledge/Data Definition – in particular non-commercial and other restrictive clauses should not be used.
Furthermore, in science it is STRONGLY recommended that data, especially where publicly funded, be explicitly placed in the public domain via the use of the Public Domain Dedication and Licence or Creative Commons Zero Waiver. This is in keeping with the public funding of much scientific research and the general ethos of sharing and re-use within the scientific community. Explicit dedication of data underlying published science into the public domain via PDDL or CCZero is strongly recommended and ensures compliance with both the Science Commons Protocol for Implementing Open Access Data and the Open Knowledge/Data Definition."
I've been thinking recently about the kind of traps in thinking that we can get infected with due to the nature of our modern, short-attention-span driven media and politics and the language that is used by broadcast and newspaper journalists, commentators and politicians.
I wish, for example, that people would stop using the term 'Islamist' in the context of terrorist activities. Using the word 'Islamist' as a pseudonym for 'terrorist' creates a disproportionate, tension-inducing and misleading mindset, connecting the extreme activities/beliefs of the few with a particular set of religious beliefs of a large number of people, in this case Muslims.
The meme:
Islamist = Terrorist
is a significantly destabilizing one in our society. Demonising over a billion people because of the actions of a few extremists - and statistically speaking the proportion of terrorists in the world is absolutely tiny - gets innocent people hurt. And remember if those tiny number of terrorists succeed, with the unintended aid of the media and politicians, of causing the non muslim population of the world to fear the muslim community, then the terrorists are winning. Because that is what terrorism is all about - spreading fear and consequent instability.
In the late 1980s or early 1990s, I can't remember exactly when, I was once asked by a work colleague in the aerospace industry, at a time when the 'Irish' = 'Terrorist' meme was still infecting people (and I quote):
"Why do you Irish people kill our British soldiers?"
I had known the guy, or thought I did, for several years and clearly this question had been nagging him for some time. I was sufficiently shocked and irritated that I told him that perhaps the question he should be asking, since the people of Northern Ireland were British citizens*, was "Why do British people kill British soldiers?" That wasn't at all well received but then I still proceeded to attempt to explain something of the historical tensions between Ireland and Britain and within Ireland and Northern Ireland; and that when you create a society where there are internecine tensions and fears and you provide various opposing factions with arms, then all kinds of innocent people get hurt, even by those nominally on their own side, as in the case of so called 'friendly fire'.
My questioner had absolutely no interest at all in the history lesson and got extremely angry at my complete slur on the army - how dare I suggest British soldiers would hurt each other, even by accident. He demanded that I name the names of every British soldier that had fired on or hurt a colleague. When I said that wasn't the kind of information I carried around in my head, he concluded that not only had I grossly slandered the UK's fighting forces but that I was lying and clearly an active supporter of terrorists determined to continue killing soldiers. (As it turned out there had been an incident between a couple of soldiers on the streets of Northern Ireland a few weeks prior to our conversation but I don't recall if the name of either party was released.)
Neither one of us came out of the encounter either too happy or with much credit and I don't suppose our friendship was ever the same again but when the 'certain community' = 'terrorist' meme takes hold then it can lead to all kinds of corrosive effects.
Now I generally oppose censorship and to a large degree buy into the US founding fathers concept underlying the first amendment to their constitution (gauranteeing freedom of expression) that I might disagree with what you say but nevertheless defend your right to say it. Heaven knows I've been on the receiving end of enough censorship from software filters over the past 8 years which label my blog a sex site because of the triple x in the title and the url. But the kind of nuanced public debate envisaged by the founding fathers where 'bad' speech would be tackled head on and overcome by 'good' speech seems, sadly, not to be possible in today's world. 'Bad' simplistic memes, like 'Islamist' = 'terrorist' have just as much and sometimes more staying power than 'good' memes, such as 'most people regardless of creed, race or religion' = 'decent'. As Deborah Lipstadt has said:
"Reasoned dialogue has a limited ability to withstand an assault by the mythic power of falsehood."
I made a hash of attempting a reasoned dialogue with my friend but we never got past his complete belief in the false idea that 'Irish people' wanted to kill British soldiers.
Much deeper dialogue is possible and indeed happens on the Internet than through conventional news and broadcast media. Witness, for example, Jack Balkin's amazing blog where, freely available, we get the kind of contempory analysis of US politics and law from the top legal scholars of the day that no news organisation in the world produces. Simplistic memes, however, also often spread more widely and faster on the Net.
Where does that leave us in the context of my specific concern over the current 'Islamist' = 'terrorist' false meme? Well we could make a small start by simply asking responsible news organisations to stop using the word 'Islamist' as a pseudonym for 'terrorist'. Is this censorship? Possibly (but I don't really want to get the political correctness police on the case as that tends to lead to counterproductive backlash). Or is it a suggestion to encourage better, more neutral, news reporting language? Is encouraging the use of better language censorship? Perhaps but if that's what it takes to impede the spread of and begin to cure the infection of the noxious 'Islamist' = 'terrorist' meme then in this limited and very specific instance I'm for it.
* Just to clarify, people of Northern Ireland are also entitled to Irish citizenship and to hold an Irish passport.
Ross Anderson talking buckets of common sense for the BBC about security and the Net:
It's a pity more of Ross's contribution wasn't included in the final broadcast of The Virtual Revolution: The Enemy of the State. We don't know if the teenager interviewed by Dr Krotoski was involved in the attacks on Estonia as he claims for example; but as Ross says the key element of the story was not a group of teens engaging in a simple network attack but the poor state of the Estonian critical systems security. The BBC has made available a transcript of the interview with Ross and some of the other rushes from the programme.
Cory Doctorow is in fine form over at the Guardian today.
"So when Ofcom told Auntie that it hadn't made the case for DRM, that the social harms outweighed the benefits, and that it wouldn't allow the BBC to add DRM after all, it seemed like the regulator had really stepped up to do its duty: protecting the public interest, protecting the rights of disabled people, protecting the rights of British firms to field innovative new devices into the British marketplace.
And then Ofcom caved. In its latest consultation on the matter, Ofcom takes it as a given that the BBC will be allowed to add DRM to our licence-funded television signals. Instead of asking whether there is a case for DRM, Ofcom offers up a string of "have you stopped beating your wife yet?" questions, like, "Do you agree that the BBC's proposed approach for implementing content management would safeguard citizens' and consumers' legitimate use of HD content, and if not, what additional guarantees would be appropriate?"
Did you catch that? Not "Can DRM be used to safeguard legitimate uses?" but rather, "Which DRM should we use to make sure this happens?"
[...] the BBC has been told by its licensors that they won't allow their programmes to be aired in high-def without DRM... But how credulous do you have to be to take a threat like this seriously?
[...] The FCC caved, just like Ofcom...
So we sued...
The court agreed with us. They recognised that being a telcoms regulator doesn't give you the right to regulate receivers and the devices they connect to. The Broadcast Flag died before it could be enacted."
"Should copyright holders be allowed to get the identities of Internet users behind an IP-address for private prosecutions, or should that ability be left solely with the police? That’s the key question behind a pivotal hit movie camcorder case which is set to move amid an unusual amount of secrecy to Norway’s Supreme Court...
Simonsen, a law firm which since 2006 had held a license to monitor alleged pirates and collect their IP-addresses, demanded that the ISP connected with the IP-address hand over the identity of the subscriber, something it had thus far refused to do. The request had the support of the Norwegian telecoms authorities which in this case made a special exception to the country’s Privacy Act, enabling the person’s identity to be handed to a group other than the police – if the court agreed.
On May 5th 2009, Simonsen received the decision from the court but the verdict was kept a secret from the public. Espen Tøndel said this was to prevent the possibility of evidence being spoiled. This lack of transparency caused an uproar"
A few weeks ago Google announced, in the wake of ‘a highly sophisticated and targeted attack on our corporate infrastructure’ and to widespread plaudits in the Western media at least, that the company was taking a stand against China. They would no longer censor Chinese search results in accordance with the local laws and if the government didn’t like it then they would withdraw their business from the country. US Secretary of State, Hilary Clinton, subsequently criticised China over the attacks and called on Google to avoid facilitating "politically motivated censorship".
In The Enemy of the State, the second programme of the OU/BBC's The Virtual Revolution series, Dr Aleks Krotoski looks at China via the notion of a digital arms race between the individual and the state, a model through which the government attempts to control the individual by mass censorship, propaganda and surveillance.
Many people are aware of the “Great Firewall of China”, the internet filters deployed by China to censor web pages containing terms like ‘Falun Gong’, ‘Dalai Lama’ or ‘Tiananmen Square massacre’. Yahoo!, another big US technology company, has been accused of working “regularly and efficiently with the Chinese police" to hand over the personal details of dissident web bloggers, leading to terms of 8 and 10 years respectively for Li Zhi and Shi Tao for criticising their government. Microsoft, Cisco and numerous other global companies have also been vilified for cooperating in censoring the web in China. Most defend themselves, as Google do, “in the belief that the benefits of increased access to information for people in China and a more open Internet outweighed our discomfort in agreeing to censor some results.”
As an Irish, white, middle class academic, resident in the UK, I can grumble about unethical behaviour of big business and the poor human rights record of regimes like China or Iran through the lens of a simplistic algorithm:
China, Iran, Saudi Arabia, North Korea = totalitarian states
Therefore,
Censorship + surveillance = scary + bad
And,
Citizen anonymity = necessary + good
Yet such smug simplistic models rarely tell the real story. It is not just the supposed totalitarian states that are engaged in large scale censorship and surveillance. Freedom of speech has never been an absolute. Even in the US, where it is protected by the first amendment to the constitution, citizens don’t have the freedom to yell “fire!” in a crowded theatre.
At the behest of the UK government, in response to a failed attempt to blow up a plane with explosives hidden in the attacker’s underpants, HeathrowAirport has installed digital strip search machines for the masses. UK Transport Secretary Andrew Andonis said: "In the immediate future, only a small proportion of airline passengers will be selected for scanning. If a passenger is selected for scanning, and declines, they will not be permitted to fly." You will not be allowed on a plane at Heathrow if you refuse to go through a digital strip search when asked.
Laws in the UK, US and a range of other Western democracies require surveillance capability to be built into our communications networks, large scale data retention and the construction of large databases of personal information, all in the name of combating terrorism, crime or protecting children and intellectual property. Wide scale censorship of the Net takes place not just in China and Saudi Arabia but in the UK, parts of the US, Canada, Spain, France, Australia, Germany and many other countries in an attempt to block such horrors as child pornography or Nazi propaganda. Yet that is ok in the simplistic model of the world I presented earlier:
UK, US, Germany, France = democracies
Therefore,
Censorship + surveillance = necessary to protect children + stop terrorists
And
Anonymity = bad, if you have nothing to hide you have nothing to fear
But the model quickly breaks down on all fronts when examined in any detail. Firstly you have to realise that software filters, known by critics as ‘censorware’, don’t do value judgments. They often censor perfectly legitimate sites and fail to block illegal ones. They often also censor websites which are critical of the companies selling the filter software. And in 1999 a big US internet service provider, IDT, shut down all internet traffic originating in the UK because of a spam problem they traced to a computer at LeedsUniversity.
Secondly, anyone with even the mildest understanding of the value of personal privacy has no time for the over-used empty soundbite ‘nothing to hide nothing to fear’, deployed regularly by politicians with large database ‘cures’ for various societal ills.
And thirdly, the thing about technical and legal architectures of surveillance is they are not the exclusive playground of the good guys. The Internet makes our world more complicated not less so. Government computers are widely and virtually irreversibly networked with private sector machines; and governments have not got a great record of building totally reliable, fit-for-purpose, secure information systems. Large, valuable, porous information systems with built-in surveillance tools are very attractive targets for individuals, organisations and states with malign intent.
They also have a tendency to be misused by public officials because they are convenient to use. So for example council officials in the UK use anti-terror laws and technical facilities to spy on families suspected of lying on their forms when applying to get their children into good state schools. After the terrorist attacks of 11th September 2001, then President George W. Bush ordered the National Security Agency to use surveillance systems hardwired into the telecoms network to illegally engage in mass warrantless wiretapping of the phone conversations of tens of thousands of people.*
Although there have been a variety of instances of US military information finding its way into Chinese hands via the hacking of US military systems and possibly vice versa, we have not yet really seen a whole lot of this. But as Ross Anderson says in the Virtual Revolution, as the world becomes more connected the opportunity for nations to do bad things to each other will increase, especially since the tools of surveillance and espionage are literally being designed and built into our communications systems.
Ironically, by building a surveillance infrastructure in the name of security, Western governments and commercial organisations are making us much less secure not more so. Systems with no such in-built surveillance tools, but instead constructed on the principles of “net neutrality”** supported by President Obama recently in his first state of the union address, are more secure.
I’m not suggesting the UK government have anything like the totalitarian intent of the cold war East German or Soviet regimes or that MI5 or MI6 have the terrifying influence of the Stasi, the KGB or the Nazi SS. Gordon Brown is certainly no Mao Zedong and respected journalists like Henry Porter or former Information Commissioner Richard Thomas are not going to suddenly be detained and locked up for 10 years for repeatedly accusing the government of “sleepwalking into a surveillance state”. But we continue to construct and expand these systems at our peril and the threats they pose are real not virtual.
In the spring of 2004 over 100 mobile phones used by key members of the Greek government including the Prime Minister, minister for justice and foreign minister were subject to covert wiretapping which lasted for over a year. It’s still not clear who did the spying but the facility to do it was built into the Vodaphone phones by Ericsson. It was only supposed to be switched on if permission was granted through appropriate legal processes. Somebody figured out how to switch it on. Without permission.
A leaked MI5 memo, in recent days, has outlined the problem of Chinese spying on UK business both through conventional and electronic means. Again China is the bad guy, this time using the internet for industrial espionage rather than waging war on its own citizens.
The services and components of the global surveilled communications infrastructure, apparently used by China for such nefarious activities, are supplied by global corporations like Vodaphone, Ericsson, Yahoo!, Microsoft, Apple, Cisco, Intel, Nokia, Siemens and yes, Google; as well as dynamic home grown manufacturing industry within China and other cheap manufacturing bases like India. These companies variously do business in the EU, the Americas, Eastern Europe, Middle East and Asia because such business provides a return for their shareholders. To the degree that such business facilitates economic development in countries like China, and the consequent improvement of overall living standards, that’s generally a good thing. To the extent that it facilitates the suppression of basic civil rights, such companies need to be more active in engaging with the Chinese authorities in ways that can influence them to respect such rights more widely and more wisely.
Time will tell what effect the current Google exchanges with the emerging economic superpower will have. As to whether it is enlightening to view the Web in the context of China through the model of a digital arms race between the individual and the state, I’ll leave you the reader to decide.
But the final word goes to James Fallows, who has regularly and eloquently argued that China’s relations with the West are more complex and potentially beneficial for both sides, that “China is a still-poor, highly-diverse and individualistic country whose development need not "threaten" anyone else and should be encouraged” but also warns:
“In a strange and striking way there is an inversion of recent Chinese and U.S. roles. In the switch from George W. Bush to Barack Obama, the U.S. went from a president much of the world saw as deliberately antagonizing them to a president whose Nobel Prize reflected (perhaps desperate) gratitude at his efforts at conciliation. China, by contrast, seems to be entering its Bush-Cheney era. For Chinese readers, let me emphasize again my argument that China is not a "threat" and that its development is good news for mankind. But its government is on a path at the moment that courts resistance around the world. To me, that is what Google's decision signifies.”
* For a really interesting perspective on phone tapping in historical context is it worth having a look at this Pathé News clip from 1957, http://www.britishpathe.com/record.php?id=33047 , on the widespread shock over the illegal wiretapping of a phone conversation between a UK barrister Patrick Marriman and his client, a known and self confessed criminal, Billy Hill.Thanks to Richard Lamont via the ukcrypto list for the pointer to that little gem.
Battelle, John (2005) The Search: How Google and Its Rivals Rewrote the Rules of Business and Transformed Our Culture. Nicholas Brealey Publishing. Boston, London.
Vise, David A. (2005) The Google Story: Inside the Hottest Business, Media and Technology Success of Our Time. Macmillan. New York.
Jacques, Martin (2009) When China Rules the World: The Rise of the Middle Kingdom and the End of the Western World. Allen Lane. New York, London, Toronto, Dublin, Victoria, New Delhi, Rosebank
Keay, John (2008) China: A History. HarperPress. London
Report of the Committee of Privy Councillors appointed to inquire into the interception of communications. Presented to Parliament by the Prime Minister by Command of Her Majesty October 1957. http://www.fipr.org/rip/Birkett.htm
Solove, Daniel J. (2004) The Digital Person: technology and privacy in the information age. New YorkUniversity Press. New York, London.
O’Harrow, Robert Jr. (2005) No Place to Hide. Free Press. New York
Garton Ash, Timothy (1997) The File: A Personal History. Harper Collins. London.
Radden Keefe, Patrick (2005) Chatter: Dispatches from the Secret World of Global Eavesdropping. Random House. New York
Diffie, Whitfield and Landau, Susan (2007) Privacy On The Line: The Politics of Wiretapping and Encryption. MIT Press. Cambridge, London.
Web, Maureen (2007) Illusions of Security: Global Surveillance and Democracy in a Post-9/11 World. City Lights Books. New York.
Schneier, Bruce (2008) Schneier on Security. Wiley Publishing Inc. Indianapolis.
Anderson, Ross (2008) Security Engineering: A Guide to Building Dependable Distributed Systems, 2nd Edition. Wiley Publishing Inc. Indianapolis.
Lessig, Lawrence (1999) Code and other laws of cyberspace. Basic Books. New York.
"4. The lack of detail in relation to the technical measures proposals – and in particular,
in relation to the scope of technical measures, the criteria for their imposition and
the enforcement process – has made our assessment of the compatibility of these
proposals with the human rights obligations of the United Kingdom extremely
difficult. As we have explained in the past, flexibility is not an appropriate reason for
defining a power which engages individual rights without adequate precision to
allow for proper parliamentary scrutiny of its proportionality. (Paragraph 1.28)
5. We reiterate our invitation to the Government to provide fuller justification for its
proposals. (Paragraph 1.38)
6. In our view, it is impossible assess fully whether these proposals will operate in a
compatible manner in practice without more detail of the proposed mechanism for
technical measures. Because of the lack of detail on the face of the Bill and the limited
foundation for justification provided for the breadth of these proposed powers, we
acknowledge the concerns about the potential for these powers to be applied in a
disproportionate manner which could lead to a breach of internet users’ rights to
respect for correspondence and freedom of expression. (Paragraph 1.39)
7. There are a number of issues which could helpfully be clarified; some on the face of
the Bill, in order to reduce the risk that these proposals could operate in a manner
which may be incompatible with the Convention. We recommend that the Minister
clarify:
a)the precise intended impact of these proposals on individual accounts, including
(i) whether technical measures may include indefinite suspension of an account and
whether any service limitations imposed will be for a specified time-frame and/or
renewable; and (ii) any potential impact the imposition of technical measures may
have on the ability of a user to secure an alternative service; (Paragraph 1.40)
b) the minimum criteria which would be required to be satisfied before the
imposition of technical measures. The Government has indicated that technical
measures will follow the issue of copyright infringement notices. It would be helpful
if the Government could clarify whether (i) the imposition of technical measures will
be subject only to the initial assessment of the copyright holder that it appeared that
the individual service user had breached his or her copyright; and (ii) if so, would the
same standard of evidence and proof be required for the imposition of technical
measures as would be required for the issue of copyright infringement reports?
(Paragraph 1.40)
8. We recommend that the Bill be amended to make it clear that technical measures
may only be introduced after an assessment by OFCOM of the necessity and
proportionality of these new measures, taking into account the impact of the initial
obligations code. In so far as it is possible, we recommend that the Bill should be
amended to provide additional details on the minimum criteria for the imposition of
technical measures, including the standard of proof which must be applied; the
“trigger” for the imposition of such measures; and any relevant defences for service
users who have taken all reasonable measures to protect their service from
unauthorised use and who have not knowingly facilitated the use of their service for
the purposes of infringing copyright. (Paragraph 1.41)...
11. Without a clear picture of the criteria for the imposition of technical measures, it is
difficult to reach a final conclusion on the fairness of the substantive decision making
process for the imposition of technical measures and its compatibility with Article 6
ECHR and the common law. We recommend that at a minimum, the Government
must be required to confirm that the First Tier Tribunal will be able to consider
whether an infringement of copyright has occurred and any defence that no
infringement of a copyright holders’ rights has been committed or knowingly
permitted by the account holder. Further information about the quality of evidence
to be provided and the standard of proof to be applied should be provided, ideally on
the face of the Bill, and at a minimum by the Minister during the course of debates
on these provisions. In addition, we recommend, for the avoidance of doubt, that the
Bill require that the technical obligations code must provide for any appeal rights to
suspend the application of technical measures and for costs of any successful appeal
to be recoverable by any successful applicant. (Paragraph 1.50)"
Translation: Writing a law that says 3 strikes will be implemented without specifying how, why, where, when, by whom, under what authority and what kind of due process and pre-cutoff appeal mechanism will be provided is unacceptable. The comittee also criticises the government over the notion that clause 17 would give a government minister the power to change copyright law when they felt like it without recourse to parliament.
The brilliant Peter Suber has outlined 4 analogies between open access and clean energy.
"When I think about the political fortunes of open access, I find that I compare them privately to the political fortunes of clean energy. I know there are differences, but I keep returning to the similarities.
I'm not ready to say that the similarities are more salient than the differences. But it's time to get these analogies out in the open.
(1) The gap between breakthrough and uptake
Lots of smart and well-funded people are looking for a source of energy that is renewable, inexpensive, efficient, low-impact to produce, low-impact to use, and doesn't require a police state to keep byproducts out of the hands of terrorists. Suppose they succeed. That would be a momentous breakthrough.
This is already a key difference between OA and clean energy. On the energy side, we're well-embarked but still moiling through primary difficulties of physics and engineering, trying to raise efficiencies and lower prices. But on the OA side, the breakthrough is in hand, and has been since the birth of the internet. We've long since replaced the difficulties of engineering with the difficulties of uptake and persuasion...
(2) Putting obstacles in our way
Imagine the same breakthrough in efficient, inexpensive, clean energy. Now imagine that during the age of dirty energy we had adopted laws and practices which turn out to deter the development, uptake, and use of the spectacular new technology. Some of the obstacles clogging the path to adoption are of our own making.
We might have provided subsidies to dirty energies, which in turn created jobs and revenues, which in turn elected politicians and enriched corporations who now fight to protect those jobs and revenues at the expense of any energy breakthrough. We might have grown to depend on cars, which spawned suburbs, which not only elected politicians but changed the landscape of life for millions of people and now make almost irrelevant any energy breakthrough that doesn't work in cars. We might have grown to depend on cheap oil, which nurtured whole industries and lifestyles which we find it inconceivable to abandon...
(3) Slowing down to protect the incumbents
Imagine the same breakthrough technology producing efficient, inexpensive, renewable, clean energy. Imagine that the only downside seemed to be that it would jeopardize the revenue streams of oil companies and coal mines.
Should we hesitate to use it? Should we wait until we can find a way to ensure the survival of the threatened industries? When policy-makers weigh the advantages and disadvantages of the new technology, should the effect on oil companies and coal mines count as a disadvantage? If so, how much environmental and economic good are we willing to forego in order to prop up the old industries? ...
(4) Some pay for all
The economics of wind power are peculiar. The benefits are global (reduced reliance on oil, reduced greenhouse gas emissions) but the costs are local (expense, sight, sound, wildlife damage). The costs and benefits largely affect different groups. Some other clean sources of energy, and some dirty ones, share the same peculiarity.
So do OA resources, and especially OA journals. The benefits are global (barrier-free access for everyone, increased research productivity) but the costs are local (expense, labor). Moreover, the costs and benefits largely affect different groups. The costs are borne by the publisher and those who support it through publication fees or subsidies. The benefits are enjoyed by researchers everywhere.
"Some pay for all" (SPA) applies equally to fee-based and no-fee OA journals. It also covers green OA as well as gold OA. The cost of a repository is borne by the institution hosting it, and perhaps a few benefactors elsewhere such as foundations or consortial peers. But the benefits are global."
"The giants of the film industry have lost their case against ISP iiNet in a landmark judgement handed down in the Federal Court today.
The decision had the potential to profoundly impact internet users and the internet industry as it sets a legal precedent surrounding how much ISPs are required to do to prevent customers from downloading movies and other content illegally.
But after an on-and-off eight week trial that examined whether iiNet authorised customers to download pirated movies, Justice Dennis Cowdroy found that the ISP was not liable for the downloading habits of its customers."
And in a separate development the Australian Department of Foreign Affairs and Trade (DFAT) has denied that ACTA negotiators have any plans to introduce a 3 strikes regime.
In today's FT Assistant United States Trade Representative for Intellectual Property and Innovation, Stanford McCoy, complains about widespread criticism of secret ACTA negotiations.
"Sir, The article “Secret deal aims to scuttle internet pirates” (January
29) missed the point of ongoing negotiations towards an Anti-Counterfeiting Trade Agreement (ACTA).
Intellectual property protection is critical to jobs and exports that depend on innovation and creativity. Trade in counterfeit and pirated products undermines those jobs and exports, exposes consumers to dangerous knock-offs from toothpaste to car parts, and helps fund organised crime.
The ACTA negotiations are one of many international efforts to fight counterfeiting and piracy – not to “transform” already strong US and European Union copyright laws. Far from keeping them secret, governments participating in these negotiations have sought public comments, released a summary of issues under discussion, and enhanced public engagement.
Among other things, the summary states clearly that “ACTA is not intended to interfere with a signatory’s ability to respect its citizens' fundamental rights and civil liberties”.
The office of the US trade representative has posted ACTA information online at www.ustr.gov/acta. The site includes meeting agendas and links to help the public understand the US approach to key provisions, which is consistent with US law. Other partners have made their own information available about this important work to protect consumers and intellectual property worldwide."
"A judge on Tuesday weighed whether a lawsuit should proceed that seeks to invalidate a company's patents on two genes linked to an increased risk of breast and ovarian cancer.
The case challenging whether anyone can hold patents on human genes has broad implications for the biotechnology industry and genetics-based medical research.
Last March, the American Civil Liberties Union and the Public Patent Foundation sued Myriad Genetics Inc., the University of Utah Research Foundation and the U.S. Patent and Trademark Office in U.S. District Court in Manhattan.
The ACLU and the patent foundation say Myriad's refusal to license the patents broadly has meant that women who fear they may be at risk of breast or ovarian cancer are prevented from having anyone but Myriad look at the genes in question."
I'm pleased this one has finally reached the inside of a courtroom but not necessarily that optimistic about the outcome. Myriad Genetics have been exploiting these patents in a variety of jurisdictions for quite a long time now in patent life terms (since between 1997 and 2000 in the US for example though a number of the patents have been revoked in the EU).
Bloomsbury Academic have just released Chris Marsden's new book, Net Neutrality: Towards a Co-Regulatory Solution under a Creative Commons Attribution Non-Commercial Licence. Chris has been travelling the world for ten years working and engaging in a dialogue with a veritable Who's Who of academic and telecoms industry experts, in addition to regularly disseminating his insights in a multitude of lucid talks on net neutrality. As he says in the preface,
"the subject of net neutrality comes up vicariously, interwoven into every subject, and it is this that gives the power to the debate: net neutrality affects and changes everything, it has impact on all other communications policy discussions."
I'm really looking forward to reading it and would encourage regular b2fxxx visitors to do likewise.
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 43rdUS 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.
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.
"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."
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."
"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."
"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.
"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.
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."
"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."
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
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)."
"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.
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.
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)"
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. "
"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.
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."
