NLA v Meltwater thoughts

I've now read the NLA v Meltwater judgement issued by Mrs Justice Proudman in the UK High Court last Friday.  Despite the bitterness, spin and mud-slinging on both sides of the dispute, which was so bad the judge explicitly referred to it in her decision (paragraph 23), the case seems like a bit of a storm in a teacup that really shouldn't need a court to sort it out. Having said that I can understand why, given the uncertain future they are facing, the newspaper industry chose this case in an attempt to put down a marker.

Meltwater provides an electronic press cuttings service, via email and/or a website, to PR agencies interested in being alerted when their clients are in the news. The newspapers and their licensing agency, the NLA, want Meltwater's clients to pay them as well as Meltwater for the service. Both Meltwater and the PR agencies trade organisation the Public Relations Consultations Association (PRCA) were sued. The court only had to decide whether the PR agencies receiving Meltwater's electronic press cuttings needed to pay for a web end user licence (WEUL) from the NLA i.e. did they need the newspapers' permission to receive Meltwater's services, irrespective of whether Meltwater had a licence to provide such services.

"6. The issue I have to determine is whether PRCA and its members ("the End Users") require a licence from the claimants in order lawfully to receive and use Meltwater News. Such a licence is known as a Web End-User Licence ("WEUL"). Although I have defined PRCA and its members as the End Users they are not necessarily the ultimate users of the service in the sense that members (at any rate those members who are not in-house consultants) obtain the information from Meltwater News for external clients."

Meltwater does not currently have a 'web database licence' (WDL) from the NLA to provide the press cuttings service.  The company's position is that current law does not require them to hold such a licence but even so they would still be prepared to pay for one on terms agreed as reasonable by the Copyright Tribunal.  The High Court was not required to rule on this issue. The details are currently the subject of a dispute between the parties at the Copyright Tribunal.

At this point the average 21st century reader could be forgiven for scratching their head and asking why pay Meltwater or the NLA when you could get equivalent functions for free via Google alerts, other search engine facilities, newsreaders and a range of other accessible web tools. (The judge suggests as much at paragraph 20). Well seemingly the aggregation service provided by Meltwater has significant value to their clients.

It's probably worth noting that the judgement does not say, as widely reported, that weblinks are protected by copyright law; or that aggregated links would infringe copyright without a licence.  But it does seem to suggest that the copying of a combination of

1. aggregated headlines provided as links and
2. text extracts from the associated articles

of the quality exhibited in this case - "elements which are the expression of the intellectual creation of the author" - would be infringement.  The decision also seems to suggest that basic use of the web does involve copying sufficient to trigger prima facie copyright infringement.  So a link does not attract copyright protection unless the text the link is of such originality as to exhibit "elements which are the expression of the intellectual creation of the author". But the act of clicking on the link thereby copying the linked page onto the end user's computer is prima facie copyright infringement. Likewise opening an email client to collect emails.  Questions then arise as to whether there are permissable defences and whether the process is transient and necessary for a technological process etc. but the implications of the decision seem to be that clicking is infringing, whatever justifiable subsequent defence might arise.

Contrast this with an old style photocopy/print based press cuttings service - the end user receiving a collection of press cuttings in the post would not be implicated in infringement (save possibly via inappropriate inducement) since the copying would have been done by the company sending the cuttings.

The judge describes the Meltwater service at paras 26 - 27 and the nature of the dispute in paras 45 - 55

1. Meltwater News will (subject to the constraints of length to which I later refer) include the following three items: 
 •    A hyperlink to each relevant article ("the Link"). The Link is a citation of the headline ("the headline") from the article. A click on the Link takes the customer through to the article as it appears on the Publisher's website. 

•    The opening words of the article after the headline ("the opening text"). 

•     An extract from the article ("the hit extract") showing the context in which the agent appears. This will reproduce the agent and some words immediately preceding and following it. 

1. Thus, subject to length constraints, the total text extracted from the article on the Publisher's website ("the text extract") comprises the headline, the opening text and the hit extract. Under the terms of the WDL, any text extracted from an article generated using scraping techniques must not exceed 256 characters, which it is common ground means 256 characters excluding spaces...
2. NLA contends that in the absence of consent the End Users of Meltwater's service will have infringed copyright in the Publishers' headlines, and/or the Publishers' articles and/or the Publishers' databases in three ways:
3. PRCA asserts that it has an overarching argument which defeats NLA's claim. It compares the service under consideration with the old press cuttings service in this way. A cuttings service requires the provider to take a licence for making copies of the articles for distribution to its customers. The recipients do not need a licence simply to receive the cuttings. Their licence is required to enable them to make further copies for internal or external purposes. Mr Silverleaf submitted that, on a proper analysis of the electronic process, the PRCA members merely receive Meltwater's services; there is only one copy inherent in the process, which is the copy sent by Meltwater to the End User. It is common ground that when one speaks of going to a website it is in fact the website which comes to the user. The submission is that whether access to the Meltwater Newsletter is by email or on Meltwater's website, there is in each case a single copy sent by Meltwater and accessed by the End User.
4. As a further plank in the argument, Mr Silverleaf submits that once Meltwater is licensed, it is a derogation from grant to require an End User to take a licence as well. Mr Howe counters by saying that this ignores the fact that the WDL's terms are limited to providing services to customers who themselves have a licence. He relies on s. 119 (3) of CDPA which provides that a scheme which has been referred to the Tribunal under s.119 shall remain in operation until proceedings on the reference are concluded. In other words, the provision limiting the licence to services provided to those who also are licensed is binding unless and until the Tribunal determines otherwise.
5. Mr Silverleaf ripostes with the argument that the terms of the licence are a matter of contract only. The issue is one of copyright law. Once Meltwater is licensed, it must be licensed to provide services; that necessarily imports the requirement that its customers must be entitled to receive them. To quote paragraph 12 (c) of PRCA's defence, the WDL
6. I agree with Mr Silverleaf to this extent only. If the End Users do not need a licence for what they do, then no contractual term can alter that position. It is a matter for the Tribunal about which I can and do make no binding finding. However I see the common sense of the argument that if the End Users do not need a licence it would deprive the WDL of all or most of its force if Meltwater could only supply services to licensed End Users.
7. However the issue is not to my mind one of derogation from grant or exhaustion. The outcome hinges on the answer to the very question which I am asked, namely whether the End Users need a separate licence for their activities in relation to Meltwater's services. It cannot be the answer to that question that a mere grant of a licence to Meltwater would obviate the need for a WEUL.
8. If the PRCA members are making copies of copyright material there can be no exhaustion. A licence to provide a service may import an implied licence to receive it, but it cannot import an implied licence to make further copies of licensed material. If the PRCA members are not making any copies, then there is no scope for a WEUL. In either case it becomes a matter for the Tribunal to decide whether it is unreasonable to grant a WDL only on terms that Meltwater supplies to customers with WEULs, although I think it is accepted by NLA that if the End Users do not require a licence NLA would have to fall back on its alternative claim for a larger fee from Meltwater calculated on a different basis.
9. In my judgment Mr Silverleaf's argument that there is only one copy faces the considerable difficulty that the defendants themselves admit (see paragraph 5.1 of the Defendants' response to the Claimants' Statement of Facts) that End Users make a copy of Meltwater News on their computers. I quote,
10. Again, it is expressly admitted in paragraph 10 of PRCA's amended defence that when an End User receives the Meltwater Newsletter by email or accesses it via the Meltwater website "a copy is made in the memory of the end user's machine." In paragraph 11 it is expressly admitted that "a copy of the Meltwater Newsletter is also made by the end user's machine when the [Meltwater Newsletter] materialise[s] on the end user's screen in order to be viewed."
11. Thus irrespective of whether or not End Users copy text extracts to their clients PRCA admits that receipt of Meltwater News involves copying by the End Users on their computers of material which has already been reproduced by Meltwater.
12. In these circumstances the derogation and exhaustion arguments fail.

In paragraphs 52 to 55 it seems as though the judge is missing the nature of the technology. Data is generated, processed, transmitted, copied and stored when do anything on the web or with a computer.  When we receive a printed copy of a press cutting in the post we do not copy anything.  To receive an electronic copy of the same press cutting over the internet, either in an email through opening a mail client or through clicking on a weblink, we have our computer copy the file or at least reconstruct it from the data packets that it has been split between and sent in over the Net. We cannot receive the file electronically without 'copying' it. Which raises the question again of whether copyright is now focussed on the wrong things, even (and especially) if the judge is right and receiving email or clicking on a weblink is prima facie copyright infringement.

Paragraphs 56 to 86 cover the question of whether the cuttings collected by Meltwater are copyright works.

"Are the text extracts or any part of them copyright works?
1. It is not disputed that copyright subsists in the full articles (as literary works) published in the Publishers' publications. One issue is whether a headline is, or is capable of being, a free-standing original literary work. Secondly, there is the question whether a text extract constitutes a 'substantial part' of the article as a literary work. I deal with these issues in turn."

In Paras 57 to 72 the judge relies on the ECJ Infopaq case (2009) to hold that headlines can have copyright protection.  She also discusses the Australian Fairfax case (2010) where it was decided that headlines as a general class could not attract copyright protection ("too trivial to be a literary work"), though some exceptional headlines might be worthy of copyright protection ("It may be that evidence directed to a particular headline, or a title of so extensive and of such a significant character, could be sufficient to warrant a finding of copyright protection"). The ECJ decision, however, trumps the Fairfax decision - as a matter of principle, Judge Proudman says, the Infopaq originality test "is now the only real test" - i.e. whether the headline/extract is an original  intellectual expression of the author rather than whether the it constitutes a substantial part of the author's work. The result in Infopaq was that 11 consecutive words could attract copyright protection.

My puzzlement with this part of the decision is not that Justice Proudman relies on Infopaq - that's a logical approach regardless of the problems with the Infopaq decision - it is in the leap from the reasoning of the Infopaq focus on "elements which are the expression of the intellectual creation of the author" to the conclusion that "headlines are capable of being literary works".  The judge had accepted witness submissions/statements to the effect that newspaper headlines are not the creations of the authors of the articles but teams of people or editors who work for the paper.  I can't therefore see how it can be concluded that the headline is an element which is the expression of the intellectual creation of the author, when the author has not written/created the headline; albeit that it is dreamed up by another creator/creators based on the substance of the article written by the original author.  Yet the judge uses a combination of Infopaq and the defence argument that the headline is part and parcel of the article rather than a copyrightable entity itself to conclude that headlines can be copyrighted.

"73. The next question is whether the text extracts constitute a substantial part of the articles so that s. 16(3) CDPA applies, as construed in conformity with the InfoSoc Directive."

Paras 73 to 86 say text extracts are protected by copyright and this is a more straightforward and defensible analysis based mainly on Infopaq and the NLA v Marks & Spencer case of 2001.

Para 87 to 92 deal with the database infringement issue:

1. As far as I can see all the acts of infringement relied on against PRCA's members relate to the contents of the articles. There is nothing suggesting infringement of the arrangement or structure of the website as a database. It is untenable on the case as presented by NLA to suggest that a text extract is a copy of a substantial part of the effort that went into the structure and arrangement of the articles within the website.
2. I therefore do not find that the End Users need a licence to avoid infringement of the Publishers' websites as databases. I say nothing which affects the position one way or the other in the case against Meltwater.

End users don't infringe NLA database rights.

Paras 93 to 100 deal with infringement by accessing the Publishers' website through Meltwater News

100. ... There is undoubtedly however a tension between (i) complaining that Meltwater's services result in a small click-through rate (ii) complaining that a direct click to the article skips the home page which contains the link to the terms and conditions and (iii) asserting that the End Users are commercial users who are not permitted to use the websites anyway.

Agreed.

Paras 101 to 105 suggest prima facie infringement in this case.

Prima facie infringement
1. When an End User receives an email containing Meltwater News, a copy is made on the End User's computer and remains there until deleted. Further, when the End User views Meltwater News via Meltwater's website on screen, a copy is made on that computer.
2. Therefore the End User makes copies of the headline and the text extract in those two situations and there is prima facie infringement.
3. When an End User clicks on a Link a copy of the article on the Publisher's website which appears on the website accessible via that Link is made on the End User's computer. It was (I believe) said by PRCA that owing to the factors considered under the previous heading there was an implied licence to copy articles directly from the Publishers' website. The argument on this head was, as I have said, a broad brush argument, and not presented as clearly as I would have liked. However it seems to me that in principle copying by an End User without a licence through a direct Link is more likely than not to infringe copyright.
4. An End User who uses the share function to forward a headline Link (and, a fortiori, an End User who simply forwards an email) to a client will make further copies and thus further infringe. Such forwarding will also be issuing a copy to the public under s. 18 CDPA.
5. As there is prima facie infringement I must therefore go on to consider the exceptions provided for in CDPA.

As I said above opening an email client or clicking on a weblink makes a copy.  That is the way the technology works.  We cannot get email or view webpages through browser without making a copy. Virtually everything we do with computers and the web involves making a copy.  If that triggers copyright law then we have a problem. At 104. end users who forward the Meltwater News are making further copies and I can understand the argument that this might be infringing; but receiving emails and clicking on weblinks?

Paras 106 to 112 deal with the question of whether the temporary copying exemption under article 5(1) of the copyright and related rights directive, Directive 2001/29, applies. The directive is referred to as the 'InfoSoc Directive' in the judgment. Basically the answer is no since it is designed to protect ISPs making temporary copies in transmission, not end users.

Temporary copying
1. First there is the exception contained in s. 28A CDPA. In Infopaq at [54] the ECJ set out the five requirements that must be fulfilled before the exception can apply. They are: (i) the act must be temporary, (ii) it must be transient or incidental, (iii) it must be an integral and essential part of the technological process, (iv) the sole purpose of the process must be to enable a transmission network between third parties by an intermediary or the lawful use of the work or protected subject matter; and (v) the act must have no independent economic significance. In addition, the ECJ also said at [61]-[64] that (vi) the act of making the temporary and transient copy must not exceed what is necessary for the proper completion of the technological process and (vii) the storage and deletion must not be dependent on human intervention; it must be automated.
2. PRCA allege that any acts incidental to browsing are comprised within the exception and it relies on recital (33) of the InfoSoc Directive which allows "acts which enable browsing as well as acts of caching to take place". However, the exception only applies (according to the express provisions of recital (33)) to the extent that the acts enabling browsing and caching meet the conditions previously set out in the recital. Those are the conditions referred to by the ECJ in Infopaq.

In the UK context Para 108 discusses Football Association Premier League Ltd v QC Leisure [2008] EWHC 1411(Ch) case where the "exception is concerned with transient copies which have no value in themselves and which do not prejudice the rights holder by interfering with the normal exploitation of the work."

1. Thus the temporary copies exception is solely concerned with incidental and intermediate copying so that any copy which is 'consumption of the work', whether temporary or not, requires the permission of the copyright holder. A person making a copy of a webpage on his computer screen will not have a defence under s. 28A CDPA simply because he has been browsing. He must first show that it was lawful for him to have made the copy. The copy is not part of the technological process; it is generated by his own volition. The whole point of the receipt and copying of Meltwater News is to enable the End User to receive and read it. Making the copy is not an essential and integral part of a technological process but the end which the process is designed to achieve. Storage of the copy and the duration of that storage are matters within the End User's control. It begs the question for decision whether making the copy is to enable a lawful use of the work. Moreover, making the copy does have an independent economic significance as the copy is the very product for which the End Users are paying Meltwater.
2. The exception cannot have been intended to legitimise all copies made in the course of browsing or users would be permitted to watch pirated films and listen to pirated music. The kind of circumstance where the defence may be available is where the purpose of the copying is to enable efficient transmission in a network between third parties by an intermediary, typically an internet service provider.
3. The exception cannot be used to render lawful activities which would otherwise be unlawful. On the contrary, the purpose of Articles 2 and 3 is to ensure that copyright is protected against all forms of electronic copying unless falling within the narrow scope of the exceptions in Article 5.
4. I therefore find that s. 28A CDPA (construed in accordance with Article 5 and recital (33) to the InfoSoc Directive) is inapplicable to permit the End Users to make copies with impunity.

Most of the rest of the decision is given over to an analysis of fair dealing under section 30 of the Copyright, Designs and Patents Act the context of the case (paras 113 to 147).  The defendents argue that the a broad interpretation of article 10 of the Berne Convention ("It shall be permissable to make quotations...") gives them a get out.  Justice Proudman rejects this.  Firstly because the InfoSoc Directive implements article 10 and can't be interpreted that loosely.  Secondly Article 10 of Berne has no direct effect in English law and can't displace the clear language of the English statute, section 30 of the Copyright, Designs and Patents Act. Thirdly the Court of Appeal has clearly, recently (within the last 12 years) and allegedly consistently interpreted s30 in a way which rejects the defendants' argument and such precedent is binding. (I'd argue that they haven't exactly been consistent in that the different preciding judges have come to the same answer through different routes and criticised each other's reasoning; but that's another issue).

Paragraphs 124 - 129 look at whether the defendants can argue the copying - receipt of email or visiting webpage - by PR agencies (Meltwater clients) can be considered copying for the purpose of criticism or review.  Not surprisingly the answer is no.  The Meltwater press cuttings are alerts to enable their clients to decide whether it is worth reading the original newspaper article (the judge also says this later at par 131) and not used for traditional critiscism or review.  Even if they could show criticism or review they would still have to show fair dealing i.e. the copying/use does not conflict with a normal exploitation of the work and not unreasonably prejudice the legitimate interests of the rightsholder.

The remainder of the fair dealing analysis is relatively straightforward, though I intersperse a handful of observations on the remaining paragraphs below.

Fair dealing

1. Even if the End Users were to establish that their use of the Publishers' copyright fell within criticism, review or reporting current events PRCA would have also to show that it constituted fair dealing. Article 5(5) of the InfoSoc directive provides that the exceptions:

"…shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder."

Similar provisions are contained in Article 9(2) of Berne, Article 13 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and Article 10(2) of the World Intellectual Property Organisation Copyright Treaty and explanatory Statement (WIPO).

131. It seems to me that the only purpose in copying the text extracts is to enable the End User to choose whether or not to read the underlying articles. Without those extracts, he would have no option but to go to the articles themselves. But for the existence of Meltwater and similar businesses, End Users that wanted to monitor press coverage would have to do so by going directly to the Publishers' websites or by using a free alert service or search engine...

1. In NLA v. Marks & Spencer, Peter Gibson LJ, in deciding that there was no defence under s. 30(2) because there was no public reporting of a recent newsworthy event, said (at 271),

"I can see no public interest reason why the legislature should want to provide a defence to an infringement of copyright for the copying within a commercial organisation for commercial reasons of material subject to copyright, whereas a public interest can be discerned in the public reporting of newsworthy current events."

However, he went on to decide that if he was wrong about that (that is to say, if the dealing had been for the purpose of reporting current events) he would incline to the view that the dealing was fair dealing. In that connection he cited Aldous LJ Hyde Park Residence Limited v. Yelland [2001] Ch 143 and Pro Sieben.

Interestingly enough, though the judge can see no public interest in allowing commercial copying, this is not as clear cut as it is often assumed to be for reasons addressed in the Consumer Focus paper published earlier this week, The economic impact of consumer copyright exceptions. We make a point in that paper of distinguishing economic damage to rightsholders from consumer value.  And when commercial interests, through new technology, generate new markets not currently exploited by (or visible to) rightsholders, they are arguably acting in the public interest if rightsholders show no inclination to develop such markets; and at least in no less reprehensible a manner than the recording industry did in its early incarnations in the early 20th century, much to the chagrin of composers of the time.

The way to think about this is that people get more value out of music CDs if they are permitted to copy them to their MP3 players, something currently prohibited by UK copyright law, (though the law is widely ignored).  Music labels might prefer consumers to buy an extra electronic copy of the music for our digital players but that argument amounts to asking for more money because people have found a new way to enjoy music they have already paid for.  Likewise a furniture store does not suffer economic damage when someone buys a new flatscreen TV thereby getting more value out of their old sofa.  The specific example in the newspaper/music context that might demonstrate a public interest in allowing commercial copying is the MP3.com service, which though shut down by the US courts basically enabled anyone to play music they had legitimately purchased from any computer with an internet connection that they had access to.  The latest version of MP3.com, MP3tunes cloud music locker service is currently being sued by EMI for massive copyright infringement.

The whole area of consumer value and economic damage to rightholders is hopelessly misunderstood in the copyright debates; the public interest is largely ignored and needs to be put front and centre of the shaping of the future copyright landscape; whereas the whole issue of commercial interest is confused.

1. Chadwick LJ decided, to the contrary, that copying of articles within Marks & Spencer which had been supplied to it by a licensed cuttings agency was copying "done for the purposes of reporting a "current event" to those within the defendant's organisation who have a commercial need to be informed of it." However he went on to decide that the reporting of such current events for the defendant's internal purposes was not fair dealing. He said (at 280),

"…a dealing by a person with copyright work for his own commercial advantage- and to the actual or potential commercial disadvantage of the copyright owner- is not to be regarded as a fair dealing unless there is some overriding element of public advantage which justifies the subordination of the rights of the copyright owner. In my view, it was the recognition that the property right conferred on the copyright owner by the 1988 Act and its statutory predecessors -and which, subject to the provisions of the Act, the copyright owner is entitled to protect and exploit- should yield, in appropriate circumstances, to an overriding public interest in the promotion of research or private study, in the publication of comment or criticism, or in the reporting of current events which led Parliament to include the fair dealing provisions in the legislation. I can see no reason why Parliament should have intended, in the absence of some overriding element of public advantage, to permit one person to deal with copyright work, to his own commercial advantage and to the actual or potential commercial disadvantage of the copyright owner; and no reason why what would otherwise be an infringement of the rights of the owner of copyright in typographical arrangement should be permitted. Simply because the particular commercial advantage to be obtained was a more convenient (or less costly) means of disseminating reports of current events within a commercial organisation by the circulation of facsimile copies of press cuttings.

There is no suggestion, in the present case, that there is any element of public advantage in the use which the defendant makes of the press cuttings copied and circulated by its internal press offices. I would hold that the provisions of section 30 (2) of the 1988 Act have no application in the present case."

134. Mance LJ also held that the defendants would be in difficulty in relying upon the subsection because they were copying a significant part of an otherwise protected arrangement for essentially private commercial reasons.

1. Mr Silverleaf urged me to ignore these observations on the basis that the members of the Court based their decisions on different findings about s. 30 CDPA and that those findings were inherently contradictory. However, all the members of the Court of Appeal held the view in common that s. 30 (2) did not apply to commercial, non-public, user. To use Mr Howe's expression, although they did not all speak with one voice as to the reasoning, they were unanimous as to the result. When that decision is combined with the passages I have quoted from Ashdown, the Court of Appeal's decision about the scope and effect of s. 30 is, to put it at its lowest, very persuasive indeed, and I propose to adopt it.
2. However Mr Silverleaf further submitted that dealing was fair in this case in that there is no actual or potential commercial disadvantage to the Publishers in the End Users' receipt and use of Meltwater News. He contended throughout that the service provided by Meltwater provides a different service to that provided by the Publishers. The End Users pay for Meltwater's search and analytical services and not for access to the original content, which is obtained only by visiting the Publishers' websites themselves. Further, a directed search such as the End Users obtain from Meltwater will inevitably lead them to the Publishers' websites in circumstances where they would not otherwise access them. Meltwater's services thus complement the Publishers' websites, they do not compete with them.

1. Again, I find NLA's argument has an element of artificiality in that it says that as commercial users the End Users are not permitted to use the Publishers' websites anyway. However it seems to me that I should deal with the matter on an alternative basis.
2. If NLA is correct and there is no implied licence to access the website directly, then the End Users are being permitted, indeed encouraged, to do something via the Meltwater service that they ought not to do. It is hard to see how that is fair dealing.
3. If on the other hand the End Users are permitted to access the website directly, Mr Silverleaf's argument takes insufficient account of the fact that the text extracts contain direct quotations from the words of the articles (including the whole of the headline) for the express purpose of enabling the End Users to decide whether or not the articles themselves are worth reading.
4. I also have regard to the scale of the use which is being made of the work. Mr Glittenberg provided no direct statistical evidence about Meltwater's operation in terms of the number of text extracts supplied to its clients. However, extrapolating from the rough figures provided by Mr Ellis of PRCA, it would seem that a single End User could well receive (and copy) text extracts from some 50,000 articles per annum.

In a way, although it is a short throwaway comment buried behind a lot of involved and complex analysis, I get the impression that the scale of the operation - a single Meltwater client might get extracts from 50,000 articles a year - is what ultimately leads the judge to conclude there is end user infringement here. The scale is just too big for fair dealing.

1. It therefore seems to me that, even if I am wrong about the inapplicability of the basic provisions of s. 30 CDPA, there is no fair dealing in copying Meltwater News.

The use must be accompanied by sufficient acknowledgment
1. However, even if I am wrong about all the foregoing in relation to s. 30 CDPA, PRCA is faced with the requirement for sufficient acknowledgment as defined in s. 178 CDPA. The requirement to identify the author is an absolute one (see also Article 5 of the InfoSoc directive) unless the work is published anonymously.
2. It is common ground that unless the Publishers 'tag' the names of the authors of their articles the authors are not named in the Meltwater News text extracts.
3. It is asserted in the defence that the author is identified "to the extent that is technically possible" (see paragraph 26(d)) but what is meant is that Meltwater's software does not enable the author to be identified automatically. That is not the same thing at all. Mr Silverleaf went so far as to say that the Publishers can hardly complain about Meltwater's failure to identify the author if his name is not tagged in such a way as to enable Meltwater's systems to identify it automatically. However, inconvenience is not impossibility and the criticism of the Publishers in this regard is misplaced.
4. I think Mr Silverleaf realised the difficulty of his argument in the face of the uncompromising wording of s.178 CDPA. He therefore went on to contend that the Link provides a sufficient acknowledgement in the same way as a footnote in a critical review. He pointed out that s.30 (2) merely requires as a condition of fair dealing that the use be "accompanied by" a sufficient acknowledgment. Article 5 paragraphs 3(c) and (d) require an acknowledgment "including" the author's name, and s.178 defines sufficient acknowledgment as "identifying" the author.
5. I do not accept that argument either. The Link directs the End User to the original article. It is no better an acknowledgment than a citation of the title of a book coupled with an indication of where the book may be found, because unless the End User decides to go to the book, he will not be able to identify the author. This interpretation of identification of the author for the purposes of the definition of "sufficient acknowledgment" renders the requirement to identify the author virtually otiose.
6. This is, I accept, a technical reason for holding that the exception in s.30 CDPA does not apply but, technical or no, it seems to me that there is no answer to it.

I agree with Justice Proudman that the acknowledgement issue is more complicated than it seems.  There is little doubt that both the CDPA s178 and the InfoSoc Directive Article 5(3)(c) indicate an absolute requirement to identify the author.  But it would appear that both the newspapers and Meltwater would be implicated in failing to identify authors in certain instances.

Conclusion
1. In all the circumstances I find that without a licence from the Publishers there is infringement of the Publishers' copyright by the End Users in receiving and using Meltwater News.

So the PR agencies do need to pay the newspaper industry as well as Meltwater if they wish to avail themselves of Meltwater's electronic press cuttings service. Interesting case but as I suggested above, before spending longer thinking about it than I originally intended, something of a storm in a teacup.

Update: Meltwater is appealing the decision.
Update 2: IPKat characterises the case as the tip of the iceberg on media monitoring and copyright licences.

Consumer Focus Report

Consumer Focus has just published a report that Mark Rogers, Josh Tomalin and I wrote on the The economic impact of consumer copyright exceptions. Executive summary:

"Advances in the technology available to consumers have fundamentally altered the relationship between authors, rights-holders and consumers with regard to copyrighted creative works. The copyright system in the UK is undergoing a gradual process of reform to reflect this new reality.

In 2006, Andrew Gowers, a former editor of the Financial Times, presented a report into the state of intellectual property in the UK. Among his policy recommendations were three proposed changes to the copyright exceptions system which alter the way in which consumers can interact with copyrighted works. Gowers proposed introducing copyright exceptions for:

• Format shifting, for instance the transfer of a piece of music from a CD to an mp3 player. 

• Parody, caricature and pastiche. 

• Creative, transformative or derivative works. In our context, this definition includes user-generated content.

Our review examines the existing literature on the possible economic effects of these proposed changes to the copyright exceptions system, specifically whether the introduction of these proposed changes would cause economic damage to rights-holders. Whilst the economic issues surrounding copyright infringement via file-sharing and commercial „mash-ups‟ are interesting and important, our review is focused solely on copyright exceptions as they relate to non-commercial, consumer activities.

Investigating potential economic damage to rights-holders requires an analysis of how consumer copyright exemptions could affect the demand for the original creative work. The processes via which consumer copyright exceptions influence the demand curve for original creative work can be complicated. This said, a standard analysis of the demand for creative works must assume that consumers incorporate the benefit of copyright exceptions into their demand. A consumer‟s decision to purchase is based on the benefits of the product, including – in the case of creative work – the value of any copyright exemptions. In this sense, it can be argued that a creator automatically extracts value from copyright exceptions, since these directly influence the demand for the original creative work.

In our review, the two most commonly cited „economic‟ studies into the effects of Private Copying Remuneration (PCR) systems – Econlaw (2007) and Nathan Associates (2006) – do not provide any useful evidence that consumer copyright exceptions cause economic damage to rights-holders, or that a copyright levy is justified on these grounds.

The Econlaw study incorrectly equates economic damage with consumer value and does not contain a formal discussion of the demand for copyrighted works. The Nathan Associates study does not make a necessary distinction between 'damage to consumers and producers' and 'damage to society as a whole'. It likely overstates the economic damage caused by PCR. It also uses estimates for demand elasticities that do not come from formal economic analysis.

The economic evidence that format-shifting, parody and user-generated content cause any kind of economic damage to rights-holders simply does not exist. Arguments that support tighter copyright law, or support PCR systems, tend to confuse economic damage with consumer value. Any future analysis on this issue needs to investigate the conditions under which the proposed consumer copyright exceptions would have any impact on demand for creative work."

Freedom to tinker and my Panasonic DRM again

A few weeks ago I mentioned the saga of my Panasonic DMR EX75 DVD recorder with the dodgy DVD drive was eventually resolved. Long story short - after many comings and goings Panasonic supplied a new drive free of charge though earlier repairs diagnosis by the local Panasonic approved repair centre, J.F. Associates, amounted to just under £120.

Ok then the machine starts playing up again, this time refusing to record properly or even pick up the digital freeview signal. I followed up on the initial suspicion of a problem with digital TV transmitter in Oxford. But the website continued to say there are no problems with the TV signal.  The question was should I go back to J.F. Associates for another £58.75 diagnosis or take the lid off and have a quick look for any obvious problems in the innards myself?

Many years ago, when working with a great bunch of people in industry (now GKN then Lucas Aerospace), I spent quite a few years building and operating bespoke flight simulation rigs and testing aircraft parts to destruction with them (great fun). So spotting a dodgy resister or two shouldn't be beyond me and any further subtantial spending on this box of electronic tricks is pretty much geting beyond the point of diminishing returns.

Lifting the lid was fairly straightforward though the green PCB had to be disconnected and carefully removed too before finding the problem in the main board immediately below it.

As it turns out it wasn't a blown resister but a blown capacitor and sure enough a quick Google search throws up an extremely helpful thread from AVForums demonstrating a number of other people have had precisely the same problem. Over-stressed capacitors, it seems, are a common cause of failure.

I hope they won't mind me posting their images here (all three are from the forum). My capacitor wasn't quite as badly domed as the one in these photos but it was pretty clearly out of commission.

In any case I sourced a replacement capacitor from Charles Hyde & Son for £1.02 and since I didn't possess a soldering iron, not having wielded one in anger for some years, got one of those too. Farnell sold a usable alternative capacitor for £0.22 but needed a minimum order of £20.

Snipping off the busted capacitor and replacing it sorted out the signal problem and actually improved the quality of the freeview reception on the machine which had been deteriorating for some time. Just one extra thing to note on top of the extremely useful practical advice on the forum - if you're thinking of tackling something like this, be sure to snip the legs of the capacitor quite high up, so that you have a solid base to crimp the legs of the new capacitor to before soldering.

The latest problem with the Panasonic got me thinking about the freedom to tinker issue again. I could probably have replaced the DVD drive too if Pansonic had agreed to send one. Yet I suspect it would have been extremely unlikely that they would have done so free of charge without the official diagnosis from the approved service dealer, J.F Associates.  Another diagnosis of the freeview signal problem would have cost another £60 or so - and I'm certainly not knocking the very helpful folks at JF Associates for that, they have to make a living after all and I never would have had the DVD drive replaced without their help - but this time it was a pretty simple problem.  Yet as GavTech says in the AVForum:

"Unfortunately circuit analysis down to this level virtually does not happen any more in servicing such that I was shocked to discover yesterday, when I looked into this particular capacitor, that Panasonic do not even provide component values in the service manual"

I wonder how many serviceable pieces of electronic kit get binned each year due to busted replacable simple components?  One of the many costs of lock in (can't service yourself or you'll invalidate the warranty), commercial efficiency drives for economies of scale, commodification and de-skilling.

Now there is a postscript to the story of my apparently healthy again Panasonic DVD/HD recorder.  The freeview signal is fine and I can safely view and record to the hard drive again.   However the DRM has gots it's knickers in a twist and won't let the machine read my DVDs!  The machine with the brand new DVD drive doesn't approve of my DVDs.  Don't let me get started on DRM... but if anyone on the interweb has a simple quickfix I'd be happy to hear from you.

Jennifer Jenkins: Theft! A History of Music

Jennifer Jenkins on "Theft! A History of Music" is now available on YouTube. Highly recommended.



A realplayer version is available at the Duke University website.

Nina Paley: All Creative Work Is Derivative

Clever YouTube video by Nina Paley, All Creative Work Is Derivative. Thanks to Andres via Twitter for the pointer.

Further thoughts on net neutrality summit

Politicians like simple stories and simple solutions even when the issues are complex as with net neutrality.  I get it.  So they get told simple stories by lobbyists to get them to behave in a way that is beneficial to certain commercial interests. I get that. Complaints that the debates on net neutrality are dominated by extremes are legitimate.  But the logical leap then to the argument that net neutrality purists should be dismissed and commercial interests prevail - i.e. saying one end of the spectrum is right and the other wrong - is a leap too far.

Jean-Jacques Sahels of Skype and La Quadrature du net's Jérémie Zimmermann, for example, were very badly treated by the first afternoon session chair, Malcolm Harbour, who insisted in intervening in their contributions to the debate and disagreeing with them. At the same time Mr Harbour both explicitly and implicitly praised the contributions of those selling the anti net neutrality message. Mr Harbour's duty as an MEP is to look to the public interest and undermining those who are attempting to speaking up for the public interest should not be part of his remit.

Cisco and similar tech companies want to sell intelligent network kit.That's their business.  The more intelligent the kit the better the margins. Net neutrality doesn't aid their bottom line.  They have a right to argue for the need for "innovation at the core of the network" but it doesn't negate the fact that it is the innovation at the edges of the network that has transformed the world.

Telcos sell access to networks.  Controlling how people behave on those networks is in their interests particularly when they can charge more to provide access to the faster, broader, low latency services.  Net neutrality doesn't serve that end.  Of course if they are seen to be able to control traffic then their get out clause on liability for third party behaviour on their networks may be forfeited but that may be a balancing act they have to manage.

Similarly net neutrality gives mobile operators revenue issues.

Unfortunately when the pie is sliced up amongst the stakeholders:

Commercial users of the Net (content owners, retailers, search engines, cloud providers etc.)
Commercial facilitators of the Net (telcos, Ciscos etc.)
Ordinary nay extraordinary net users (general public)

The interests of the general public rarely come into the decision making other than in vague promises about keeping the public at the heart of the debate or platitudes on transparency or consumer empowerment. When there are vague commitments to the 'bests efforts internet' in addition to 'managed services' there is little doubt that the 'bests efforts internet' ultimately means the slow lane for people who are not prepared to or don't have the wherewithal to pay the necessary premium for the managed services.

Just one extra point about managed services.  So often one of the big excuses for saying we'll need special fast lanes is that it will be necessary for elearning.  As someone who has been deeply buried in the practice of so-called elearning at scale for over 15 years the best thing the Commission and Parliament could do for elearning is to gaurantee a universal superfast network infrastructure and make it open.  The thing that most interferes with elearning is congestion and poor quality of service at the ends of the network.  The thing that will fix that is big fat low latency dumb and neutral communications pipes.  How you cut the gordian knot on investment in and construction of such an infrastructure is a tough one. But that's what policymakers should be focussing on not on protecting existing commercial interests.  And maybe they need to be reading up on John Maynard Keynes and thinking about public and private investment in such an infrastructure.  Pay some people to dig holes, pay more people to fill them with fibre optic cables, pay more people to fill them in and pay even more to connect every home in Europe to the fastest open infrastructure in the world.  Connect all those people, spin the continent and watch the magic flow.

Net Neutrality Summit

I had the privilege of being an invited delegate at the EU Summit on 'The Open Internet and Net Neutrality in Europe' in Brussels yesterday.  The morning sessions were held at the Commission's Charlemagne building and the afternnoon sessions at the EU parliament.

That the lunchtime walk between the two, in freezing driving rain, proved something of a contrast to the wonderful sunny netherworld presented by many of the speakers. The EU was lauded as leading the world in staying out of the way of the market and the, if not perfect, then the best of all possible internets evolving before our very eyes.  Seriously there is a wonderful internet universe out there which will only get better if the EU has the sense to avoid regulating the companies delivering it.

It was a bit like a variation on Groundhog Day as I listened again and again to the same message pouring out of the mouths of speaker after speaker from Cisco, AT&T, Alcatel Lucent, DigitalEurope, Ofcom, GSMA, Cable Europe, Telefonica, NokiaSiemens and others. Actually it is unfair to include Sigurd Schuster of NokiaSiemens. He did at least explain why, in a congested, network the laws of physics dictate the limitations of the technology. Sadly MEP Malcolm Harbour, who was chairing that session, immmediately alighted on Mr Schuster's slides claiming they were a great demonstration of the reasons why the EU needed to stay out of the way of the market and avoid regulating.  Getting back to the message that was repeated by the corporate and trade body speakers, though, it amounted to:

1. There is no anti-consumer or anti competitive behaviour in relation to the internet
2. The is no evidence of anti consumer or anti competitive behaviour
3. Concern about such nefarious behaviour is purely theoretical and scaremongering by extremists
4. All regulation has costs
5. Regulators should focus on 'transparency' and 'consumer empowerment' as cures because regulation is not free
6. The US was wrong, WRONG, WRONG to commit to net neutrality and an open internet
7. The EU can lead the world by not making the same mistake and by refusing to regulate
8. Net neutrality is not compatible with enabling network providers to innovate
9. The Net is brilliant but it will only continue to be so if the EU leads the world by not regulating
10. All is rosy the netherworld of the internet, so don't spoil it! Only extremists want net neutrality.

Ok, so I may be laying it on a bit thick but honestly, having hit the road at 4am to catch the Eurostar and battled the weather all the way to the Commission, only to listen to this shrill corporate claptrap (again, in fairness some were significantly more shrill than others), I felt like cheering when Chris Marsden rose as the sole voice of reason just before lunch. He suggested there was a touch of the three wise monkeys about the message being delivered by other speakers and the desperate collective unanimity, to convey the notion that there is no problem, should raise suspicions.  (Actually even Bernd Langeheine, Director DG INFSO, who had been chairing the session, had introduced Dr Marsden by suggesting there had been an "alarming consensus amongst the speakers so far.").  The good doctor pointed out that vague, broad promises about an open internet and requiring "the consumer to be at the heart of the debate" don't cut the mustard.  The devil is in the details.

Four years ago, Charles Dunstone, chairman of TalkTalk said:

“We shape traffic to restrict P2P users.
"I get hate mail at home from people when that means we restrict their ability to play games."
I’ve got 2 people that have said they’re going to kill me as a result of not allowing them to play certain games.
From our point of view, it’s not about security, it’s about trying to figure out what type of traffic it is.”

I fully understand the need for traffic management on modern congested networks but that is not traffic management for a best services internet or to manage congestion or for security.

And frankly on the notion that regulators already have the tools to step in if there is ever a problem regulators saying "We have received no complaints" is completely different to "we have not listened to any complaints." I'm not sure in the UK whether Ofcom can actually listen to complaints from consumers as I believe it is only ISPs that have the right currently to make a formal complaint. Absence of evidence is not evidence of absence and there is a serious need for scrutiny and collection of evidence on the reality of internet services in Europe.  After all if there is no problem there will be nothing to hide.  There is a desperate need for robust independent research and little or no direct empirical evidence on network providers practices at the moment.

The thing is I understand the genuine concerns of corporate actors on this.  Regulating net neutrality is difficult and there is a fair chance that policymakers would screw it up, as they do with much tecnhology regulation. When John McCarthy of Level 3 Communications Limited says his biggest fear is having to tell smart techies who have come up with brilliant technology to stop work until he can consult his lawyers on the legality of the innovation, I share that concern.  For goodness sake we're already there with intellectual property laws.  When Rober Pepper of Cisco says

1. Consumer/citizens should have access to the networks, goods, services and applications they want
2. There should be investment in the network
3. The network should be fit for purpose to dynamically support different kinds of applications
4. We want managed services in addition to the bests efforts internet

I largely agree with him though I suspect we might disagree on some of the details of items 3 and 4.  When he says we need traffic management on current congested networks to give latency sensitive applications like P2P VOIP priority over email, I agree with him. But that's doesn't seem to be what Charles Dunstone meant when he said TalkTalk shape p2p traffic.  When Robert Pepper says caching at the edges of the network will improve some video services (eg BBC iPlayer) but that caching doesn't work for other video services like teleconferencing or Skyping which need high bandwidths, I agree with him.  When he says the net neutrality debate is too often a debate of extremes and false choices I agree with him.

When he then says "extremists would have us freeze the internet in time" we part company because he seems to be saying one group of extremists is wrong and the other is right. Whereas the devil is in the details.  When he says we should avoid regulation and instead focus on transparency and consumer empowerment we again disagree for the reasons I outlined in my submission to the EU consultation. Transparency and essentially meaningless phrases like 'conumer empowerment' are never going to be enough in an unequal world.  And as Jeremie Zimmerman said later, what matters is the harm being done not transparency of the infliction of harm, which if it is accompanied by lack of action to prevent and/or repair the harm is meaningless; and when switching suppliers is incredibly difficult, even in that supposed home of the most competitive ISP market in the EU, the UK.

When Jean-Jacques Sahel, Director, Government and Regulatory Affairs at Skype says the open character of the Internet is the foundation of all the benefits delivered at all levels of the internet value chain from consumer to ISP to innovators for the past 20 years, I also agree with him. When he says also we are heading towards a future of walled gardens or a collection of hinderednets I have to agree with him there too and this will considerably diminish the value of the Net.  There are already problems in Europe.  Skype is prohibited or subject to heavy surcharges on many services.  All mobile operators in France block Skype.  The EU mobile network is crippled and on this front the EU is getting left behind.  Traffic management is not inherently bad when it is used for appropriate reasons eg to manage congestion but it should not be abused for commercial reasons.  Yet it is being used in that way.  When you make discrimination for commercial gain possible it will happen.  That is not just a theoretical concern.  Skype is being blocked by mobile operators in France but there is no evidence of this as it is really difficult for independent researchers have access to the required data to generate sufficiently robust objective evidence to that effect.

The sad thing about the simple "there is no problem, do not regulate" corporate message is that they are selling such a simple story to keep the policymakers out of their hair, yet the devil is in the details and the Jean-Jacques Sahels and Robert Peppers of the world know this.  But when the debate is dominated by the stories being told yesterday I reserve the right to maintain my concerns about the direction of travel on the whole notion of net neutrality in the EU.

Simon Singh on libel reform

Simon Singh writes,

This week is the first anniversary of the report Free Speech is Not for Sale, which highlighted the oppressive nature of English libel law. In short, the law is extremely hostile to writers, while being unreasonably friendly towards powerful corporations and individuals who want to silence critics. The English libel law is particular dangerous for bloggers, who are generally not backed by publishers, and who can end up being sued in London regardless of where the blog was posted. The internet allows bloggers to reach a global audience, but it also allows the High Court in London to have a global reach.
You can read more about the peculiar and grossly unfair nature of English libel law at the website of the Libel Reform Campaign. You will see that the campaign is not calling for the removal of libel law, but for a libel law that is fair and which would allow writers a reasonable opportunity to express their opinion and then defend it.
The good news is that the British Government has made a commitment to draft a bill that will reform libel, but it is essential that bloggers and their readers send a strong signal to politicians so that they follow through on this promise. You can do this by joining me and over 50,000 others who have signed the libel reform petition.
Remember, you can sign the petition whatever your nationality and wherever you live. Indeed, signatories from overseas remind British politicians that the English libel law is out of step with the rest of the free world.
If you have already signed the petition, then please encourage friends, family and colleagues to sign up. Moreover, if you have your own blog, you can join hundreds of other bloggers by posting this blog on your own site. There is a real chance that bloggers could help change the most censorious libel law in the democratic world.
We must speak out to defend free speech. Please sign the petition for libel reform!

(Via Cory)

French suspend articles 6.1 and 6.3 of European Convention on Human Rights

ECHR case-law news of France is reporting that the French ministry of Justice has announced that articles 6-1 and 6-3 of the Convention are suspended.

"On October 19th 2010, the ministry of Justice notified all district attorneys (D.A) and judges of France that the rights under article 6-1 and 6-3 of the Convention were suspended for suspects in police custody until July 1st 2011.  According to the official notice, these rights are  the right to be informed of the right to remain silent and the right to have the legal assistance of a lawyer during police interrogation (case Brusco v. France (1466/07)).

The notice also stated that judges in France cant dismiss confession obtained in violation of articles 6-1 and 6-3 of the Convention and that any ruling of dismissal will be appealed by the district attorney...

The notice explained that this suspension of articles 6-1 and 6-3 of the Convention is based on 3 controversial rulings of the supreme court  on October 19th 2010(case Tisset (10-82.902), case Sahraoui (10-82.306), case Bonnifet (10-85.051)). Case Sahraoui and Bonnifet were brought to the supreme court following appeals by the D.A of the appeal court of Poitiers and the one of the appeal court of Agen.

In these 3 cases the D.A of the supreme court pleaded that the articles 6-1 and 6-3 of the Convention should be considered  having being suspended until July 1st 2011 because the agency Conseil Constitutionnel already ruled in the application 2010-14/22 QPC [en] that rights under the Constitution were suspended for suspects in police custody until July 1st 2011. The ruling of the supreme court in favor of the retroactive suspension of the Convention for a “good administration of justice“, was a move that left numerous lawyers in France bewildered.

In fact, the obligation of the French Republic under the articles 6-1 and 6-3 of the Convention, can only be suspended  “in time of war or other public emergency threatening the life of the nation” (art.15-1 of the Convention)."

A copy of the order of suspension is available at Scribd.

DACG19102010

It appears to be signed by Maryvonne Caillbotte who is the Director of Criminal Affairs and Pardons at the French Department of Justice.

Panasonic, J.F. Associates and the Oxford digital TV signal

The saga of my Panasonic DMR EX75 DVD recorder with the dodgy DVD drive was eventually resolved. After an extended exchange of emails with Panasonic I had taken the machine to the local Panasonic approved repair centre, J.F. Associates, who assess the problem with this kind of machine for a standard fee of £58.75.  After a few days they phoned to say they could not do anything until they fitted a new power supply, at an extra cost of about another £58.  I approved the work and a few days later got a call to say they had figured out the problem - the DVD drive had died as I had suspected. Unfortunately the cost of replacing it would be between £130 and £140.  So in total the repair would cost about £250, more than a new, higher spec. machine. If I'd known that before I started I'd have thrown it out and bought a replacement, though naturally there were several things on the hard drive I'd prefer not to lose.

I decided not to have the drive replaced but followed up with a complaint to Panasonic that even though the machine was over three years old it was an indictment of their standards that the drive should give up the ghost on the first occasion I attempted to copy anything to a DVD.  There followed a - several weeks long - extended exchange of emails.  Pansonic wanted me to post them a copy of my purchase receipt - I didn't have that but I did have an online order number and a blogpost about the purchase saga. They wanted a copy of a written quotation for the repair - also something I repeatedly pointed out I didn't have because I had been quoted the repair estimate over the phone.  (If I'd had one more polite email telling me they were looking forward to receiving a copy of the written repair quotation, this post would have been significantly longer and included the tortuous email exchange in full).  In the end I asked the repair centre, J.F. Associates to confirm the repair cost they had quoted with Panasonic which they kindly did.

Communications then went dark for some weeks until out of the blue I got a call from a very helpful lady at J.F. Associates to say they had been in touch with Panasonic, who had now agreed to supply a new DVD drive free of charge. She added that as a gesture of goodwill J.F.Associates would fit the drive at no further cost to me.

So kudos to Panasonic for eventually getting round to doing the right thing and especially to the folks at J.F. Associates for being so helpful and taking the trouble to engage with Panasonic on my behalf.  I take a few lessons from the experience.

Firstly it's worth blogging about these things - the blogpost from 2007 helped me to provide the required proof of purchase.

Secondly it can be worth persisting politely with customer relations centres, if you have the stamina.  The people in these centres generally want to be helpful even if the detailed systems, rules and procedures they are working to quite often impede that desire to help.

Lastly, people generally like to be helpful.  The folks at J.F. Associates had been paid for the repair assessment. They had no obligation to communicate with Panasonic on my behalf and no obligation to fit the drive as a goodwill gesture.  It involved extra effort and work on their part for no extra financial gain.  It has, however, left me with a positive perspective on the service they offer and with a good chance of repeat business.

The drive got replaced some weeks ago.  I was reminded about it because the hard drive started playing up last night refusing to record properly.  Here we go again...?  I'm wondering, though, if there is a problem, as there was earlier in the year, with the digital transmitter in Oxford.  On checking, the signal strength and quality was very low, particularly on the ITV channels. The website currently says there are no problems with the TV signal though the radio signal may be weak over the next week due to engineering works.  The last time there was a problem, though, the website also said there were no problems.  On that occasion, according to the local BBC news as I recall, there were several hundred people in the area who invested in new TVs, aerials and recorders in the belief that the problems with their reception were caused by their old kit.  I might just delay my next trip to J.F.Associates and monitor emerging news on the transmitter. There was a fire on the main antenna in May this year and the signal was delivered via a reserve for several months.  They were supposed to go back on the main antenna by the end of September but maybe there are further technical problems following the switch back?  If anyone in the Oxford area has the inside track on this I'd be interested in hearing about it.

Ofcom FOI on BBC Internal review ongoing

Mauzima Bhamji at Ofcom has written to explain that their internal review relating to my freedom of information request on the BBC & Freeview DRM decision is ongoing.  S/he hopes to be able to provide a substantive response by 23 November.

"Dear Mr Corrigan

Freedom of Information: Internal review (Content management on the HD
Freeview platform)

Thank you for your email dated 28 September to Ofcom asking for a review
of Ofcom's decision in relation to your request for information.

On 29 September I wrote to you stating that 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".

We are currently undertaking the review of our decision that you
requested. As we do not have all the information in order to make a
decision, Ofcom is still not in a position to reply to your request for a
review. It is therefore necessary to extend the date for responding to
you. I hope to be in a position to respond to you by 23 November 2010.

Yours sincerely

Mauzima Bhamji"

Eldred mark 2 heads to the US Supreme Court

This week the Center for Internet and Society at Stanford University filed a petition for a writ of certiorari asking the United States Supreme Court to review the Golan case.  Ever since the Supreme Court ruled, in a split 7-2 decision in January 2003, against Eric Eldred (and his lawyer, Larry Lessig) who questioned the constitutionality of repeated extensions of copyright terms, copyfighters have been looking to return the issue to the Court's agenda.  The Golan case has been their great hope of, if not overturning, then putting a dent in the Eldred ruling.  Brewster Kahle failed to get the court to consider overturning Eldred in 2008. But since the Kahle case was all but the same as the Eldred case that was arguably an almost inevitable, if disappointing, outcome.

Technically the case is about re-applying copyright protection to thousands of foreign works the Copyright Act had previously placed in the public domain. Mr Golan performs and teaches works by foreign composers like Shostakovich and Stravinsky. He argues that the removal of some of these works from the public domain, due to changes in US copyright laws, led to higher costs to him for performance fees, royalties, sheet music rentals etc. When these costs are too high they may interfere with his first amendment rights to freedom of expression.

There are other issues being argued but effectively, like the Eldred case, this is about testing the limits of congressional power to continually expand the scope and term of copyright.  It will be really interesting to see whether the Court agrees to look at the case.

Random cybergeek trivia: Having argued and lost the Eldred case before the US Supreme Court, afaik Larry Lessig earned his first courtroom victory in September 2007, in the Golan case.

Is turnover the barometer of “Worth”?

Rich Huxley has an insightful post on the music business, Is turnover the barometer of “Worth”?

"Less than 10% of signed artists recoup. Take Maximo Park for example. They have by their own admission never made a penny from record sales and make their money from DJ sets in the main. An example I have first hand knowledge of, Embrace, have sold millions of albums, they were a genuinely massive band; they performed from Glastonbury main-stage to Top Of The Pops and everywhere in-between. When they split from Virgin, they owed their label three quarters of a million pounds. I guess my point is that if we promote the Trad Music Biz’s model as “The model” then the message we’d be sending is:

• less than one percent of musical artists are part of the music business
• only a tenth of those will recoup and make money from their record sales, and that’s good
• an artist should be saddled with debt, the rate at which they pay that back is equivalent to a credit card with a 900% interest rate

I can’t promote that, I can’t encourage it, and it’s not representative of the vast swathe of music makers interests to do so."

The consumer perspective on the open internet

Video and reports from the POLIS and Communications Consumer Panel 'Net neutrality and the Open Internet: the consumer perspective' event at the LSE in September are now available.  The 4min 23sec video gives a very good flavour of the discussions on the day.


Consumer Panel Net Neutrality event from Communications Consumer Panel on Vimeo.

James Boyle and Pamela Jones win EFF Pioneer Awards

James Boyle and Pamela Jones have been awarded the Electronic Frontier Foundation's highest acolade and named as EFF Pioneer Award winners, 'leaders who are extending freedom and innovation on the electronic frontier.'

"James Boyle is William Neal Reynolds Professor of Law and co-founder of the Center for the Study of the Public Domain at Duke Law School. Professor Boyle is recognized for his exceptional scholarship on the "second enclosure movement" -- the worldwide expansion of intellectual property rights -- and its threat to the rich public domain of cultural and scientific materials that the Internet might otherwise make available. An original board member of Creative Commons and co-founder of Science Commons, Professor Boyle has worked for over 20 years as both an academic and institution builder to celebrate and protect the values of cultural and scientific openness.

When Pamela Jones created Groklaw in 2003, she envisioned a new kind of participatory journalism and distributed discovery -- a place where programmers and engineers could educate lawyers on technology relevant to legal cases of significance to the Free and Open Source community, and where technologists could learn about how the legal system works. Groklaw quickly became an essential resource for understanding such important legal debates as the SCO-Linux lawsuits, the European Union antitrust case against Microsoft, and whether software should qualify for patent protection."

Congratulations to both and to the other award winners this year, Steven Aftergood of Secrecy News and Hari Krishna Prasad Vemur, a security researcher in India who revealed serious security flaws in India's paperless electronic voting machines; enduring jail time, repeated interrogations, and ongoing political harassment from a political establishment more focussed on covering up the problems than doing anything to address them.

Net neutrality on BBC's Click on

I made a brief appearance on the BBC Radio 4 'Click On' programme yesterday to discuss net neutrality with presenter Simon Cox, ZDNet editor, Rupert Goodwins and chief technology writer at the Economist, Tom Standage. The segment starts about 17.5 minutes into the programme.  Simon Cox opened with a succinct explaination of net neutrality suggesting it boiled down to the principle that all data on the internet, no mater what it is or where is comes from, should be treated equally.

We then went on to have a wide ranging discussion during which I displayed the standard academic's curse of trying to explain the complexity of the issue, Tom Standage was very entertaining on how he thought the concept of net neutrality was 'silly' and Rupert Goodwins made the points I was trying to make but in a much more accessible way for a radio audience.

Simon Cox invited me to begin the discussion by setting some of the background and the history.  I explained that the Net kinda grew by accident and there were a couple of key things that facilitated that:

1. General purpose computers - which can be programmed to do anything and are not controlled (post sale) by the vendor/manufacturer

2. The open network - which was open to everyone not just trusted sources like the BBC

I also explained that it grew on the back of the telephone network originally and before governments or telcos really noticed.  So all of this - the general purpose computers, the open network and the lack of control led to an explosion of commercial, social and cultural creativity.  Enterprises like Amazon, the World Wide Web itself, Wikipedia, Google, Facebook etc. grew.  And because of the absence of concentrated control of the platforms or network none of the instigators of these entities had to ask anyone for permission. No permission was required.

Now, however, governments and commerce are both very much aware of the net and energetically attempting to assert control over it.  These combined forces are leading to a closing down of the Net and an evolution towards a future of fragmentation (walled gardens and national firewalls) and control.  That in turn kills the facilty for innovation and creativity which should have us asking where the next Google or Web is coming from.

Rupert Goodwin then went on to explain some of the commercial forces involved - how, for example, when network owners also have an interest in content they naturally try to cut out competitors and keep people in walled gardens and that's why net neutrality is important.  So there is a very very strong commercial impetus to break the internet. People with great ideas in back bedrooms will be shielded out and we'll be back in the bad old days where if you don't play the game of the big companies you don't play at all.

Tom Standage amusingly pointed out that if you get three geeks in a room you'll get 4 definitions of net neutrality - true! -  and then launched into a entertaining radio friendly discourse on the concerns of people advocating net neutrality.  He condensed those concerns into (a) big companies are too powerful and (b) governments are going to censor the net (c) geeks talking about the end to end principle (d) walled gardens and then said these were different discussions and dismissed net neutrality as the thing you invoke when something you don't like is happening on the Net.  He suggests that each element be taken separately and for example take a legitimate concern like network operators engaging in discrimination and deal with it in a pretty obvious way by encouraging more competition.


He went on to say that the reason network services were so much better in Europe than the US was that competition was much better in Europe with dozens of available suppliers whereas there were only three big ISPs on the other side of the pond.

Tom and I then got into a discussion about what exactly he meant by competition - was it competition between applications providers, between network service suppliers, between content suppliers, device suppliers etc. - which didn't make it onto the airwaves. My final comment of that debate, which did make the final cut, was that I was less than impressed with the state of the competition between network providers in the UK since there were only about 6 main suppliers, most of which rented their lines from BT and my personal experience of switching suppliers had been painful.

Simon Cox invited Rupert Goodwins to comment then on whether competition was the key and he explained that it was part of it but the evolution of the market tends to lead to amalgamations and mergers and ultimately a small number of large companies in a virtual monopoly or duopoly situation.  He went on to disagree with Tom Standage about net neutrality being too wide a term - "that's like saying freedom is too wide a term and that we should never argue about freedom".  (Why can't I do soundbites like that?!). And that the basic principle that there should be open access where the people who provide the network services don't have control over what content is delivered is a very important foundation principle. And that's where the core of net neutrality lies.

Tom then came back and argued that that's fair enough but as soon as you try to write it down in law it gets difficult. The internet is not neutral now and there are lots of things we don't want to be neutral. For example it is desirable that spam is blocked or gamers might want superfast low latency broadband pipe that they would be prepared to pay extra for.  The danger of saying things must stay as they are is that you fossilise the Internet in its current state and a simplistic net neutrality law might just do that - making illegal a lot of things that we already do and making things worse. So the best legislation in relation to net neutrality is none.

Rupert disagreed and said the law should specify that network operators have a duty to provide a level of access and include sanctions if that service is not up to scratch.

In the segment broadcast Simon Cox then wound up the discussion noting we could have continued for much longer.  In the recording studio he had asked me for a final comment which understandably didn't make the final cut due to the time constraints on the programme.  Essentially I just said that whether you were looking towards a future of dynamic competition as Tom favoured or net neutrality and an open net as Rupert was arguing, it needed to be backed up with a deep understanding of the complexities of the issues and a political commitment to deploy the resources required to address them.  Sadly politicians are busy generalists and don't do deep.

As a radio pundit I should probably stick to blogging, teaching, writing or just listening.  I found myself agreeing with a lot of what both Tom Standage and Rupert Goodwins were saying.  I would be interested to know if Tom really believes net neutrality is 'silly' or he's just using that as a rhetorical trick to emphasise his concern that writing a net neutrality law that is balanced is a very difficult thing to do.  If the latter then I agree it is difficult and it could be damaging if it was done carelessly or got moulded by the conventional lobbying processes into an inappropriate form.  But saying that some groups invoke net neutrality as a cure for the things they don't like on the internet and that writing a net neutrality law is difficult don't necessarily come together to mean that net neutrality is silly.

As James Boyle says, lots of people have different definitions of "the environment" but just because it is hard to define doesn't mean it is 'silly' or not useful.  If anything that abstract, ill-defined concept of the environment is an articulation of a shared interest that brings that interest - the environment - into being.  The duck hunter and the bird watcher might not like each other but the both have a shared interest in protection the birds' ecology.

Thanks to Simon Cox, Tom Standage and Rupert Goodwins - I enjoyed the discussion in the studio - and to Click On series producer, Monise Durrani, for the invitation.

The BBC: an open and shut case of corporate schizophrenia?

I've just scanned (health warning - I mean just scanned, I haven't read the response in any depth yet, so may have missed something obvious) the BBC's publicly available response to the Ofcom consultation on net neutrality.  It's full of sensible arguments about why the Net should be kept open e.g.

"The open and ‘neutral’ character of the internet is considered by many to have been a key driver of its growth and success to date. However, technological developments and the growth in the volumes of traffic passing over the internet pose challenges to this character. Undue blocking and degradation of traffic is already taking place. In this environment, to ensure the effective operation of the internet, consistent as far as possible with the principle of openness and neutrality, we need to have in place a clear, robust framework...

In our view, discriminating traffic by content provider or origin will distort competition and deviate from the end-to-end principle which is at the core of the open and neutral character of the internet...

The BBC believes there are clear incentives for anti-competitive behaviour to arise if unconstrained traffic management is permitted. At a basic level, allowing network operators to discriminate against certain types of content creates an additional entry cost for content and service providers. In the long-term this could prevent innovation and in turn restrict consumer choice. Furthermore, there is a real risk that ‘managed services’ could create an incentive for ISPs to ensure access remains scarce, thereby disincentivising further investment in next generation services."

I just wonder how they can square that call for openness with their 'confidential' response to the Ofcom consultation on attaching DRM digital locks to the BBC HD signal? The BBC's secret response was a key cornerstone of Ofcom's approval the BBC's application to add DRM restrictions to their HD signal.

Just a small request, since I know how things work in large organisations and it is entirely possible that they don't know each other - could someone at the BBC please introduce the team who drafted the demand for openness and net neutrality to the team who drafted the demand for DRM on BBC and Freeview HD? I do firmly believe the unwielding advance and malignant growth of bureaucracy leads to endemic corporate schizophrenia in all large organisations but it can be cathartic to at least give the individuals caught up in it an opportunity to defend their positions.

Web blocking: an excuse for inaction on child protection

Joe McNamee of European Digital Rights gave a quietly passionate and compelling talk at the European Parliament's hearing on child exploitation, at the end of September, on why website blocking does not work and is actually counterproductive, dangerous and stupid.