Response to EU consultation on net neutrality

I've responded to the EU consultation on the open internet and net neutrality.  I partly re-iterate and partly expand on the response made to Ofcom on the same matter recently.  Copy of the response below.

Ray Corrigan[1] response to DG Information Society and Media public consultation on the open internet and net neutrality

4.1. The open internet and the end-to-end principle

Question 1: Is there currently a problem of net neutrality and the openness of the internet in Europe? If so, illustrate with concrete examples. Where are the bottlenecks, if any? Is the problem such that it cannot be solved by the existing degree of competition in fixed and mobile access markets?

Yes there is a problem in Europe and no it cannot and is not being solved by existing competition.  The framing of the problem (or what Russell L. Ackoff[2] might describe as a systemic mess) and what to do about it will be heavily influenced by the way that policy makers define the issue of net neutrality and what is meant by widely used but ill-defined terms like ‘competition’ in this context. 

The net neutrality or end to end principle classically described by Saltzer, Reed and Clark[3] was a technical description of one of the central principles of internet architecture: that the network should remain ‘dumb’ and the ‘intelligence’ should reside in the devices at the ends of the network.  Network owners should not be able to control the flow of communications packets or as is sometimes said by purists – ‘all bits are created equal’.  What this means in real terms for internet users and policymakers is that the network was open to everyone – not just trusted or approved sources – and that there were four generic types of freedoms associated with it:

1. Net users should be entitled to access any legal internet content they choose to access
2. Net users should be able to run any applications on their general purpose computers or other devices or use any service they choose
3. Net users should be able to connect any legal devices to the network without having to ask anyone’s permission – just as we can connect a toaster or a TV to the electricity network without requiring permission
4. The network and the regulatory environment should facilitate ‘competition’ between network providers, application providers, service providers, content providers, device providers, network infrastructure investors/builders.  But we have to be careful to understand what we mean by ‘competition’ in each of these different contexts

Net neutrality could loosely be argued to be the current state of affairs. However, the network is already sustaining more users that it was built for and those users’ effective demand for the facility of infinite bandwidth and zero latency is growing.  Throttling and traffic management are standard practice (and given network congestion, necessarily so) amongst network operators and, for example, download speeds are up to 25 times higher than upload speeds.  Changes in network and device architectures and information laws in a whole range of areas from anti-terrorism measures to intellectual property and ecommerce provisions mean items 1 to 3 above are under threat, if not already notably damaged. And although it is widely assumed that, for example, the UK broadband market is ‘competitive’, that supposed ‘competition’ is not leading to the widespread construction of superfast broadband infrastructure or preventing the common and misleading advertising by service providers about broadband speeds.

The explosion of social and cultural creativity and commercial innovation on the internet in the wake of Tim Berners Lee’s development of the World Wide Web was a function of the existence of

• general purpose computers – that could be programmed to do whatever the user wanted
• the open network

Because no one controlled the computers or what people could do on the network and no permission was required, a wave of creativity was released leading to enterprises like Amazon, Google, Napster, iTunes, Facebook, Wikipedia, Twitter, Yahoo pipes and (the main European contribution) Berners Lee’s world wide web itself.  It may be instructive – I couldn’t say – that most of the commercial innovation success stories are US rather than EU based.

As we move increasingly into a world of locked down devices like the iPhone and an evolving oligopolistic/monopolistic environment of network operators with ‘intelligent’ networks, with the ability to discriminate built into the DNA of the network, policymakers in particular need to acutely alert to the potential impact of that concentrated level of control on

1. basic human rights like privacy and freedom of speech – these are increasingly important as more and more of people lives are tied up with and invested in our online personas, digital shadows and personal digital data litter.
2. social and cultural creativity
3. innovation in services, devices, content, infrastructure – we may never know we would use the next Google or Wikipedia because we never get to experience it, if an incumbent operator denies the innovator access to the network or discriminates in such a way as to kill their innovation

James Boyle eloquently describes the net neutrality as the open road of the internet – a public utility which enhances the value of the property connected to and by it.[4] He also suggests that we generally have a serious cognitive limitation which causes us to fail to recognise the value of free, open or commons’ resources because the kind of freedom that leads to productive output on open networks is counter-intuitive.  The success of non proprietary systems – ranging from open source software to Wikipedia and the open internet itself – fills us with surprise, a kind of collective "cultural agoraphobia."

The danger in that cultural agoraphobia is that it will lead us to fail to protect the open network we have had; and perhaps kill off a future innovation that might provide the future equivalent of a gay, Iraqi blogger ‘speaking’ to an audience of millions.  Hence the burden on policymakers to be vigilant in this context is a heavy one with the essential need to maintain a focus on Commissioner Kroes’ key principles:

1. Freedom of expression but also privacy

2. Transparency

3. Infrastructure investment in efficient and open networks

4. Fair competition between network providers, application providers, service providers, content providers, device providers, network infrastructure investors/builders – competition that is clearly defined, properly regulated, monitored and enforced where necessary

5. Support for innovation and monitoring and prevention of discrimination against innovators

Question 2: How might problems arise in future? Could these emerge in other parts of the internet value chain? What would the causes be?

If the architecture of the network is such that discrimination is possible then discrimination will happen.

The fundamental incentive for discrimination, in this context, is the bottom line of the network operators. If network operators are considered to be rational economic actors then traffic that provides a decent proportionate return on costs will be favoured and traffic which shows insufficient financial returns or has a negative impact on the operators business will be discriminated against.

So, for example, the incentive will be to discriminate against high volume peer to peer traffic, competitors traffic where that can be identified as is possible with increasingly 'intelligent' networks, audio/video/gaming/VoIP on demand, high congestion inducing traffic of various kinds (e.g. high bandwidth, zero latency), and Net users engaging in communications which the network operator might disapprove off. This latter traffic spans the spectrum from nefarious criminal and cybervandalism activities at one end of the scale to legitimate political and other speech (e.g. perhaps simple criticism of telcos) at the other end of the scale. There is evidence from the US that some filter software companies, for example, blocked websites that were critical of filter software.[5] In addition there are obvious incentives for network operators to provide priority to traffic from partner/contractually linked organisations.

Question 3: Is the regulatory framework capable of dealing with the issues identified,

including in relation to monitoring/assessment and subsequent enforcement?

That’s a difficult question. If you’re operating a typical EU co-regulatory approach including NRA monitoring and agreed industry codes, assessment of published documents, from the NRA or industry, pertaining to network operators' required operating procedures is relatively straightforward. Actually ensuring operators are following the letter and the spirit of the required standards is more difficult. Measurement of actual operations and net user harm is complex and the temptation would be for an independent auditor (NRA?) to measure metrics which are easy to measure rather than those that provide truly informative indicators of sector practice.  The difficulty in measuring market/consumer/citizen/net user/societal harm, in ways that will provide valuable insights, is potentially intractable.

This consultation sensibly calls for evidence to provide guidance on how to move forward on the regulation of net neutrality and traffic management. Whilst that is an admirable approach - I'm all for evidence based policymaking, something which seems all too rare in recent times - there is a remarkable lack of hard empirical evidence to guide policy on net neutrality. That tells us two things. Firstly we should be investing quickly in much more empirical research to inform policy. Secondly we should be making policy decisions only at a general principle level - e.g. an overriding principle to guarantee an open network for example – until we have gathered sufficient robust evidence to inform more detailed policy decisions.

4.2. Traffic management/discrimination

Question 4: To what extent is traffic management necessary from an operators' point of view? How is it carried out in practice? What technologies are used to carry out such traffic management?

Until we can cut the Gordian knot on large scale investment - from the public and private sectors – in universal super fast broadband infrastructure, congestion problems are going to be ever present and increasing; and traffic management will continue to be essential from an operator’s point of view.

Independent empirical research is required on how this is done in practice and on the technologies involved.

Question 5: To what extent will net neutrality concerns be allayed by the provision of transparent information to end users, which distinguishes between managed services on the one hand and services offering access to the public internet on a 'best efforts' basis, on the other?

Transparency on traffic management whilst very important is never going to be enough on its own. Understanding their internet connection is being throttled during times of congestion does not give the internet user the power or the tools to do anything about it, particularly if there is no open network alternative available at a reasonable cost.

Question 6: Should the principles governing traffic management be the same for fixed and mobile networks?

Ultimately yes.  There are significant technical challenges to overcome and congestion problems are acute, but if we ever get to a point where there is a universally accessible wired and wireless superfast broadband infrastructure, there is no reason to apply different principles dependant on mode of access.

Why did Google get accused recently of doing an apparent u-turn on their stance on net neutrality in reaching an agreement with Verizon? Well Google are betting on a big future for wireless as well as wired networks.  And in the wireless world where they are competing with the highly controlled architecture of the iPhone, the most important thing for Google is that the platforms stay open (i.e. Android based) and Verizon is an important partner to have in that endeavour. 

Market forces will dictate that the large incumbents, as rational economic actors, will do deals in their own interests and those interests may or may not line up with the interests of Net users generally, in relation to the four freedoms of net neutrality specified in my answer to question 1 above. The – admittedly complex – task for regulators is to create an environment where the economic externalities are such that the interests of the incumbents, as far as possible, can be made to line up with those of net users.

Question 7: What other forms of prioritisation are taking place? Do content and application providers also try to prioritise their services? If so, how – and how does this prioritisation affect other players in the value chain?

There is a desperate need for robust independent research on this and little or no direct empirical evidence on content and application providers practices at the moment.

Question 8: In the case of managed services, should the same quality of service conditions and parameters be available to all content/application/online service providers which are in the same situation? May exclusive agreements between network operators and content/application/online service providers create problems for achieving that objective?

Should the same QoS be available to all? Yes.  Will it? No. Without a non-discrimination principle, exclusive agreements between network operators and content/application/online service providers and subsequent discrimination to the detriment of parties not included in such agreements will be a natural emergent property of market forces.

Question 9: If the objective referred to in Question 8 is retained, are additional measures needed to achieve it? If so, should such measures have a voluntary nature (such as, for example, an industry code of conduct) or a regulatory one?

The non discrimination principle requires regulatory authority if it is to have any effect.

4.3. Market structure

Question 10: Are the commercial arrangements that currently govern the provision of access to the internet adequate, in order to ensure that the internet remains open and that infrastructure investment is maintained? If not, how should they change?

Large scale investment in infrastructure construction is a potentially risky venture for any economic actor unless they have the subsequent power to control, monetise and derive a rapid payback and significant return on that investment once the superfast network has been built.  Neelie Kroes asked, in her Net neutrality in Europe Address at the ARCEP Conference,

“Would the bottlenecks and other problems disappear if we manage to foster investment in new and open networks?”

And

“Would regulation promoting more infrastructure competition be reason enough to bring a lighter touch to net neutrality?”

We should also be asking how do we foster investment in infrastructure and what does “infrastructure competition mean?

There is little evidence of the universal construction of superfast broadband infrastructure. Likewise the use of words like 'competition' or 'competitive' also more often confuse rather than enlighten the debate as these words come with certain underlying assumptions and hide a raft of complexity beneath the surface. For example the UK broadband market (fixed and wireless) is considered competitive but what does that really mean? A ‘consumer’ can choose one of a range of ISPs who control the switch at their local exchange or alternatively a hybrid cable operator like Virgin, (if Virgin happens to have cable in that locality). So in reality the net services are still travelling down the same potentially noisy unreliable ISDN line whichever ISP the customer is paying; and switching in practice, if someone can brave that particular minefield (I have and it was painful), may have very little effect on quality of service. Regardless of the ISP claiming ‘up to 10M’ if you’re 2 miles from the exchange the best you’ll get on that line with any of the ISPs controlling the switch in the exchange is 3M. One of the assumptions flowing from the idea that the market is competitive is that consumers will make informed choices – a big assumption. Another big assumption, in a supposedly competitive market, is that incumbent suppliers will have an incentive to invest in high speed infrastructure to generate a competitive advantage. But the kind of competition we have in the UK is demonstrably not leading to universal superfast infrastructure construction, although companies like BT and Virgin are starting to make fibre optic infrastructure available in densely populated areas.

We cannot blame the network operators for engaging in rational economic actor behaviour in this respect, as David Isenberg and David Weinberger explain in ‘The Paradox of the Best Network’, http://netparadox.com/ Fundamentally it is too risky for a network operator to invest large amounts of capital in infrastructure if they are not going to be able to guarantee they have control of that infrastructure in a way that will facilitate a reasonably rapid payback period and a significant and durable return on investment and operations.

That issue of the construction of super fast broadband infrastructure is a key one. There is a serious need for private and public sector investment in broadband infrastructure. Yes the EU is experiencing some tough economic conditions but there is an argument to be made that in times of economic duress, (according to John Maynard Keynes in 'General Theory of Employment Interest and Money'), that is precisely the time we should be investing in further economic and society enhancing infrastructure. In simple terms, paying one person to dig a hole, another to stick fibre optic cable in it and yet another to fill it in could be one way to help the economy out of recession.

4.4. Consumers – quality of service

Question 11: What instances could trigger intervention by national regulatory authorities in setting minimum quality of service requirements on an undertaking or undertakings providing public communications services?

It is difficult to see how NRAs can specify, monitor or enforce minimum QoS requirements prior to the deployment of a universally accessible, open, superfast broadband infrastructure. Until then minimum QoS will have to be so low as to be useless or a minimum standard that network operators can't meet in practice during congested periods, unless specific forms of traffic are allocated regulatory priority which is probably unrealistic.

It is possible that until we can get a decent universal broadband infrastructure in place it may be incumbent on the regulator to find some way of guaranteeing minimum QoS in relation to the operation of and access to essential services. But how that might be done in practice is a difficult question to answer. As I said in answer to question 3 above - measurement of actual operations and net user harm is complex and the temptation would be for an independent auditor (NRA?) to measure metrics which are easy to measure rather than those that provide truly informative indicators of sector practice.  Then enforcement of minimum standards absent adequate knowledge of actual service levels becomes extremely problematic.

Question 12: How should quality of service requirements be determined, and how could they be monitored?

This is something of a moot point for the reasons outlined in my answer to the previous question but monitoring and ensuring operators comply with minimum QoS standards is extremely difficult in practice.

Question 13: In the case where NRAs find it necessary to intervene to impose minimum quality of service requirements, what form should they take, and to what extent should there be co-operation between NRAs to arrive at a common approach?

There is no easy answer to this question.  I would say that should an NRA find a pragmatic way forward on this in the context of their own member state then the need for cooperation between NRAs to arrive at a common approach should be a secondary consideration.

Question 14: What should transparency for consumers consist of? Should the standards currently applied be further improved?

One simple first step is the banning of advertising promising “unlimited” downloads and “up to” speeds.  In addition, before thinking about further improving current standards on transparency more work is needed in enforcing current standards. Customers should be made clearly aware of maximum achievable speeds, capacity limits, minimum QoS and traffic management practices.  Serious thought is required on how to communicate these to consumers in a way which is clear and accessible.  The facility to act on that information, however, is dependent on the network user having access to an effective range of affordable competitive options including network operators who offer a neutral (or open) network facility, something not currently available in the UK (despite the fact that the UK is perceived as having a 'competitive' market)

Question 15: Besides the traffic management issues discussed above, are there any other concerns affecting freedom of expression, media pluralism and cultural diversity on the internet? If so, what further measures would be needed to safeguard those values?

There are serious concerns about freedom of expression, media pluralism and cultural diversity on the internet when the environment is such that the controls of the information flows on the net fall into the hands of an evolving oligopolistic marketplace; and when governments of all hues are concerned with monitoring and controlling such information flows.  Parallel monopolistic and/or oligopolistic market environments, combined with network architectures facilitating control, will make censorship more likely and media pluralism and cultural diversity on the internet less so. It is easy enough to identify regimes like Iran, China and Saudi Arabia which have shown a propensity to engage in censorship by building the tools of censorship into their networks.  However, laws in the UK, EU, 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. Arguably the censorship provisions of the UK’s Digital Economy Act 2010 facilitate the building of a great firewall of the UK every bit as intimidating as the great firewall of China.  Net neutrality is crucially important in the context of media pluralism and cultural diversity but arguably a greater threat to both is the current and evolving state of intellectual property laws.

4.6. Any other issues

Although I have responded to all the questions in the consultation it doesn't seem as if I've even scratched the surface of the complexities involved in this issue. So there were just a number of extra short points I would wish to make.

Firstly for anyone involved in net neutrality policy, Chris Marsden's book, Net Neutrality: Towards a Co-regulatory Solution (Bloomsbury Academic, 2010) is essential reading. It is a coherent book-length argument about a generic regulatory approach to net neutrality which encompasses many of the nuances and complexities of the subject matter it is impossible to include in a short consultation response.

Secondly I am concerned at the degree to which standard terms like 'consumer', 'competition' and 'transparency' often get misunderstood, unintentionally mislead and obscure some of the complexities underlying the whole area of net neutrality. Achieving transparency or consumer satisfaction can often be seen as ends in themselves in the debate; when they can't come anywhere close to addressing the wider needs society or the marketplace might have in relation to the Net. In an information society, the default rules of the road are the information laws and the architectures of our information technologies and networks. That makes network operators potentially the key chokepoints for the implementation, operation and some would argue (though I would fundamentally disagree) policing and enforcement of those information rules of the road. So the debate is much more important than whether BT or TalkTalk can provide cheaper and transparent access to a 'consumer' to the same local loop.

So instead of terms like 'consumer' which can hide a huge range of varying stakeholder interests we should probably use terms like 'net users' which more clearly imply a range of stakeholders which spans the spectrum of consumers, citizens, creators, artists, innovators, businesses etc. - the whole gamut of the economy and society.

Thirdly and surprisingly given Neelie Kroes emphasis on the need to support innovation, there are no explicit questions in the consultation relating to innovation and the internet; and in particular whether traffic management might have a detrimental impact on innovation.  It can be presumed that in the case of innovations that might be perceived to threaten network operators' positions the network operators will act to inhibit that innovation.

As Jack Osterman of AT&T said in the 1960s regarding Paul Baran's packet switching ideas: "First it can't possibly work, and if it did, damned if we are going to allow the creation of a competitor to ourselves."

Though direct independent empirical evidence that traffic management will have a negative impact on innovation is in short supply, there is evidence, across a range of sectors, however, that incumbents will act to protect their market position from competition and new entrants.[6]

And whilst I don't really wish to focus on or particularly criticise AT&T, the Hush a Phone case[7] is the classic illustration in the telecoms sector that even when an innovator provides no threat to the incumbent monopoly that incumbent may well be prepared to act in a way that crushes innovation.

Fourthly there is a dearth of independent empirical evidence generally informing the debate on net neutrality.  The whole question of the impact of congestion, traffic management, investment (or lack of it) in infrastructure, QoS on net users and the whole value chain would be complicated enough if we did have the evidence to begin to make some rational judgements on balancing the needs of the various stakeholders.  Without comprehensive, solid, independent, empirical data on industry practices and their real impacts, we can only guess at the necessary policies and the temptation might be to operate a light touch on net neutrality. Some stakeholders and commentators will approve of such a light touch.  Others (eg Lessig[8]) would suggest that net neutrality may be doomed in the absence of appropriate regulatory framework.  In the absence of a market environment encouraging the competitive construction of superfast infrastructure I lean towards Lessig’s perspective but without robust empirical research it is difficult to be confident.

Finally, we should be looking, as a matter of policy principle, at guaranteeing, in the long term, universal access to an open or neutral internet. Internet access, in the EU, is a fundamental part of access to education, essential services, employment, business operations, as well as simple entertainment or online retailing. The regulatory principles governing the internet therefore become crucial to the future of our society and economy in ways that we would not have conceived of a mere 20 years ago. Given its importance now, though, the key priorities for the EU Commission should be:

1) in creating (and investing in) an environment that will create incentives for the construction of a superfast broadband infrastructure and

2) in ensuring that there is universal access to via that infrastructure to an open or neutral internet.

---

[1] Senior Lecturer in Maths, Computing & Technology, The Open University, UK.

[2] Ackoff, R.L. (1999) Ackoff's Best: His Classic Writings on Management Wiley, New York

[3] J.H. Saltzer, D.P. Reed and D.D. Clark (1981, 1984) End to end arguments in system design Second International Conference on Distributed Computing Systems, pages 509-512, April 1981. ACM Transactions on Computer Systems, 2(4), pages 277-288, 1984

[4] Boyle, J (2010) The Public Domain: Enclosing the Commons of the Mind. Yale University Press. New Haven & London

[5] See for example Wallace, J and Mangan, M. (1997) Sex Laws and Cyberspace: Freedom and Censorship on the Frontiers of the Online Revolution. Henry Holt and Company, New York.

See also http://www.peacefire.org/censorware/ and http://sethf.com/anticensorware/

[6] See for example, Clayton, C. (1997) The Innovator's Dilemma: When New Technologies Cause Great Firms to Fail, Harvard Business School Press, Boston. Also Jaffe, A and Lerner, J. (2006) Innovation and Its Discontents, Princeton University Press, New Jersey, Oxford

[7] Hush-A-Phone v. United States, 238 F.2d 266 (DC Cir. 1956)

[8] Lessig, L (2006) Code and Other Laws of Cyberspace Version 2.0 Basic Books, New York

Ofcom conducting internal review on my FOI on BBC DRM

I've had a holding response from Ofcom to say they are going to conduct an internal review on my follow up BBC DRM freedom of information request.  I hadn't formally asked for an official internal review but I assume my request to reconsider releasing the withheld information could have been interepreted as such. 

"Dear Mr Corrigan

Freedom of Information: Internal review

Thank you for your email dated 28 September (see below) to Ofcom asking for a review of our decision in relation to your request for information.

The review will be conducted under the supervision of the Secretary to the Corporation. While there is no statutory deadline for completing internal reviews, we aim to respond within 20 working days. Please contact me at [Ofcom request email] if you have any queries, remembering to quote the reference number 1-155429914.

Yours sincerely

Mauzima Bhamji"

Follow up to Ofcom on BBC DRM

I've sent a follow up note to Ofcom asking them to reconsider disclosing the key information they have withheld when responding to my freedom of information request on the BBC HD DRM decision. I've suggested the claimed exemptions under sections 41 and 44 of the Freedom of Information Act and section 393(1) of the Communications Act don't apply and that they have an obligation to disclose.  I was tempted but refrained from reminding them that the Communications Act 2003, Part 1, section 3, outlines the General duties of OFCOM as follows:

(1) It shall be the principal duty of OFCOM, in carrying out their functions—
(a) to further the interests of citizens in relation to communications matters; and
(b) to further the interests of consumers in relevant markets, where appropriate by promoting competition.

And that they appear to be failing in these duties when it comes to the BBC HD DRM decision.

Copy of my follow up note below.

To: Julia Fraser
Subject: Re: Your Ofcom enquiry

Dear Ms Fraser,

Freedom of Information: Right to know request 1-155429914

Thank you for your response to my freedom on information request
relating to the Ofcom consultation 'Content Management on the HD
Freeview platform' and in particular the full response to section
(b) and partial information supplied in connection with sections
(c) and (d) of my request.

You have, however, withheld key information relating to sections
(a) and similarly in relation to sections (c) and (d) of my
request, suggesting it falls under exemptions provided by Section
41 and Section 44 of the Freedom of Information Act and Section
393(1) of the Communications Act 2003.

In relation to Section 41, you will be aware and s2.3 of the full
exemptions guidance on how s41 should be interpreted says:

"2.3 This exemption only applies if a breach of confidence would be
"actionable". A breach of confidence will only be "actionable" if a
person could bring an action and be successful. The courts have
recognised that a person will not succeed in an action for breach
of confidence if the public interest in disclosure outweighs the
public interest in keeping the confidence."

So the courts have recognised that there is a public interest test
in relation to Section 41 exemptions, despite your advice to the
contrary. It is my contention that the disclosure of the arguments
of the BBC, Channel 4 and ITV in favour of DRM would be in the
public interest and would significantly outweigh the interest in
keeping the confidence. After all, if the confidential claims are
in the public interest and so compelling as to be a key factor in
Ofcom's decision to approve HD DRM, (as stated by Ofcom in your
decision to approve Freeview HD DRM in June 2010) how can the
public be harmed by having access to and understanding these
arguments; and the detailed efforts the broadcasters are making on
our behalf?

On the question of your claim of exemption from disclosure under
Section 44 of the Act, as I understand it, you are claiming the
protection of s41(1)(a) i.e. prohibition from disclosure under an
existing Act, the Communications Act 2003, and specifically Section
393(1) of the latter Act. Section 393(1) does indeed appear to
prevent the disclosure of information obtained about a business.
However, Section 393(2)(a) of the Communications Act 2003 says:

"(2) Subsection (1) does not apply to any disclosure of information
which is made—

(a) for the purpose of facilitating the carrying out by OFCOM of
any of their functions;"

So s393(1) does not apply to Ofcom in carrying out its functions.
In addition Section 393(6) of the Communications Act 2003 says

"6) Nothing in this section—

(a) limits the matters that may be published under section 15, 26
or 390;

(b) limits the matters that may be included in, or made public as
part of, a report made by OFCOM by virtue of a provision of this
Act or the Office of Communications Act 2002 (c. 11);

(c) prevents the disclosure of anything for the purposes of a
report of legal proceedings in which it has been publicly
disclosed;

(d) applies to information that has been published or made public
as mentioned in paragraphs (a) to (c)."

So Section 393 cannot be used to limit matters included in an Ofcom
report. As a matter of interest, section 15 relates to Ofcom's duty
to publish and take account of research; Section 26 relates to
Ofcom's publication of information and advice for consumers; both
of which arguably relate to the Freeview DRM decision.

In relation to the information supplied, I fully understand and
support your decision to redact some of the information therein
based on Section 40 of the Act which relates to personal
information.

So thank you for the information you have supplied but I would ask
you to reconsider disclosing the information you have withheld
relating to sections (a), (b) and (c) of my original freedom of
information request. Given the balance of public interest test
required under section 41 of the Freedom of Information Act and the
claimed exemption under Section 44 being negated in particular by
section 393(2) of the Communications Act 2003, I would respectfully
suggest Ofcom has an obligation to disclose this information.

So just to be clear on the request, I have repeated the original
(a), (c) and (d) requests below:

(a) A full copy, including the redacted sections noted on page 1
and 7, of the 'BBC response to Ofcom consultation of 22 January
2010
http://stakeholders.ofcom.org.uk/binarie...

(c) Details supplied by Channel 4, not part of its formal response
to the consultation
http://stakeholders.ofcom.org.uk/binarie...
relating to specific content which, in its view, may be at risk in
the future if content management is not introduced and also those
titles which it believes are currently sensitive.

Note specifically in relation to (c): I would request the withheld
attachment to the email correspondence from Channel 4 to Ofcom.

(d) A full copy of ITV communications with Ofcom relating to
'Content management on the HD Freeview platform'.

Note specifically in relation to (d): I would request the withheld
attachment to the email correspondence from ITV Plc to Ofcom.

Thank you for your time and attention and I look forward to hearing
from you further on this matter.

Yours sincerely,

Ray Corrigan

BBC DRM response from Ofcom and intial thoughts

Ofcom has now responded to my freedom of information request relating to the decision to permit DRM on the BBC HD signal.  I include a copy of the covering letter at the end of this post.  My first perusal of the response suggests that the key information has been withheld on the basis of exemptions provided under sections 41 and 44 of the Freedom of Information Act.

"This information you requested is being withheld as it falls under the following exemptions:

·            Section 41 of the Act, relating to information provided in confidence. Section 41 is an absolute exemption under the Act and does not require a public interest test.

and

·            Section 44 of the Act. Under this section information which we hold on this subject is exempt from disclosure since it was shared with us under our regulatory power and disclosure is prohibited under section 393(1) of the Communications Act 2003.  Section 44 is an absolute exemption under the Act and does not require a public interest test."

So the key confidential arguments that the BBC, ITV and Channel 4 used to convince Ofcom to permit DRM on the HD Freeview signal are to be kept secret because there is no public interest test to compel disclosure of that information under sections 41 and 44 of the Freedom of Information Act.  There can be little doubt that these were key arguments in the Ofcom decision, as that is precisely what Ofcom's summary of the decision stated in paragraph 1.6:

"1.6 In response to the Consultation the BBC, ITV and Channel 4 provided confidential details on the acquired HD content that would be affected if an effective content management framework was not provided on the DTT platform, including the need to 'blank out' some HD content. This evidence was supported by the views expressed by representatives of rights holders. Based on this information, and the increasing use of content management on other digital TV platforms, we have concluded that the BBC's proposal would widen the range of HD content available on the DTT platform, in particular high value film and drama content, and that this would bring positive benefits to citizens and consumers and also help ensure that the DTT platform is able to compete on similar terms with other digital TV platforms for HD content rights."

The thing about section 41 and section 44 exemptions is that, despite the bypassing of a public interest requirement which make them look like a cast iron excuse, even if it would be in the public interest to release the information requested, these get-out clauses do not constitute an absolute immunity to the obligation to disclose information under the Act.  Section 41 of the Act states:

"41 Information provided in confidence.

(1) Information is exempt information if—

(a) it was obtained by the public authority from any other person (including another public authority), and

(b) the disclosure of the information to the public (otherwise than under this Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person.

(2) The duty to confirm or deny does not arise if, or to the extent that, the confirmation or denial that would have to be given to comply with section 1(1)(a) would (apart from this Act) constitute an actionable breach of confidence."

and s2.3 of the full exemptions guidance on how s41 should be interpreted says:

"2.3 This exemption only applies if a breach of confidence would be "actionable". A breach of confidence will only be "actionable" if a person could bring an action and be successful. The courts have recognised that a person will not succeed in an action for breach of confidence if the public interest in disclosure outweighs the public interest in keeping the confidence."

Now it is my contention that the disclosure of the arguments of the BBC, Channel 4 and ITV in favour of DRM would be in the public interest and would significantly outweigh the interest in keeping the confidence. So a s41 refusal leads to the conclusion that Ofcom are concerned about legal action by the BBC, Channel 4 and ITV if they were to disclose this information; and also the risk that a judge would rule that keeping the information secret was in the public interest, a pretty difficult argument to make I would have thought.  After all, if the confidential claims are in the public interest and so compelling as to be a key factor in Ofcom's decision to approve HD DRM, how can the public possibly be harmed by having access to and understanding these arguments; and the detailed efforts the broadcasters are making on our behalf.


Section 44 of the Act states:

"44 Prohibitions on disclosure.

(1)Information is exempt information if its disclosure (otherwise than under this Act) by the public authority holding it—

(a)is prohibited by or under any enactment,

(b)is incompatible with any Community obligation, or

(c)would constitute or be punishable as a contempt of court.

(2)The duty to confirm or deny does not arise if the confirmation or denial that would have to be given to comply with section 1(1)(a) would (apart from this Act) fall within any of paragraphs (a) to (c) of subsection (1)."

and the guidance says:

"2.1 This exemption is intended to ensure that certain existing legal prohibitions on disclosure will override the general rights of access under the FOI Act. There are three such types of existing legal prohibitions: prohibitions under existing Acts, European Community obligations, and disclosures which would constitute or be punishable as a contempt of court. It is important to note that in such cases not only is there no obligation to disclose under the FOI Act, there is no discretion to disclose either. There is no balance of public interest to be made. The prohibition on disclosure must be observed."

That looks like a slightly tougher nut to crack.  No discretion, no public interest. Tough. In her response to my FOI request, Ms Fraser of Ofcom states:

"Under this section information which we hold on this subject is exempt from disclosure since it was shared with us under our regulatory power and disclosure is prohibited under section 393(1) of the Communications Act 2003."

So she is claiming the protection of s41(1)(a) i.e. prohibition from disclosure under an existing Act, the Communications Act 2003.  You'll have to bear with me here, whilst I now to do a detour to section 393(1), (2) and (6) of the Communications Act 2003.

Section 393(1) of the Communications Act 2003 does indeed state that:

"(1)Subject to the following provisions of this section, information with respect to a particular business which has been obtained in exercise of a power conferred by—

(a)this Act,

(b)the enactments relating to the management of the radio spectrum (so far as not contained in this Act),

(c)the 1990 Act, or

(d)the 1996 Act,

is not, so long as that business continues to be carried on, to be disclosed without the consent of the person for the time being carrying on that business."

Slam dunk.  No disclosure of information obtained about a business. 

But...

Section 393(2)(a) of the Communications Act 2003 says:

"(2) Subsection (1) does not apply to any disclosure of information which is made—

(a) for the purpose of facilitating the carrying out by OFCOM of any of their functions;"

So s393(1) does not apply to Ofcom in carrying out their functions.  It seems the obligation not to disclose the information from the BBC, ITV and Channel 4 is not as watertight as it might have appeared. Just for good measure,


Section 393(6) of the Communications Act 2003 says

"6) Nothing in this section—

(a) limits the matters that may be published under section 15, 26 or 390;

(b) limits the matters that may be included in, or made public as part of, a report made by OFCOM by virtue of a provision of this Act or the Office of Communications Act 2002 (c. 11);

(c) prevents the disclosure of anything for the purposes of a report of legal proceedings in which it has been publicly disclosed;

(d) applies to information that has been published or made public as mentioned in paragraphs (a) to (c)."

So Section 393 cannot be used to limit matters included in an Ofcom report.  And as a matter of interest, section 15 relates to Ofcom's duty to publish and take account of research; Section 26 relates to Ofcom's publication of information an advice for consumers; both of which arguably relate to the Freeview DRM decision.  (Section 390 covers the annual report on the secretary of state's functions and is not directly relevant).

That's just my intitial thoughts.  I will have to go through what Ofcom has sent me in detail before producing a follow up response and if any FOI legal eagles have any thoughts I'd be happy to hear from you.  In the meantime you can see the three documents Ofcom has sent me at WhatDoTheyKnow.

The response covering letter, in full, from Julia Fraser at Ofcom follows.

Dear Mr Corrigan,

Freedom of Information: Right to know request 1-155429914

Thank you for your request for information which Ofcom received on 27 August 2010 and has considered under the Freedom of Information Act 2000 (the Act).

I have answered your questions in turn below:

I would like to make a freedom of information request for full and complete copies of all the BBC, ITV and Channel 4 communications with Ofcom relating to the Ofcom consultation 'Content management on the HD Freeview platform' (Start date: 22 January 2010, End date: 02 April 2010).  In particular could you send me:

(a)          A full copy, including the redacted sections noted on page 1 and 7, of the 'BBC response to Ofcom consultation of 22 January 2010 http://stakeholders.ofcom.org.uk/binaries/consultations/content_mngt/responses/BBC.pdf

This information you requested is being withheld as it falls under the following exemptions:

·            Section 41 of the Act, relating to information provided in confidence. Section 41 is an absolute exemption under the Act and does not require a public interest test.

and

·            Section 44 of the Act. Under this section information which we hold on this subject is exempt from disclosure since it was shared with us under our regulatory power and disclosure is prohibited under section 393(1) of the Communications Act 2003.  Section 44 is an absolute exemption under the Act and does not require a public interest test.

(b)          A copy of the BBC submission to Ofcom of 8 December 2009 on  this same matter

This document is published and can be found at page 52 of the consultation: http://stakeholders.ofcom.org.uk/binaries/consultations/content_mngt/summary/condoc.pdf.

(c)          Details supplied by Channel 4, not part of its formal response to the consultation http://stakeholders.ofcom.org.uk/binaries/consultations/content_mngt/responses/Channel_4.pdf relating to specific content which, in its view, may be at risk in the future if content management is not introduced and also those titles which it believes are currently sensitive.

Email correspondence from Channel 4 to Ofcom is included in the attached file. The attachment to that email cannot be disclosed by Ofcom as it falls under the following exemptions

·            Section 41 of the Act, as explained above

·            Section 44 of the Act, as explained above.

(d)      A full copy of ITV communications with Ofcom relating to 'Content management on the HD Freeview platform'. ITV's submission is not obviously available on Ofcom's webpage relating to the consultation at http://stakeholders.ofcom.org.uk/consultations/content_mngt/?showResponses=true

Email correspondence from ITV Plc to Ofcom is included in the attached file. The attachment to that email cannot be disclosed by Ofcom as it falls under the following exemptions:

·            Section 41 of the Act, as explained above

·            Section 44 of the Act, as explained above

The attached file contains copies of all the correspondence that Ofcom holds that is relevant to your enquiry and that we can disclose, I have also attached a copy of a presentation by the BBC to Ofcom on this subject.

Note: since the date of this presentation, EBU members have now reached agreement on a common approach to content management which allows for both the BBC and other EBU members to adopt solutions in accordance with local practices.

Please note that some of the information within the correspondence have been redacted based on section 40 of the Act, which relates to personal information and which provides that such information is exempt for the purposes of the Act.

Other exemptions are likely to apply.

Please ensure that when using the provided information in any way, you comply with all relevant legislation.  For example, the information provided may be protected by copyright under the Copyright, Designs and Patents Act 1988 (as amended).  If in doubt, please seek independent legal advice.  For Ofcom’s policy on copyright and related issues, please refer to http://www.ofcom.org.uk/about/accoun/disclaimer/#content.

Yours sincerely

Julia Fraser

Freedom of information request on BBC DRM: No Ofcom response yet

The statutory deadline for Ofcom to produce a response to my freedom of information request on BBC and freeview DRM was last Thursday, 24th of September.  As of yet I have recieved no response or even acknowledgement.  So on Saturday, 26th September I sent them a reminder.

Dear Office of Communications,

On the 26th of August I made a freedom of information request for
full and complete copies of all the BBC, ITV and Channel 4
communications with Ofcom relating to the Ofcom consultation
'Content management on the HD Freeview platform'.

I understand by law that I should have received a response promptly
or at the latest within 20 working days, which in this case would
have been the 24th September.

I'm contacting you as a reminder today that I have not yet received
a response to my request.

Yours faithfully,

Ray Corrigan

Update: I've just had a response.  More when I've had the chance to review it.

Schneier on social networking, privacy and data pollution

Bruce Schneier speaking sense, as ever, on security and privacy in a socio-technical age.

Response to Ofcom consultation on net neutrality

Having been privileged to attend a joint POLIS and Communications Consumer Panel workshop on net neutrality earlier in the week at the LSE (Chatham House rules), I've carved out a couple of hours today to respond to Ofcom's consultation on traffic management and 'net neutrality'.  It was done quickly this morning in between ticking boxes on forms for anxious administrators, so it's not a particularly comprehensive response but I've copied it below for those who might be interested. It's odd the way the 'Additional comments' were arranged at the start of the form but fwiw my additional comments were done after addressing the 11 questions. Feedback on critical errors/omissions welcome.

Additional comments:

Although I have responded to all the questions in the consultation it doesn't seem as if I've even scratched the suface of the complexities involved in this issue. So there were just a number of extra short points I would wish to make.
Firstly for anyone involved in net neutrality policy, Chris Marsden's book, Net Neutrality: Towards a Co-regulatory Solution, is essential reading. It is a coherent book-length argument about a generic regulatory approach to net neutrality which encompasses many of the nuances and complexities of the subject matter it is impossible to include in a short consultation response.
Secondly I am concerned at the degree to which standard terms like 'consumer', 'competition' and 'transparency' often get misunderstood, unintentionally mislead and obscure some of the complexities underlying the whole area of net neutrality. Achieving transparency or consumer satisfaction can often be seen as ends in themselves in the debate; when they can't come anywhere close to addressing the wider needs society or the marketplace might have in relation to the Net. In an information society, the default rules of the road are the information laws and the architectures of our information technologies and networks. That makes network operators potentially the key chokepoints for the implementation, operation and some would argue (though I would fundamentally disagree) policing and enforcement of those information rules of the road. So the debate is much more important than whether BT or TalkTalk can provide cheaper and transparent access to a 'consumer' to the same local loop.
So instead of terms like 'consumer' which can hide a huge range of varying stakeholder interests we should probably use terms like 'net users' which more clearly imply a range of stakeholders which spans the spectrum of consumers, citizens, creators, artists, innovators, businesses etc. - the whole gamut of the economy and society.
Likewise the use of words like 'competition' or 'competitive' also more often confuse rather than enlighten the debate as these words come with certain underlying assumptions and hide a raft of complexity under the surface. For example the UK broadband market (fixed and wireless) is considered competitive but what does that really mean? A ‘consumer’ can choose one of a range of ISPs who control the switch at their local exchange or alternatively a hybrid cable operator like Virgin, (if Virgin happens to have cable in that locality). So in reality the net services are still travelling down the same potentially noisy unreliable ISDN line whichever ISP the customer is paying; and switching in practice, if someone can brave that particular minefield (I have and it was painful), may have very little effect on quality of service. Regardless of the ISP claiming ‘up to 10M’ if you’re 2 miles from the exchange the best you’ll get on that line with any of the ISPs controlling the switch in the exchange is 3M. One of the assumptions flowing from the idea that the market is competitive is that consumers will make informed choices – a big assumption. Another big assumption, in a supposedly competitive market, is that incumbent suppliers will have an incentive to invest in high speed infrastructure to generate a competitive advantage. But the kind of competition we have in the UK is demonstably not leading to universal superfast infrastructure construction. And we cannot blame the network operators for engaging in rational economic actor behaviour in this respect, as David Isenberg and David Weinberger explain in The Paradox of the Best Network, http://netparadox.com/ Fundamentally it is too risky for a network operator to invest large amounts of capital in infrastructure if they are not going to be able to gaurantee they have control of that infrastructure in a way that will facilitate a reasonably rapid payback period and a significant and durable return on investment and operations.
Thirdly that issue of the construction of super fast broadband infrastructure is a key one. There is a serious need for private and public sector investment in broadband infrastructure (PPP?). Yes the UK is in debt and yes the government is making serious cuts but there is an argument to be made that in times of economic duress, (according to John Maynard Keynes in 'General Theory of Employment Interest and Money'), that is precisely the time we should be investing in further economic and society enhancing infrastructure. In simple terms, paying one person to dig a hole, another to stick fiber optic cable in it and yet another to fill it in could be one way to help the economy out of recession.
Finally, we should be looking, as a matter of policy principle, at guaranteeing, in the long term, universal access to an open or neutral internet. Internet access, in the UK, is a fundamental part of access to education, essential services, employment, business operations, as well as simple entertainment or online retailing. The regulatory principles governing the internet therefore become crucial to the future of our society and economy in ways that we would not have conceived of a mere 20 years ago. Given its importance now, though, the key priorities for the regulator and for government should be
1) in creating (and investing in) an environment that will create incentives for the contruction of a superfast broadband infrastructure and
2) in ensuring that there is universal access to via that infrastructure to an open or neutral internet.

Question 1: How enduring do you think congestion problems are likely to be on different networks and for different players?:

Until we can cut the gordian knot on large scale investment - from the public and private sectors - in universal super fast broadband infrastructure, congestion problems are going to be ever present and increasing. The network is already sustaining more users that it was built for and those users effective demand for the facility of infinite bandwidth and zero latency is growing.

Question 2: What do you think are possible incentives for potentially unfair discrimination?:

If the architecture of the network is such that discrimination is possible then discrimination will happen.
The fundamental incentive for discrimination, in this context, is the bottom line of the network operators. If network operators are considered to be rational economic actors then traffic that provides a decent proportionate return on costs will be favoured and traffic which shows insufficient financial returns or has a negative impact on the operators business will be discriminated against.
So, for example, the incentive will be to discriminate against high volume peer to peer traffic, competitors traffic where that can be identified as is possible with increasingly 'intelligent' networks, audio/video/gaming/VoIP on demand, high congestion inducing traffic of various kinds (e.g. high bandwidth, zero latency), and Net users engaging in communications which the network operator might disapprove off. This latter traffic spans the spectrum from nefarious criminal and cybervandalism activities at one end of the scale to legitimate political and other speech (e.g. perhaps simple criticism of telcos) at the other end of the scale. There is evidence from the US that some filter software companies, for example, blocked websites that were critical of filter software. (See for example Wallace, J and Mangan, M. (1997) Sex Laws and Cyberspace: Freedom and Censorship on the Frontiers of the Online Revolution. Henry Holt and Company, New York. Also http://www.peacefire.org/censorware/ and http://sethf.com/anticensorware/
In addition there are obvious incentives for network operators to provide priority to traffic from partner/contractually linked organisations.

Question 3: Can you provide any evidence of economic and or consumer value generated by traffic management? :

No. There is a dearth of research on this and hence little or no empirical evidence.
Network operators in the UK suggest they make best efforts attempts to evenly manage traffic flows during periods of high congestion.

Question 4: Conversely, do you think that unconstrained traffic management has the potential for (or is already causing) consumer/citizen harm? Please include any relevant evidence. :

As per Q3 empirical evidence is thin on the ground which, given the net neutrality debate has been going on for so long, and despite the fact that the gathering and analysis of such evidence is a significantly non trivial task, is a bit of an indictment of all the major stakeholders.
Has unconstrained traffic management the potential for consumer/citizen/user harm? Yes. How and what kinds of harm? See my answer to Q2 above.

Question 5: Can you provide any evidence that allowing traffic management has a negative impact on innovation? :

As per Q3 above there is a desperate need for robust research on this and little or no empirical evidence at the moment. It could be presumed that innovations that might be perceived to threaten network operators' positions then the network operators will act to inhibit that innovation.
As Jack Osterman of AT&T said in the 1960s regarding Paul Baran's packet switching ideas: "First it can't possibly work, and if it did, damned if we are going to allow the creation of a competitor to ourselves."
So direct empirical evidence that traffic management will have a negative impact on innovation is in short supply. There is evidence across a range of sectors , however, (see for example, Clayton, C. (1997) The Innovator's Dilemma: When New Technologies Cause Great Firms to Fail, Harvard Business School Press, Boston. Also Jaffe, A and Lerner, J. (2006) Innovation and Its Discontents, Princeton University Press, New Jersey, Oxford. that incumbents will act to protect their market position from competition and new entrants.
And whilst I don't really wish to focus on or particularly criticise AT&T, the Hush a Phone case (Hush-A-Phone v. United States, 238 F.2d 266 (DC Cir. 1956)) is the classic illustration in the telecoms sector that even when an innovator provides no threat to the incumbent monopoly that incumbent may well be prepared to act in a way that crushes innovation.

Question 6: Ofcom’s preliminary view is that there is currently insufficient evidence to justify ex ante regulation to prohibit certain forms of traffic management. Are you aware of evidence that supports or contradicts this view? :

Care is required here. Lack of evidence of harm is not the same as evidence of of lack of harm. In addition, the difficulty in measuring market/consumer/citizen/net user/societal harm, in ways that will provide valuable insights, is potentially intractable.
Much of the focus of this consultation is in calling for evidence to provide guidance on how to move forward on the regulation of net neutrality and traffic management. Whilst that is an admirable approach - I'm all for evidence based policymaking, somehting which seems all too rare in recent times - there is a remarkable lack of hard empirical evidence to guide policy on net neutrality. That tells us two things. Firstly we should be investing quickly in much more empirical research to inform policy. Secondly we should be making policy decisions only at a general principle level - e.g. an overriding principle to guarantee an open network for example - until we have gathered sufficient robust evidence to inform more detailed policy decisions.

Question 7: Ofcom’s preliminary view is that more should be done to increase consumer transparency around traffic management. Do you think doing so would sufficiently address any potential concerns and why?:

Transparency on traffic management is never going to be enough on its own. Understanding their internet connection is being throttled during times of congestion does not give the internet user the power or the tools to do anything about it, particularly if there is no open network alternative available at a reasonable cost.
The passage of the Digital Economy Act was arguably transparent - people could follow the debate in parliament and write to their MPs objecting to it - and more than 20,000 people did, but it still got rushed through in the wash up of legislation before the general election. Tens of thousands could see what was happening, objected to it, but ultimately could not do anything about it.

Question 8: Are you aware of any evidence that sheds light on peoples’ ability to understand and act upon information they are given regarding traffic management?:

No. Again evidence is in short supply. There is evidence, however, of the ability of people to understand complex data sets if they are presented in a suffiently accessible way. See Tufte, E. (2004) The Visual Display of Quantative
Information 2nd Ed. Graphics Press, Cheshire.
The facility to act on that information is dependent on having access to an effective range of affordable competitive options including network operators who offer a neutral (or open) network facility, something not currently available in the UK (despite the fact that the UK is perceived as having a 'competitive' market)

Question 9: How can information on traffic management be presented so that it is accessible and meaningful to consumers, both in understanding any restrictions on their existing offering, and in choosing between rival offerings? Can you give examples of useful approaches to informing consumers about complex issues, including from other sectors?:

The best examples I know on explaining complex data/issues in an accessible way are Edward Tufte's range of work 'The Visual Display of Quantative
Information', 'Envisioning Information', 'Visual Explanations: Quantities, Evidence and Narrative'.
Also Hans Rosling's work with Gapminder.

Question 10: How can compliance with transparency obligations best be verified?:

Assessment of published documents pertaining to network operators' claimed operating procedures is relatively straightforward. Actually ensuring operators are following the letter and the spirit of their own publicly available procedures is more difficult. Measurement of actual operations and net user harm is complex and the temptation would be for an independent auditor (Ofcom?) to measure metrics which are easy to measure rather than those that provide truly informative indicators of sector practice.

Question 11: Under what circumstances do you think the imposition of a minimum quality of service would be appropriate and why? :

When we have built a universal superfast broadband infrastructure.
Until then minimum QoS will have to be so low as to be useless or a minimum standard that network operators can't meet in practice during congested periods, unless specific forms of traffic are allocated regulatory priority which is probably unrealistic.
It is possible that until we can get a decent usniversal broadband infrastructure in place it may be incumbent on the regulator to find some way of gauranteeing minimum QoS in relation to the operation of and access to essential services. But how that might be done in practice is a difficult question to answer.

Now I better get back to that overdue form filling...

The incredible shrinking public domain: James Boyle talk at ORGCon 2010

[ORGCon 2010] James Boyle: The Incredible Shrinking Public Domain from Open Rights Group on Vimeo.

ORGCON James Boyle Interview

ORGCON James Boyle Interview from Open Rights Group on Vimeo.

Robert Fisk on Tony Blair

I've been avoiding the UK press for the past few days because of the obsessive focus on the former prime minister, Tony Blair. But Robert Fisk's seething piece, Blair should take responsibility for Iraq. But he won't. He can't, in today's Independent is worth a read.

"Has this wretched man learned nothing? On and on, it went during his BBC interview...

Yes, "people" disagreed about the war. "People always want to look for a conspiracy." And – my favourite – "this debate will go on." But it's not a bloody debate – it's a bloody, blood-soaked disaster, for which Blair should take responsibility. But he won't. He can't...

It was the old story. Blair wasn't as bad as Saddam. And Blair's nicer than Hitler, more sympathetic than Stalin, kinder than Genghis Khan. Nope. This whole mess had nothing to do with Lord Blair. "You have to have the courage to do what you think is right." But "thinking" is not good enough. I hope the air-raid sirens in Isfahan are in good working order."

I just hope Fisk is wrong about 'this wretched man' having a significant influence in future over potential military adventures involving Iran.

US Muslims are ordinary people too

A Land Called Paradise - Kareem Salama - American Muslims

'Film Description

In December 2007, over 2,000 American Muslims were asked what they would wish to say to the rest of the world. This is what they said. A music video for Kareem Salama's "A Land Called Paradise."

Produced and directed by Lena Khan. A MAS Media Foundation Production.

Kareem is American born with Egyptian parents whose music style is a result of his unique upbringing in Oklahoma with exposure to US western and Native American cultures.'

Ireland opposes EU bid to give Israel access to personal data

One of the things that has concerned me for a long time about the decision making processes in the EU is their inherent opt out nature and the way that bureaucrats and their political bosses make plans and then go ahead with them as long as they are not actively opposed.  Regardless of how wide reaching these plans might be.  Proposals get rubber stamped, without due consideration, at high level committees because the members of the committees have neither the time nor the interest in scrutinising them in detail and this is particularly true when plans can be routed through committees that they are not really related to - as was the case with the various attempts to get software patents approved by sending them through agriculture and fisheries councils of ministers.

The latest controversial EU plan is to allow Israel access to sensitive personal data of EU citizens. The general rule is that sensitive personal data cannot be transferred to 'third countries', i.e. a country outside the EU, unless the country concerned ensures an 'adequate' level of data protection. The operation of the rule in practice has been severely criticised by privacy advocates for many years.  It is arguable for example that a number of the countries already on the approved EU  'third country' list, including the US despite their data safe harbour provisions, have data protection regimes that do not meet the minimum EU standards.

The inclusion of Israel on the approved third country list is a sensitive issue for Ireland at the moment, however, due to the reported use of forged Irish passports by an Israeli hit squad targeting a Hamas military commander earlier this year, in a hotel in Dubai.  Forged UK passports were also involved but there is no indication yet that the UK government are concerned about Israel becoming an approved third country.

Whether or not the Irish ministers suceed in temporarily blocking Israel's access to this data (and yes it will be only temporary) the dispute is no more than a blip in the vast ocean of the personal data collection/processing/use/abuse/pollution systemic mess that we face as a global society.  The way we and future generations deal with that mess is likely to be one of the defining features of the 21st century.

Gadget Show campaign on broadband speeds

The Gadget Show has launched a campaign to get ISPs to be more honest in their advertising about the real speeds that people can expect from their broadband services.  Ofcom and various consumer groups have complained to ISPs for some years about misleading adverstising but to little real effect. TV shows, fortunately or unfortunately, can have a power that transcends mere official regulators or civil society.  They seem, at least, to have more impact in rousing the masses to take an interest in a particular issue, so this particular campaign will be an interesting one to watch.

Perhaps Jason Bradbury (who my kids hugely admire and call "a big kid" with his seemingly boundless enthusiasm for technology) and his Gadget Show colleagues will have a little more impact than previous efforts to shift the communications companies' behaviour.

Incidentally, if you do have kids in the 9+ bracket, I can recommend Jason Bradbury's books, Dot Robot and Atomic Swarm. Fun adventure stories.

Hari Prasad released on bail

Hari Prasad has reportedly been released on bail. From Alex Halderman, Prasad's co-researcher:

FLASH: 4:47 a.m. EDT August 28 — Indian e-voting researcher Hari Prasad was released on bail an hour ago, after seven days in police custody. Magistrate D. H. Sharma reportedly praised Hari and made strong comments against the police, saying Hari has done service to his country.

Ed Felten says it's time for India to face its voting problems.

The unjustified arrest of Indian e-voting researcher Hari Prasad, while an ordeal for Prasad and his family, and an embarrassment to the Indian authorities, has at least helped to focus attention on India’s risky electronic voting machines (EVMs).
Sadly, the Election Commission of India, which oversees the country’s elections, is still sticking to its position that the machines are “perfect” and “fully tamperproof”, despite evidence to the contrary including convincing peer-reviewed research by Prasad and colleagues, not to mention the common-sense fact that no affordable electronic device can ever hope to be perfect or tamperproof. The Election Commission can no longer plausibly deny that EVM vulnerabilities exist. The time has come for India to have an honest, public conversation about how it votes.
The starting point for this discussion must be to recognize the vulnerabilities of EVMs. Like paper ballots, the ballots stored in an EVM are subject to tampering during and after the election, unless they are monitored carefully. But EVMs, unlike paper ballots, are also subject to tampering before the election, perhaps months or years in advance. Indeed, for many EVMs these pre-election vulnerabilities are the most serious problem.

Freedom of information request to Ofcom on Freeview, BBC DRM

I've just sent a freedom of information request to Ofcom via WhatDoTheyKnow.com asking for the submissions from the BBC, ITV and Channel 4 that proved conclusive in the decision to approve DRM for HD Freeview broadcasts. Copy below.

Dear Office of Communications,

I would like to make a freedom of information request for full and
complete copies of all the BBC, ITV and Channel 4 communications
with Ofcom relating to the Ofcom consultation 'Content management
on the HD Freeview platform' (Start date: 22 January 2010, End
date: 02 April 2010).

In particular could you send me:

(a) A full copy, including the redacted sections noted on page 1
and 7, of the 'BBC response to Ofcom consultation of 22 January
2010'
http://stakeholders.ofcom.org.uk/binarie...

(b) A copy of the BBC submission to Ofcom of 8 December 2009 on
this same matter

(c) Details supplied by Channel 4, not part of its formal response
to the consultation,
http://stakeholders.ofcom.org.uk/binarie...,
relating to specific content which, in its view, may be at risk in
the future if content management is not introduced and also those
titles which it believes are currently sensitive.

(d) A full copy of ITV communications with Ofcom relating to
'Content management on the HD Freeview platform'. ITV's submission
is not obviously available on Ofcom's webpage relating to the
consultation at
http://stakeholders.ofcom.org.uk/consult...

Thank you.

Yours faithfully,

Ray Corrigan

DRM Strikes Again: Samsung Blu-ray Firmware Update Means No Warner Or Universal Movies

This story struck a chord today, though my distaste for DRM is not a secret.

"owners of Samsung Blu-ray players have been discovering that the latest firmware update means that movies from Warner Bros. and Universal don't play. Instead, they just lock up thanks to the DRM built into Blu-ray."

My Panasonic DMR EX75 DVD recorder has decided it doesn't want to play my DVDs any more.

I tried to copy something from my HDD to a DVD, the first time I’ve ever attempted to do this.  After 2 hours of apparently copying the programme to the disc, the machine indicated the DVD disc was damaged and it had not copied properly. I pressed the ok button and removed the disc.

The system still registers that there is a disc in the machine even though there is not. Now it will no longer play any of my DVDs. It gives a clunking and whirring noise followed by a No READ error when I insert a movie DVD disc.

I've tried switching it on and off, unplugging the machine for 20 minutes and plugging it back in - standard simple fixes. The problem remains. If it is just a case of dust in the DVD head I'm not averse to lifting the lid and cleaning it.  The clunking and whirring, however, suggests the disk drive may need replacing - ridiculously expensive and a bit of a cheek that it should fall over the first time I try to copy to it from the HDD.  On the other hand if it is the DRM in the machine throwing a wobbly I'd be equally irritated.  In either case I've now got a less than fully functional HDD/DVD gadget sucking electrons out of the wall.  Any suggestions on possible simple fixes gratefully received.

Credit Blackpool supporters

I was at the Emirates Stadium for the Arsenal v Blackpool game on Saturday and just wanted to note how impressed I was with the Blackpool supporters.  They sang and cheered the whole way through the game particularly in the second half, even when their team was taking a pasting.  The 6-0 final scoreline could have been much higher if Arsenal could convert the chances they create at the same rate as rivals Chelsea or Manchester United.  Arsenal had 21 clear chances in the game.  By comparision Chelsea converted 6 from 10 chances two weekends in a row.

Yet despite the fact that their team were totally outclassed, the Blackpool supporters sang on about how it was their best day out ever and even cheekily critiqued the Arsenal fans with a chorus of "5-0 and you still can't sing".

Compare that to the Arsenal fans who were singing "Stand up if you hate Tottenham" to the same tune and it is clear which set of supporters are likely to being most enjoyment to football stadia this year.  My 11 year old was embarrassed about the hate chant and asked why Arsenal supporters disliked Tottenham so much.  I explained the history - Arsenal's move from Woolwich to Highbury, and the way in which Henry Norris the club chairman at the time managed to get Arsenal promoted at the expense of Spurs just after the first world war, despite the fact that Arsenal had only finished fifth in the second division.  My son's assessment -

"It's stupid that the supporters should still hate each other for that. It's stupid that football supporters should hate each other at all."

Smart kid. Being biased I would say that of course. In any case I just wanted to note my admiration for the Blackpool fans whose good cheer and positive attitude is to be commended most highly (as Hercule Poirot might say). 

It's worth noting too they had a point about the Arsenal fans not being able to sing.  It's been of concern to Arsene Wenger since the move to the Emirates stadium that the atmostsphere can be a bit dead on match days. The Arsenal authorities decided to try and improve that by renaming the stands and playing the music over the tannoy much louder than before on Saturday.  The thing is, the kind of folk who can now afford a seat at the Emirates (eg yours truly occasionally) are not necessarily comfortable with singing and cheering as part of a mob in public, whilst sitting in an ordered arrangement of modern padded seating well removed from the pitch.  A couple of teenagers not far from us, who lead the hate Tottenham chant, repeatedly, reinforced with expletives, yelled at the crowd to "sing up". They made clear their displeasure at not getting a response with further expletives, whilst parents (we were in the family enclosure) round and about did their best to protect their offspring from the bad language. 

Now kids love singing and it really shouldn't be too difficult to get them to sing - in the section of the crowd we were in - to support their team. And don't get me wrong, the crowd did manage occasional choruses expressing admiration for Arsene Wenger, Cesc Fabregas and the 'best team there's ever been'. But there really is something about the combination of the architecture of a modern football stadium, the natural reservedness of the kinds of people who can afford to frequent such venue, and the antagonistic attitude of the modern football supporter which we recoil from which can deaden the atmostsphere in the ground.  I don't know if it is something that can be fixed.  Maybe a strategically placed collection of cheerleaders with a fun Blackpool supporters' type approach could help.

Finally credit should also go to the Blackpool players who, despite being hammered and being down to 10 men after half an hour, battled on until the end, kept trying to play decent football and never resorted to the usual 'kick 'em off the pitch' tactics of many of Arsenal's opponents. Very well done to Blackpool football club and their supporters.

Evoting researcher arrested

In May this year, Hari Prasad, along with Alex Haldermann and Ron Gronggrijp, demonstrated the vulnerability of Indian evoting machines to fraud.  On Saturday Prasad was arrested, charged with the theft of an electronic voting machine.

On 12 August a group of prestigious evoting experts wrote to the Chief Election Commissioner of India explaining that "that India’s EVMs do not today provide security, verifiability, or transparency adequate for
confidence in election results." The Indian Election Commission has previously consulted Hari Prasad on how to improve the security of the voting machines.  The Commission now stands accused, however, of arranging Prasad's arrest.

Update: Comment from EFF.

"The Election Commission of India should have given researchers access to the voting machines in the first place. Rather than attempting to persecute Prasad and the anonymous source, the government should be focusing its attention and resources on the real problem: electronic voting machines with no mechanism for accountability."

Comment from Alex Halderman:

About four months ago, Ed Felten blogged about a research paper in which Hari Prasad, Rop Gonggrijp, and I detailed serious security flaws in India's electronic voting machines. Indian election authorities have repeatedly claimed that the machines are "tamperproof," but we demonstrated important vulnerabilities by studying a machine provided by an anonymous source.
The story took a disturbing turn a little over 24 hours ago, when my coauthor Hari Prasad was arrested by Indian authorities demanding to know the identity of that source.
At 5:30 Saturday morning, about ten police officers arrived at Hari's home in Hyderabad. They questioned him about where he got the machine we studied, and at around 8 a.m. they placed him under arrest and proceeded to drive him to Mumbai, a 14 hour journey.
The police did not state a specific charge at the time of the arrest, but it appears to be a politically motivated attempt to uncover our anonymous source. The arresting officers told Hari that they were under "pressure [from] the top," and that he would be left alone if he would reveal the source's identity.
Hari was allowed to use his cell phone for a time, and I spoke with him as he was being driven by the police to Mumbai:

[...]

If any good has come from this, it's that there has been an outpouring of support for Hari. He has received positive messages from people all over India.

Unfortunately, the entire issue distracts from the primary problem: India's electronic voting machines have fundamental security flaws, and do not provide the transparency necessary for voters to have confidence in elections. To fix these problems, the Election Commission will need help from India's technical community. Arresting and interrogating a key member of that community is enormously counterproductive."

Was lack of copyright one reason for Germany's industrial expansion?

Eckhard Höffner has produced an nominally interesting piece of research on The History and Nature of Copyright, reportedly comparing the state of copyright law and the market for books in the UK and Germany in the 18th and 19th centuries. Unfortunately English translations of the two volume treatise (each also sadly priced at 68 euros) are not available yet but there's a nice article in Der Spiegel about his thesis.

"Did Germany experience rapid industrial expansion in the 19th century due to an absence of copyright law? A German historian argues that the massive proliferation of books, and thus knowledge, laid the foundation for the country's industrial might...

Germany experienced an unparalleled explosion of knowledge in the 19th century.
German authors during this period wrote ceaselessly. Around 14,000 new publications appeared in a single year in 1843. Measured against population numbers at the time, this reaches nearly today's level. And although novels were published as well, the majority of the works were academic papers.

The situation in England was very different. "For the period of the Enlightenment and bourgeois emancipation, we see deplorable progress in Great Britain," Höffner states...

Even more startling is the factor Höffner believes caused this development -- in his view, it was none other than copyright law, which was established early in Great Britain, in 1710, that crippled the world of knowledge in the United Kingdom.

Germany, on the other hand, didn't bother with the concept of copyright for a long time. Prussia, then by far Germany's biggest state, introduced a copyright law in 1837, but Germany's continued division into small states meant that it was hardly possible to enforce the law throughout the empire.

Höffner's diligent research is the first academic work to examine the effects of the copyright over a comparatively long period of time and based on a direct comparison between two countries"

There's is nothing necessarily new in the idea that ignoring (or lack of) copyright lead to the widespread production and distribution of cheap books - Charles Dickens spent quite a while touring the US trying to get them to respect his copyrights.  But it is nice to see some reportedly rigorous empirical academic research being done on this.  Given my German is embarrassingly poor (or probably more accurately described as practically non existant) I'm going to have to wait for the English translation of the work before I can engage with it properly. On the Dickens situation it's worth noting that though he didn't get what he believed were his just financial rewards from publishing royalites in the US, apparently more than 20% of the value of his estate when he died had been derived from his speaking engagements on his final US tour.  There may or may not be a lesson there for modern creators.

Report: Health professionals involved in Bush administration torture

From GritTV:



"A recent study revealed that physicians with the CIA's Office of Medical Services were more deeply involved in torture than was previously thought--that doctors and psychiatrists actually helped interrogators design "enhanced techniques" that passed the Bush administration's requirements but would keep prisoners alive and without the severe physical injuries that even that regime admitted were torture."

Newport (Ymerodraeth State of Mind)

This is a clever parody:



If the recommendations of the Gowers review on "reforming copyright law to allow individuals and institutions to use content in ways consistent with the digital age" had been put in place it might even have been permissable under UK law. However, the law hasn't been changed to permit parody and YouTube got a takedown notice from EMI and duly deleted another neat piece of creative work built on contempory culture. (It might even be that the above version has been removed by the time most readers get here). There has followed the usual whack a mole game, as it gets taken down in one spot it gets put up elsewhere.

Another reminder, not that we needed one, that most of 20th and 21st century culture is unavailable as raw materials for modern creators to use.

Perfect 10 v Google: Google substantive win on safe harbours

The latest P10 v Google ruling has been issued by Judge Matz at the Central District Court in California.  It's largely a win for Google claiming safe harbour protections under the DMCA.  The section of the decision that stood out was the judge's outline of the amount of work Google would be required to do just to investigate whether there may have been copyright infringement of just one of the 70,000 or so images under dispute. (Section B, p9 - 25) Extracts below:

"A. Threshold Requirements for Safe Harbor Under All Three Sections 
...the Court concludes that Google employs an
adequate repeat infringer policy and practice...

B. Safe Harbor For Web and Image Searches Under Section 512(d)
(“Information Location Tools”)
As discussed above, in order to find the copyrighted work to which Figure 5
corresponds, Google would have to search through either the perfect10.com website or
through a folder containing over 15,000 P10 images that P10 had submitted with its June
28, 2007 DMCA notice. Poovala Decl. ¶ 50, Ex. N3.
Thus, in order to process a single allegedly infringing URL, Google would have to
go through at least eight steps—(1) review the cover letter; (2) review the spreadsheet;
(3) insert Disk I; (4) open the “ALL LARGE ARE P10” folder; (5) open the
“big.supereva.com” folder; (6) open the “amy large 2.png” file; (7) determine the image
URL for the image in that file notwithstanding that the URL was truncated; and (8) refer
to the folder sent with a separate DMCA notice containing the 15,000 P10 images in
order to find the copyrighted image that corresponds to the “amy large 2.png” file.
Google might have to complete this process for many, if not all, of the 70,000 distinct
files contained in the DVDs (including some files that each contain hundreds of pages of
images), as well as for the external hard drive submitted with Ex. N3, which contained at
least 46,187 pages of material. See Khan Decl. ¶¶ 6, 13, 19. This would be even more
onerous than the situation in CCBill, where the Ninth Circuit found it was improper to
require the defendant to “first find the relevant line in the spreadsheet indicating
ownership information, then comb the 22,185 pages provided by Perfect 10 in order to
find the appropriate image, and finally copy into a browser the location printed at the top
of the page—a location which was, in some instances, truncated.” CCBill, 488 F.3d at
1113.
At the hearing, P10 voiced its concern that this Court’s ruling would prevent it
from including collections of infringing images as supporting evidence for otherwise
valid DMCA notices. Not so; P10 remains free to include additional supporting
evidence, such as screenshots, with the material it submits to a service provider.
However, at a minimum, the essential elements of notification—the copyright owner’s
attestations of ownership, nonlicensed use, and veracity of the notice; contact information 
for the complainant; identification of the copyrighted work; and identification of the
infringing material (including the location of that material and if necessary, a specific link
under section 512(d))—must be included in a single written communication. Because the
Group C notices fail to provide all of this information in one place, they do not impute
knowledge to Google. Perfect 10 has therefore not raised a genuine issue of material fact
as to whether Google is eligible for safe harbor under § 512(d).

C. Safe Harbor for Caching Feature Under Section 512(b)
Google has moved for summary judgment that it is entitled to safe harbor under 17
U.S.C. § 512(b) for its caching feature. As discussed in footnote six, supra, it is
undisputed that Google’s servers do not store images found in its cache. The images
displayed on a cached page are made available to a viewer from their original source, if
they still exist at that source. CSUF(b) ¶ 7-8. Thus, P10's claims for infringement based
on images “located in” Google’s cache are really claims based on Google’s linking to
outside infringing content, and the preceding § 512(d) analysis applies. That analysis
concluded that Google is entitled to the § 512(d) safe harbor with respect to linking to
outside infringement for all of the Group A, all of the Group C, and some of the Group B
notices...
Court GRANTS Google’s motion for partial
summary judgment for its caching feature.

D. Safe Harbor for Google’s Blogger Service Under Section 512(c)... 
P10's only argument that Google has a right and ability to control infringing
activity on Blogger is that the infringing material is on Google’s servers and Google can
take it down after it has been uploaded by users. The mere ability of a service provider 
to remove content after it has been uploaded is insufficient as a matter of law to establish
the right and ability to control the infringing activity required by § 512(c)(1)(B). UMG
Recordings v. Veoh, supra, 665 F. Supp. 26 at 1112-13. P10 has not raised a triable
issue that Google has a right and ability to control infringing activity. Thus, the Court
need not consider whether Google receives a financial benefit from the alleged
infringement because it already meets the criteria for safe harbor under 17 U.S.C. §
512(c)(1)(B).
Thus, Google has demonstrated that it is entitled to safe harbor for its Blogger
service under 17 U.S.C. § 512(c) as a matter of law.

V. CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART
Google’s motion for partial summary judgment of entitlement to safe harbor under 17
U.S.C. § 512(d) for its Web and Image Search. The Court GRANTS Google’s motion for
partial summary judgment for its caching feature based on 17 U.S.C. § 512(d), without
having to assess whether it would be separately entitled to safe harbor under 17 U.S.C. §
512(b). The Court GRANTS Google’s motion for partial summary judgment of
entitlement to safe harbor under 17 U.S.C. § 512(c) for its Blogger feature.

Interesting decision and probably the first time I've ever seen full colour Windows screenshots (including a colour photograph) incorporated in a legal judgment.

XVIII International AIDS Conference: patents and access to medicines

The XVIII International AIDS Conference has been taking place this week in Vienna and I would recommend a terrific talk by Ellen ‘t Hoen, Senior Advisor UNITAID Medicines Patent Pool, 'A proposal for change: Managing patents to ensure access to AIDS medicines for all'

"Ten years ago, the world prepared to gather in Durban, South Africa, for the first International AIDS conferenceto be held on the continent most devastated by this terrible disease. At the time, the statistics were grim: only one in a thousand African people in need could get access to AIDS treatment, because the drugs were only available from originator companies who owned the patents on these medicines.  They came with a paralysing price tag of US$10,000 to US$15,000 per patient per year.

Through an immense joint mobilization of people living with HIV/AIDS and their organisations, their doctors and nurses, civil society, dedicated ministries of health, donor governments, and pharmaceutical companies, we have achieved today what most delegates at Durban thought impossible: access to AIDS treatment for more than 4 million people in the developing world...

The AIDS crisis and all its actors have caused a radical change in how we approach intellectual property in the field of medicine. This is reflected in legislative and policy changes, and changes in pharmaceutical companies’ business practices...

Before TRIPS, pharmaceutical patent policies and practices were diverse. For example, many countries did not consider patents on products such as medicines and food to be in the public interest and half of the countries actively excluded pharmaceutical (product) patenting altogether. This included a number of European countries such as Spain and Norway.

The WTO rules put an end to this when it required all member countries to introduce 20 year patents on medicines. As part of the WTO package, it was not possible for countries to opt out of TRIPS while becoming a member of the WTO, and the following years saw a wave of IP reforms in most developing countries to meet the requirements of the TRIPS Agreement. The policy space countries once enjoyed to design IP systems in line with their own development needs and priorities was rapidly shrinking...

In the late nineties, the potential effect of the changing IP rules on access to medicines was little understood, and interest in IP issues among the public health community was still rare.

A couple of things changed that:

In 1998, 39 drug companies and their representative body sued the new democratic South African government over amendments to its Medicines Act, which aimed to make low cost medicines more readily available. The companies asserted it was both unconstitutional and not compliant with the TRIPS Agreement...

Big Pharma vs. Nelson Mandela provided shock therapy. It was a call to action that pulled many different actors onto the stage.

In 1999 at the UN in Geneva, a group of NGOs and AIDS activists held a conference titled ‘compulsory licensing of AIDS drugs.’...

This caused a great deal of concern among the patent holders.

Thailand and Brazil were the first developing countries with AIDS treatment programmes that embraced the notion of universal access. They both heavily relied on the ability to produce low cost medicines in government facilities, illustrating the enormous cost reductions that could be achieved. (e.g., Thai fluconazole for 0.29 USD vs. 11 USD Guatemala negotiated price from originator, a 38-fold difference)...

Then, in April 2001 after a global and domestic public outcry under the leadership of the South African Treatment Action Campaign, the 39 drug companies dropped their case against the South African government. The landscape had dramatically changed. Access to medicines and the need to revisit the patent rules that govern them had become part of a larger political agenda and was no longer the exclusive domain of trade negotiators.

In November 2001, governments at the WTO Ministerial Conference – in an unprecedented move – adopted the Doha Declaration on TRIPS and Public Health. The Doha Declaration made clear that the TRIPS Agreement “can and should be interpreted and implemented in a manner supportive of WTO members' right to protect public health and, in particular, to promote access to medicines for all.” This represented the first significant push back to the relentless march to strengthen private IP rights without regard for societal consequences in poor countries...

The 500-word Doha Declaration on TRIPS and Public Health has been essential in making low cost medicines available on a large scale...

When India became compliant with TRIPS in 2005, it incorporated public health safeguards in its Patents Act...

The AIDS crisis has been an engine for change – not only in thinking about IP and Health -

• but also in the way health care is delivered through task shifting...
• in the role of civil society in decision making in global health...

Market competition for the early generation of generic ARVs resulted in prices per patient per year dropping by 99% over the past decade. Drugs that used to cost $10,000 per year are now widely available for $67 per year.

So, what is the problem?

First, the cost of treatment is increasing again because new AIDS medicines are likely to be patented in developing countries and thus more expensive. Even in India, the new ARVs are likely to be patentable...

Second, increasing numbers of people will need access to new generation treatments. These treatments in general are more widely patented and more expensive...

Third, we still need to expand access to first line medicines to people that do not benefit from them today...

Fourth, we need to be able to respond to new scientific knowledge and evidence; we need to find ways of making key products affordable and available on a wide scale...

Fifth, we are faced with a serious financial crisis that risks setting back the treatment achievements of the last 10 years."

It's a complex and hugely important story, very well told. We often hear of the "copyright wars" and entertainment industry struggles to protect their revenues. Indeed I've been pretty focussed on just that for the past couple of weeks, drafting a chapter on the Digital Economy Act for a book on the nature of information (a substantive draft of which I finally despatched to the editors yesterday, though all the tedious tidying up and formatting of references and bibliography etc. still need to be done). Yet this question of access to medicines is an illustration that the need for a balanced intellectual property landscape transcends stories of the hordes of the mass unwashed 'music thieves' on the internet and really can be a question of life or death. Highly recommended.

Mark Thomas on the then Digital Economy Bill

I'm writing a chapter on the Digital Economy Act for a book on the nature of information and was reminded of Mark Thomas's excellent assessment of the then bill in February this year: