Ofcom response on BBC HD DRM freedom of information request

Ofcom have responded to my latest freedom of information request relating to HD DRM.

Dear Mr Corrigan

Freedom of Information: Right to know request

Thank you for your request for information requesting copies of documents relating to
Ofcom’s decision regarding Content Management on the HD Freeview platform which
Ofcom received on 6 June 2011 and is considering under the Freedom of Information Act
2000 (‘the Act’).

I am writing to confirm that Ofcom has now completed its search.

You asked:

I would like to make a freedom of information request for full and
complete copies of the documents:

(a) recording and explaining the reasons behind Ofcom's decision in
2009 to abandon its long standing opposition to the idea of the BBC
adding digital rights management technology to its high-definition
broadcasts and

(b) outlining the decision making process leading to the Ofcom
public consultation 'Content management on the HD Freeview
platform' (Start date: 22 January 2010, End
date: 02 April 2010).

In respect of your request we are able to provide the following information:

(a) recording and explaining the reasons behind Ofcom's decision in
2009 to abandon its long standing opposition to the idea of the BBC
adding digital rights management technology to its high-definition
broadcasts and

Please refer to the Statement on Content Management on the HD Freeview platform
published on Ofcom’s website via link:

http://stakeholders.ofcom.org.uk/consultations/content_mngt/statement/

(b) outlining the decision making process leading to the Ofcom

public consultation 'Content management on the HD Freeview
platform' (Start date: 22 January 2010, End
date: 02 April 2010).

I would refer you to the Minutes of three Policy Executive Meetings as detailed below and
to the associated Papers. The Papers are attached to the covering email to this letter.

PE255 (09) Digital Rights management on DTT

24th September 2009:
• The team tabled PE 255(09). PE explored with GB and the team the background to the
current issues and the team’s initial assessment of the options for proceeding;
• PE noted that the team would return to a future meeting with a recommendation for how
Ofcom should proceed. PE agreed that, to progress the issue most effectively, the team
should, as a priority, arrange a series of face to face meetings with the key stakeholders,
including rights holders, to better understand their respective positions.

PE 275(09) Digital Rights Management on HD Freeview

22nd October 2009
DH introduced PE 275(09), reiterated the background to Ofcom’s recent consultation
with industry on the BBC’s request to amend a multiplex licence to encrypt HD Freeview
Electronic Programme Guide data, and summarised the responses to that consultation.
During the ensuing discussion, PE:
• agreed that the team should prepare a further consultation (for publication in November
or December 2009, to conclude in February or March 2010) which:
• reiterated Ofcom’s view that providing services in HD on DTT would be in the interest of
consumers, and explained the steps that Ofcom had taken so far, and would continue to
take, to facilitate this;
• emphasised that the BBC’s request had raised a number of broader issues that were not
within Ofcom’s remit to answer, and explained the issues on which Ofcom was consulting;
• expressed concern about competition issues arising from the BBC’s approach and
sought evidence of its impact on the competitive landscape;
• agreed the team should encourage the BBC to resubmit its request with a more thorough
assessment and analysis of the broader range of issues it raised;
• agreed that the team should send a copy of the second consultation document to PE for
information.

PE 370(09) Digital Rights Management on the HD Freeview platform:

17th December 2009
Following a short discussion of the issues raised in PE 370(09), PE:
• agreed that Ofcom should issue a second consultation in early January 2010 on the
BBC’s request for a Multiplex B licence amendment to support their plans to apply Digital
Rights Management to HD content on the DTT platform;
• agreed that approval of the final version of the consultation document should be
delegated to the project sponsors, HN and PP.

Some information within Papers PE255 (09) and PE 275 (09) is exempt from disclosure
under Section 41of the Act. This part of the Act deals with information provided in
confidence and the disclosure of information to the public (otherwise than under the Act)
by Ofcom would constitute a breach of confidence actionable by the person providing the

information. Section 41 is an absolute exemption under the Act and does not require a
public interest test.

It is likely that other exemptions will 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/disclaimer.

If you have any queries about this letter, please contact me. Please remember to quote the
reference number above in any future communications.

Yours sincerely

Julia Snape

Some of the information in papers PE255(09) and PE275(09) has been withheld under section 41 of the Freedom of Information Act. The information withheld appears to be related to manufacturers of broadcast receiving equipment and the Digital Transmission Licensing Administrator (DTLA). Ofcom, in PE275(09) refers to this group as the 'Digital Television Licensing Authority'. The DTLA is an organistion set up by Hitachi, Intel, Panasonic, Sony and Toshiba which, according to Ofcom "own the IPR for the DRM technology included in the minimum HD Freeview receiver specifications.

Paper PE255(09)  is a set of slides for a Policy Excutive meeting on 24 September 2009. They refer to the BBC, C4 and ITV being under pressure from rights holders leading to the BBC proposing the HD DRM scheme ("very late in the process") which in turn led Ofcom to write to "key stakeholders" (not including civil society or open source advocates/businesses) and launch a short consultation on the issue, (Enquiry to Ofcom from BBC Free to View Ltd. concerning its DTT High Definition License) on 3 September 2009.  Despite the short 2 week time window for the consultation they got over 200 individual responses "universally against" the BBC scheme.

From PE275(09):

[...]

[...]

 [...] Is Ofcom a reluctant participant in the HD DRM issue...

The paper then goes on to consider the 4 options facing Ofcom in more detail ie

1. Allow drm
2. Refuse to allow drm
3. Consult again
4. Consult again but allow drm in the interim

It states that there are risks to Ofcom in all of these but also implicitly accepts, without any evidence, the notion that without DRM the availability of content for HD broadcasts will be restricted. They discuss in relation to option 3 the fact that the BBC proposal "removes the ability of consumers to purchase receivers without DRM" and hence "Ofcom's decision on the BBC's proposal is likely to be dependent on advice form the IPO on whether broadcaster planned use of DRM would be consistent with consumer "fair use" and "format shifting" of the content."

Maybe we should ask for evidence of that advice being sought and what specific advice was received in that regard.

On the risks: "Ofcom could face a potentially significant reputational risk if it were to adopt option 1."  It might be said that Ofcom:

 They were also concerned at the risk of a legal challenge due firstly to Ofcom not following due process and secondly because the BBC might be accused of rigging the market to favour certain manufacturers of receiving equipment.

Paper PE370(09), dated 11 December 2009, recommended option 2 - a second consultation to be initiated in January 2010. The BBC had at this stage submitted a more detailed report, on 9 November 2009, on why they wanted the HD DRM. It's included as an annex to paper PE370(09) but this we've seen before (see p47-86 at http://stakeholders.ofcom.org.uk/binaries/consultations/content_mngt/summary/condoc.pdf).
The interesting thing is that despite this paper containing no evidence for the claim that HD content will be restricted unless the BBC DRM proposal is approved, the recommendation of this paper to Ofcom's Policy Executive at this point is that

"In the second consultation, we propose to express support for the adoption of the BBC‟s
proposal subject to  subject to consultation responses, on the basis that DRM is a
justified objective which ensures the broadest range of content for consumers and the
means of implementation appears to us to be proportionate to that aim.

3. Stakeholders:
Ofcom received nearly  consumer  200 responses to its first consultation opposing the
BBC‟s proposed multiplex licence amendment.  The new consumer commitments set out
in the additional information provided by the BBC address many of these concerns, but
the use of DRM is likely to remain contentious and will continue to need careful handling
with consumer groups, MPs and the press. We intend to meet with relevant consumer
groups during the consultation period and highlight that if Ofcom does not approve the
proposed licence amendment there will a reduced incentive for the BBC and other
broadcasters on the DTT platform to introduce a self regulatory code of practice for how
they implement DRM on the DTT platform.
4. Risk and Impact (including Equality Impact):
There is a potential risk to the long term viability of the DTT platform if the BBC‟s
proposed licence amendment is not accepted which must be balanced against the risk of
undue  restrictions  being  placed  by DRM  on consumer  use  of HD content, and the
removal of the ability to purchase receivers without DRM. The  recently  proposed
commitments made by the BBC relating to safeguarding consumer interests against the
inappropriate use of DRM, significantly reduce the potential consumer downsides of their
proposal.
From a  competition perspective there is a risk associated with the BBC leveraging its
control  of EPG data (using its position as a multiplex licence holder)  to secure an
outcome in the receiver market. The BBCs fuller submission provides a useful basis for
evaluating the significance of the consumer benefits and the impact on the competition
from the proposed licence variation."

Taking all of this at face value it would seem that it was the BBC paper of 9 November 2009 that convinced the project group advising the Ofcom Policy Executive that HD DRM was such a good idea that the consultation should not just ask for opinions but support the proposal.

I'll have to ponder this but in the meantime I've sent a follow up request on the IPO advice regarding evidence that it was sought and what specific advice was received.

Overcoming cultural agoraphobia - the making of OpenLearn

Transcript and slides of my Gikii VI talk in Gothenburg.
Overcoming Cultural Agoraphobia

View more presentations from rcorrigan.
(Apologies for inaccessible links on slide 12 - behind OU firewall)

A case study in overcoming cultural agoraphobia

I’m going to take you through a whistle-stop tour of the development of the open education resource (OER) platform at the Open University.  In reality it’s a more complex story than I’ve got the time to tell, so forgive me if I skim over parts you’d like to have more detail on. We can cover some of them in the Q&A at the end.

My guilty Gikii past ranges from tales of warring monks and Maxwell’s demon on the Internet to algebra with tiddlywinks but on with the story.

52 years ago CP Snow stood up in the Cambridge University senate and gave his “two cultures” lecture outlining the damaging divide between “literary intellectuals” and natural scientists which was interfering with our capacity as a society to deploy science and technology for the public good.

50 years on James Boyle articulated an, IMHO, equally important divide for the 21^st century – the clash between the desire for openness and unfettered creativity and the desire for control, order and lock down.  Interestingly you find Snow’s two cultures on both sides of the Boyle divide.  Additionally, Boyle suggested, we are mostly culturally agoraphobic – inclined towards order and control.

For those of you who don’t know the Open University, we’re the largest university in the UK with about 200,000 students and we do supported open & distance learning. We create, write, publish and produce all our own textbooks and multimedia materials and these are specially designed for students studying at a distance i.e. not on a traditional bricks and mortar campus. The OU is deeply committed to open education and social justice and our courses are open to anyone – there are no entry qualifications.

This video from our YouTube channel will give you a rough idea what we’re about.

Cue video.

Around about the year 2000 a few people at the OU thought we needed to get into the OER game and approached the then Vice Chancellor (VC). He was quite taken by the idea and even supplied some funding to start a small project in the area.  That was a really interesting project and had a sound set of principles but for a variety of reasons didn’t take off. Then Creative Commons (CC) was founded and MIT’s OpenCourseWare (OCW) was announced in 2001, the latter then launched with 50 pilot courses in 2002. So OERs were on the education agenda.

In 2002 the first CC licenses were released and the OU got a new VC  and I wrote a short online netlaw course based on Larry Lessig’s book The Future of Ideas.

This is a screenshot of the welcome screen. A version of this course is still available at the link shown.  The best bits were the cartoons I commissioned from a talented artist by the name of Tony Seldon.  Some colleagues, who are not lawyers, liked my abridged guide to Lessig for 6-year-olds.

We ran the course for credit for a couple of years but only got 400 students so decided to discontinue it in 2004.  Around that time the VC had some informal contact with the Hewlett Foundation which had been involved in funding OCW at MIT and were particularly impressed by the quality of the OU’s educational materials. She asked a senior management colleague to find out about open source and OER and he was briefed by my friend and colleague John Naughton, the OU Professor for the Public Understanding of Technology, who some of you will know as the internet correspondent for the Observer newspaper.  At the time the OU was also going through major re-branding and futures planning exercises. 

So as an institution we were exceptionally busy with standard operational processes and planning for the future.  Serious professional business ideas were the order of the day.  Hence we were pretty much too busy to think deeply about giving our stuff away for free.  After all the bulk of our income is derived, as per conventional universities, from student fees and the government grant that each student attracts.

Meanwhile a few of us decided the Lessig course was too important to be archived inaccessibly and, since we were no longer signing up revenue generating students, thought it would be a good idea to make it available openly under a CC BY-NC-SA license.  This gave the material a new lease of life after I announced it on various forums and listservs and we actually had more visitors to the site within a couple of weeks of openly releasing it than we’d had formal students in the two years the course ran for credit.  It was a really interesting experiment.

Then it became known amongst the OU senior management that I’d released the material CC.  There was concern and interest (probably in equal measure and sometimes from the same people). It was also becoming evident in the OU that the Hewlett Foundation were very serious about putting substantial funding into OERs. So even though we were busy as an institution a combination of factors came together which resulted in the OER question becoming an important one at senior level in the OU.  And the environment was right for an institutional discussion on the matter. 

But it also meant, three weeks into my little CC experiment, I was asked by the OU hierarchy to take my netlaw course site down; until we worked out if we wanted to be in the OER game at all and if we did then it could be incorporated in a proper OER site if and when that happened.

We did then have a mature institutional debate on the subject of OERs.  A task group was formed to look into it and reported to Academic Board and Council in the summer of 2005. Genuine questions were raised about sustainable business models for OERs. The task group advised we could neither fully commit to putting all our material online for free nor completely reject the idea. And in principle if we were going to do it we should do so on a big scale. Broadly speaking, though there were concerns and opposition, when we went through the process of talking and thinking about it, the idea of an OU OES received a lot of support.

We agreed to explore the idea further with the aid of a $250,000 grant from the Hewlett Foundation. We then sent them a proposal for a next generation, “robust” and “scalable” OES in November 2005. The HF got 5 reviewers to comment on the proposal by December 2005. Their main issues were

1. that we were potentially being a bit ambitious in our desire to make 13,000 hours worth of material available in two years.
2. and  we were considering using a bespoke license similar to the one developed by the BBC at the time for the BBC archive.  At the time the Hewlett Foundation were open to debate about CC licensing but asked us to think about whether it would be the right way to go. Now they are committed to CC.

We put in a revised proposal in January 2006 saying we could do it in 2 years and we would run with a CC BY-NC-SA license.

In February 2006, the Hewlett Foundation Board agreed to fund an OU OER to the tune of $8.9 million.

OpenLearn was subsequently launched in the autumn of 2006 with 900 hours of content.  It’s since expanded to iTunesU and YouTube etc.

Conclusions?

Firstly you need to understand I’ve only given you a brief outline of the story.

Secondly James Boyle was right when he said we’re naturally predisposed towards cultural agoraphobia. Hey I remember thinking “that’ll never work” when Jimmy Wales started Wikipedia.

But that natural cultural agoraphobia we have as individuals also becomes part of the psyche of the institutions we work for and belong to.  Even open institutions like the Open University, dedicated to open education and social justice.

Thirdly, it can be difficult, when there are other institutional priorities but sometimes you’ve just got to break through the logjam and get a rational and mature discussion going both to air the genuine concerns – what is a sustainable business model for OERs? – and to shine a light on our cultural agoraphobia as individuals and as institutions, public and private.

Fourthly even when you have exposed the cultural agarophobia don’t expect everyone to abandon their preference for control over openness. The process is a success if you’ve got people to seriously consider their position in a deep, rational and mature way. After all openness is not a panacea and no one has yet really cracked the sustainable business model for OERs.

The final lesson is that the internet is great, web 2.0, 3.0 and who knows what else is to come in terms of modern communications tools, are all great. But it is the people that make a difference.  Whether that is in building OERs or demonstrating on the streets against hostile regimes through the Arab spring, putting people in touch with people is what changes the world.

If you have been, thanks for listening.

RC.

PS From August 2009 to July 2010 there were:

•             over 1.5M video views on OU YouTube channel

•             17.2M downloads from OU on iTunesU

•             3.1M unique visitors to LearningSpace and

•             Just under 0.25M exploring multiple pages on Open Learn 

Update: lots of interest in the abridged guide to Lessig for six-year-olds.  Links to audio and transcript here. Also I neglected to put a link to the Open Source Teaching Project in the slides, so here it is.

US Supreme Court oks pharmaceutical companies' data mining

On Wednesday, by a majority of 6-3, the US Supreme Court declared the State of Vermont's attempt to protect medical privacy, by restricting data mining of patient information, unconstitutional. In Sorrell v. IMS Health Inc., No. 10–779, the Court said:

"Pharmaceutical manufacturers promote their drugs to doctors through a process called “detailing.” Pharmacies receive “prescriber-identifying information” when processing prescriptions and sell the information to “data miners,” who produce reports on prescriber be-havior and lease their reports to pharmaceutical manufacturers. “Detailers” employed by pharmaceutical manufacturers then use the reports to refine their marketing tactics and increase sales to doctors.Vermont’s Prescription Confidentiality Law provides that, absent theprescriber’s consent, prescriber-identifying information may not besold by pharmacies and similar entities, disclosed by those entities for marketing purposes, or used for marketing by pharmaceutical manufacturers. Vt. Stat. Ann., Tit. 18, §4631(d). The prohibitionsare subject to exceptions that permit the prescriber-identifying in-formation to be disseminated and used for a number of purposes, e.g., “health care research.” §4631(e).Respondents, Vermont data miners and an association of brand-name drug manufacturers, sought declaratory and injunctive relief against state officials (hereinafter Vermont), contending that §4631(d) violates their rights under the Free Speech Clause of theFirst Amendment. The District Court denied relief, but the Second Circuit reversed, holding that §4631(d) unconstitutionally burdens the speech of pharmaceutical marketers and data miners without adequate justification.
Held:
1. Vermont’s statute, which imposes content- and speaker-basedburdens on protected expression, is subject to heightened judicialscrutiny. Pp. 6–15."

Bottom line: pharmaceutical companies get first amendment protection for marketing based on data mining which blows a hole in the principle of patient confidentiality. Justices Breyer, Ginsburg and Kagan dissented.

"The Vermont statute before us adversely affects expres-sion in one, and only one, way. It deprives pharmaceuticaland data-mining companies of data, collected pursuant tothe government’s regulatory mandate, that could help pharmaceutical companies create better sales messages. In my view, this effect on expression is inextricably related to a lawful governmental effort to regulate a commercial enterprise. The First Amendment does not require courts to apply a special “heightened” standard of review whenreviewing such an effort. And, in any event, the statutemeets the First Amendment standard this Court has previously applied when the government seeks to regulatecommercial speech. For any or all of these reasons, the Court should uphold the statute as constitutional...

In short, the case law in this area reflects the need to ensure that the First Amendment protects the “market-place of ideas,” thereby facilitating the democratic creation of sound government policies without improperly hamper-ing the ability of government to introduce an agenda, to implement its policies, and to favor them to the exclusion of contrary policies. To apply “heightened” scrutiny whenthe regulation of commercial activities (which often in-volve speech) is at issue is unnecessarily to undercut the latter constitutional goal. The majority’s view of this case presents that risk.

Moreover, given the sheer quantity of regulatory initia-tives that touch upon commercial messages, the Court’svision of its reviewing task threatens to return us to ahappily bygone era when judges scrutinized legislation for its interference with economic liberty. History shows that the power was much abused and resulted in the constitu-tionalization of economic theories preferred by individualjurists. See Lochner v. New York, 198 U. S. 45, 75–76 (1905) (Holmes, J., dissenting). By inviting courts to scrutinize whether a State’s legitimate regulatory inter-ests can be achieved in less restrictive ways whenever they touch (even indirectly) upon commercial speech, today’s majority risks repeating the mistakes of the pastin a manner not anticipated by our precedents...

The upshot is that the only commercial-speech-relatedharm that the record shows this statute to have brought about is the one I have previously described: The with-holding of information collected through a regulatoryprogram, thereby preventing companies from shaping a commercial message they believe maximally effective. The absence of precedent suggesting that this kind of harm is serious reinforces the conclusion that the harm here is modest at most...

The legitimate state interests that the statute serves are “substantial.” ...

These objectives are important. And the interests they embody all are “neutral” in respect to speech. Cf. ante, at
24.
The protection of public health falls within the tradi-tional scope of a State’s police powers. Hillsborough County v. Automated Medical Laboratories, Inc., 471 U. S. 707, 719 (1985). The fact that the Court normally exemptsthe regulation of “misleading” and “deceptive” information even from the rigors of its “intermediate” commercial speech scrutiny testifies to the importance of securing“unbiased information,” see 44 Liquormart, 517 U. S., at 501 (opinion of Stevens, J.); Central Hudson, supra, at 563, as does the fact that the FDA sets forth as a federal regulatory goal the need to ensure a “fair balance” of information about marketed drugs, 21 CFR §§202.1(e)(1),202.1(e)(5)(ii). As major payers in the health care system,health care spending is also of crucial state interest. And this Court has affirmed the importance of maintaining“privacy” as an important public policy goal—even in respect to information already disclosed to the public for particular purposes (but not others). See Department of Justice v. Reporters Comm. for Freedom of Press, 489 U. S. 749, 762–771 (1989); see also Solove, A Taxonomy of Privacy...

At the same time, the record evidence is sufficient to permit a legislature to conclude that the statute “directly advances” each of these objectives. The statute helps tofocusmanufac-turers likely possess. They have little, if anything, to dowith the name or prior prescription practices of the par-ticular doctor to whom a detailer is speaking. Shaping a detailing message based on an individual doctor’s prior prescription habits may help sell more of a particular manufacturer’s particular drugs. But it does so by divert-ing attention from scientific research about a drug’s safety and effectiveness, as well as its cost. This diversion comes at the expense of public health and the State’s fiscal interests...

The prohibition against pharmaceutical firms using this prescriber-identifying information works no more than modest First Amendment harm; the prohibition is justified by the need to ensure unbiased sales presentations, prevent unneces-sarily high drug costs, and protect the privacy of prescrib-ing physicians. There is no obvious equally effective, more limited alternative...

In sum, I believe that the statute before us satisfies the “intermediate” standards this Court has applied to restric-tions on commercial speech. A fortiori it satisfies less demanding standards that are more appropriately applied in this kind of commercial regulatory case—a case where the government seeks typical regulatory ends (lower drugprices, more balanced sales messages) through the use of ordinary regulatory means (limiting the commercial use of data gathered pursuant to a regulatory mandate). The speech-related consequences here are indirect, incidental, and entirely commercial.

Regardless, whether we apply an ordinary commercialspeech standard or a less demanding standard, I believe Vermont’s law is consistent with the First Amendment. And with respect, I dissent."

Let me repeat that -  the "prohibition against pharmaceutical firms using this prescriber-identifying information works no more than modest First Amendment harm; the prohibition is justified by the need to ensure unbiased sales presentations, prevent unnecessarily high drug costs, and protect the privacy of prescribing physicians. There is no obvious equally effective, more limited alternative".

Basically you don't harm the principle of freedom of expression by upholding the principle of  patient confidentiality through restricting pharmaceutical companies' ability to engage in unrestricted data mining which undermines medical privacy and leads to unnecessarily high drug costs.

Council of Europe Human Rights Commissioner Media Freedom Lectures

The Council of Europe's Commissioner for Human Rights, Thomas Hammarberg, has been hosting a series of lectures and discussions on media freedom and human rights. Lectures number 4 and 5 in the series, in partnership with ARTICLE 19 and the London Metropolitan University, took place at the Free Word Centre in London on Friday last. In a world of live blogging and Twitter it's probably a bit quaint to be writing a blog post about the event four days later. Nevertheless this is the first opportunity I've had to do so, so...

ARTICLE 19's Nabila Ramdani and Boyko Boev spoke about 'The Role of Public Service Media for Human Rights' during the morning session and Douwe Korff waxed lyrical on the subject of 'Social Media, Political Activism and Human Rights' in the afternoon. The latter paper was a joint production done with Ian Brown of the Oxford Internet Institute.

Previous lectures have focussed on 1. ethical journalism in human rights and media self regulation, 2. freedom of information and 3. the protection of journalists, particularly investigative journalists. The final lecture in the series will cover media diversity and will take place in Vienna in a couple of weeks.

Commissioner Hammarberg's plan is to use the lectures and associated discussions as the basis of a book on media freedoms and human rights due to be published later this year.

The ARTICLE 19 paper identified a series of common characteristics of public service media:

1. They should form part of a tripartite system where public service and commercial media co-exist with community media
2. they should be accessible by everyone or subject to general availabilty
3. they should have a specific public service remit (as per article 3 of the BBC Charter, for example)
4. they should be independent of both state and commercial interests
5. they should be impartial, objective and dispassionate and represent the interests of as many social groups as possible
6. they should be publicly accountable

The authors of the paper then went on to discuss the problems with migrating to public service media in many countries which don't have the benefit of a PSM set up like the BBC.  The BBC was held up repeatedly as a bastion of virtue and the model to aspire to.  Now whereas we should be grateful for what we've got in the UK in relation to the BBC and it is infinitely better than regimes where public service media is another description for government propaganda machine, we need to be pretty vigilant about successive governments' efforts to undermine the BBC and the corporation's own complicity in that regard, in addition to its less-than-public-service ethos in relation to issues like DRM on HD broadcasts.

Boyko Boev also suggested that in thinking about injecting a human rights agenda into public service media, there was a need for formal structural inputs from human rights defenders (NGOs etc) and international human rights organisations, into the usual bounded government/psm institution(eg BBC)/regulator(eg Ofcom)/viewer-listener bounded public service media system.

The subsequent discussion was wide ranging but there were a few key points worth mentioning. Firstly Commissioner Hammarberg noted that one of the major problems in this whole area is in the allocations of spectrum frequencies.  Too true and the concentrated control of the technology is something that is frequently overlooked. He also explained his serious concerns, in the decade of the "war on terror", in relation to European authoriatarian tendencies and the spread of hatred and xenophobia.

There was general concern noted by the audience and the commissioner about the way the media laws were changed in Hungary and the way that criticism of the changes was handled by the Hungarian government.  There was also a general consensus that the EU repsonse to what happened in Hungary was weak and distasteful and that the EU has failed miserably in facilitating accession to the Union by numerous states who have no effective press regulations/protections.  Four long standing member states have no press regulation at all and the prospects of enhancing human rights through public service media are virtually zero if there are no effective protections in place in such states.

Douwe Korff, in the afternoon, engaged in a simultaneously entertaining and somber legal analysis of social media, political activism and human rights, prompted by conventional media's interest in such issues in the context of the Arab spring.  He talked about social media revolutionising mainstream journalism and acting as a solvent on the control of traditional media on news production; and also as a kind of a solvent on the law and the holy grail of legal clarity and certainty.

Primarily he was concerned with internet blocking, takedown and surveillance and warned that the deep packet inspection that is fundamental to such activities is dangerous technology.  He and Ian have concluded that internet blocking:

• is ineffective at blocking illicit material (false positive)
• blocks legal content (false negative)
• sometimes assists access to illicit material - eg organised paedophile gangs find it easy to get access to "secret" lists of banned websites
• does not achieve the aim of removing illegal websites from the Net
• does absolutely nothing to protect children from abuse and on the contrary gives EU member states an excuse to ignore the problem by pretending it doesn't exist

All states, including Western liberal democracies, want to block something and internet blocking is often based on vague arbitrary laws - you only have to look at the HADOPI regulations in France or the Digital Economy Act in the UK to see that.  The blocking also often relies on secret banned lists, collated by unaccountable quangos, public or private, in dark smokey rooms (though with the anti-smoking laws now in place in the UK I guess the smokey rooms are no longer smokey. Of course we don't know, since it's done in secret).  These blocking provisions additionally tend to ignore due process - website owners get to know about the blocking after the event and it can be difficult to challenge.

Yet the blocking is pretty easy to bypass by people who know what they are doing and criminal gangs engaged in nefarious activities who have ready access to people who can facilitate such circumvention.

Professor Korff went on to warn of the power of the internet as a panopticon - the Net essentially facilitates mass surveillance of online activities and Net surveillance is linked to real world surveillance. Regardless of the relative amount of time we spend on the Net we live in the real world.

He suggested there were three key issues in relation to getting some kind of control/oversight of this ubiquitous surveillance:

1. the "margin of appreciation" doctrine of the European Court of Human Rights i.e. the leeway individual member states have to interpret human rights obligations as they see fit - hence the variation in the implemention of the convention in different countries
2. the internet is largely controlled by the private sector, their primary interest being to make money not operate in accordance with the principles of the European Convention on Human Rights, which they have no formal obligations to respect in any case
3. the rules on internet blocking are arbitrary, opaque and unchallengable - hence undermine the rule of law and due process

On the margin of appreciation, whereas this works quite well offline, respecting local cultures, laws and economies, in the online context states should no longer be given the protection of the over-generous application of the margin of appreciation. We cannot, for example, have jurisdiction shopping leading to a situation where the most restrictive laws on speech apply everywhere.  Ian and Douwe recommend that we restrict the application of the margin of appreciation doctrine to deal with the reality of the Net - the pretence that states can stop a sea of internet information at their borders is unsustainable. In a practical sense, if someone in the UK accesses smut in breach of UK obscenity laws then make them liable.  But don't hold the website owner liable if that site is hosted overseas, is not illegal in that jurisdiction and is not targetted at the UK, on the preponderance of evidence.

On the issue of private sector organisations controlling internet technologies and having no obligation to comply with human rights regulations, the authors effectively recommend that the contraints of the European Convention on Human Rights apply to such organisations in the context of internet governance.  The detail of how this would be done is not entirely clear.  But in principle it would work through these organisations agreeing to sign up to an internet charter of principles, based on the Convention and emerging constitutional-type principles of internet governance, in exchange for being able to benefit from the avoidance of intermediary liability of the kind facilitated by the ecommerce directive of 2001.

Finally they recommend that the rule of law should apply to the internet especially in relation to political activity. No secret compilations or deployment of secret blocking lists.  All restrictions of rights should be based on clear, accessible, transparent, foreseeable, proportionate, necessary, effective, regulations; no arbitrary unchecked authority, no bypassing of due process; absolutely no excuses for mass, suspicionless, warrantless surveillance e.g. data retention; and these rules should not be limited to government and public sector activities but also apply to the private sector that effectively controls the technologies of the internet and, in a real practical sense, the control of the governance of the internet is inherent in the control of that  technological architecture.

Nice to round off the day with some high principled idealism!

And thanks to ARTICLE 19 for inviting me.

Microsoft lose i4i patent case in US Supreme Court

Microsoft has lost their appeal to the US Supreme Court in their patent dispute with i4i.

"In asserting patent invalidity as a defense to an infringement action, analleged infringer must contend with §282 of the Patent Act of 1952 (Act), under which “[a] patent shall be presumed valid” and “[t]he burden of establishing invalidity . . . shall rest on the party asserting”it. Since 1984, the Federal Circuit has read §282 to require a defen-dant seeking to overcome the presumption to persuade the factfinder of its invalidity defense by clear and convincing evidence. Respondents (collectively, i4i) hold the patent at issue, which claims an improved method for editing computer documents. After i4i sued petitioner Microsoft Corp. for willful infringement of thatpatent, Microsoft counterclaimed and sought a declaration that the patent was invalid under §102(b)’s on-sale bar, which precludes pat-ent protection for any “invention” that was “on sale in this country” more than one year prior to the filing of a patent application. The parties agreed that, more than a year before filing its patent applica-tion, i4i had sold a software program known as S4 in the UnitedStates, but they disagreed over whether that software embodied the invention claimed in i4i’s patent. Relying on the undisputed fact thatthe S4 software was never presented to the Patent and TrademarkOffice (PTO) during its examination of the patent application, Micro-soft objected to i4i’s proposed jury instruction that the invalidity de-fense must be proved by clear and convincing evidence. The District Court nevertheless gave that instruction, rejecting Microsoft’s alter-native instruction proposing a preponderance of the evidence stan-dard. The jury found that Microsoft willfully infringed the i4i patentand had failed to prove the patent’s invalidity. The Federal Circuit affirmed, relying on its settled interpretation of §282.

Held: Section 282 requires an invalidity defense to be proved by clear and convincing evidence. Pp. 5–20.
(a)
The Court rejects Microsoft’s contention that a defendant need only persuade the jury of a patent invalidity defense by a preponder-ance of the evidence. Where Congress has prescribed the governing standard of proof, its choice generally controls. Steadman v. SEC, 450 U. S. 91, 95. Congress has made such a choice here. While §282includes no express articulation of the standard of proof, where Con-gress uses a common-law term in a statute, the Court assumes the“term . . . comes with a common law meaning.” Safeco Ins. Co. of America v. Burr, 551 U. S. 47, 58. Here, by stating that a patent is“presumed valid,” §282, Congress used a term with a settled common-law meaning. Radio Corp. of America v. Radio Engineering Labora-tories, Inc., 293 U. S. 1 (RCA), is authoritative. There, tracing nearly a century of case law, the Court stated, inter alia, that “there is a presumption of [patent] validity [that is] not to be overthrown except by clear and cogent evidence,” id., at 2. Microsoft’s contention that the Court’s pre-Act precedents applied a clear-and-convincing stan-dard only in two limited circumstances is unavailing, given the ab-sence of those qualifications from the Court’s cases. Also unpersua-sive is Microsoft’s argument that the Federal Circuit’s interpretationmust fail because it renders superfluous §282’s additional statementthat “[t]he burden of establishing invalidity . . . shall rest on the party asserting” it. The canon against superfluity assists only where a competing interpretation gives effect “ ‘to every clause and word of a statute.’ ” Duncan v. Walker, 533 U. S. 167, 174. Here, no inter-pretation of §282 avoids excess language because, under either of Mi-crosoft’s alternative theories—that the presumption only allocatesthe burden of production or that it shifts both the burdens of produc-tion and persuasion—the presumption itself would be unnecessary in light of §282’s additional statement as to the challenger’s burden. Pp. 5–13.
(b)
Also rejected is Microsoft’s argument that a preponderance standard must at least apply where the evidence before the factfinder was not before the PTO during the examination process. It is true enough that, in these circumstances, “the rationale underlying thepresumption—that the PTO, in its expertise, has approved theclaim—seems much diminished,” KSR Int’l Co. v. Teleflex Inc., 550
U.
S. 398, 426, though other rationales may still animate the pre-sumption. But the question remains whether Congress has specifiedthe applicable standard of proof. As established here today, Congressdid just that by codifying the common-law presumption of patent va-lidity and, implicitly, the heightened standard of proof attached to it. The Court’s pre-Act cases never adopted or endorsed Microsoft’s fluc-

tuating standard of proof. And they do not indicate, even in dicta, that anything less than a clear-and-convincing standard would everapply to an invalidity defense. In fact, the Court indicated to the con-trary. See RCA, 293 U. S., at 8. Finally, the Court often applied theheightened standard of proof without mentioning whether the rele-vant prior-art evidence had been before the PTO examiner, in cir-cumstances strongly suggesting it had not. See, e.g., Smith v. Hall, 301 U. S. 216, 227, 233. Nothing in §282’s text suggests that Con-gress meant to depart from that understanding to enact a standard of proof that would rise and fall with the facts of each case. Indeed, had Congress intended to drop the heightened standard of proof wherethe evidence before the jury varied from that before the PTO, it pre-sumably would have said so expressly. Those pre-Act cases wherevarious Courts of Appeals observed that the presumption is weak-ened or dissipated where the evidence was never considered by the PTO should be read to reflect the commonsense principle that if thePTO did not have all material facts before it, its considered judgmentmay lose significant force. Cf. KSR, 550 U. S., at 427. Consistent with that principle, a jury may be instructed to evaluate whether theevidence before it is materially new, and if so, to consider that factwhen determining whether an invalidity defense has been proved by clear and convincing evidence. Pp. 14–18.
(c) This Court is in no position to judge the comparative force of theparties’ policy arguments as to the wisdom of the clear-and-convincing-evidence standard that Congress adopted. Congressspecified the applicable standard of proof in 1952 when it codified thecommon-law presumption of patent validity. During the nearly 30 years that the Federal Circuit has interpreted §282 as the Court does today, Congress has often amended §282 and other patent laws, butapparently has never considered any proposal to lower the standardof proof. Indeed, Congress has left the Federal Circuit’s interpreta-tion in place despite ongoing criticism, both from within the Federal Government and without. Accordingly, any recalibration of the stan-dard of proof remains in Congress’ hands. Pp. 18–20.
598 F. 3d 831, affirmed.
SOTOMAYOR, J., delivered the opinion of the Court, in which SCALIA, KENNEDY, GINSBURG, BREYER, ALITO, and KAGAN, JJ., joined. BREYER, J., filed a concurring opinion, in which SCALIA and ALITO, JJ., joined. THOMAS, J., filed an opinion concurring in the judgment. ROBERTS,
C. J., took no part in the consideration or decision of the case."

It was a technical legal challenge where Microsoft were trying to get the Court to accept that they could prove i4i's patent was invalid "by a preponderance of the evidence" rather than the prevailing standard that "clear and convincing evidence" is required to invalidate a patent.

I actually have some sympathy with Microsoft in this instance for reasons elucidated in chapter 6 of the recent Hargreaves review but there was a slim chance that such a challenge would succeed given the legal precedents in the US. Hargreaves (which I'll write about in more detail when I get the chance) succinctly explains the problems of economic gridlock associated with patent thickets.  There's been a huge growth over the past twenty years in applications for computer technology patents. Patent offices around the world just don't have the resources to cope and that's partly the reason that so many ridiculous technology patents see the light of day.  But as Hargreaves says:

"6.17 ... the evidence that patenting supports innovation is weaker in
computer technology and telecoms than in other areas. In these industries, inventions are nearly
always “sequential,” where innovation builds cumulatively on previous inventions and innovations,
rather than non-sequential, where a patent generally corresponds to a single product and knowledge
is not particularly cumulative.

6.18 Research has established that patents encourage innovation in non-sequential fields where upfront costs are high, such as drug development.12,13,14,15,16 But with the growing importance of sequential technologies, innovation across the economy is becoming more cumulative and collaborative in nature, building on previous inventions and innovations. The “patent model” of incentives works less well for these industries, where initial cost does not dominate to the same extent the cost of subsequent reproduction. Further, in a strongly sequential environment it is often unclear where the boundaries of protection afforded by one patent lie in comparison with another. This compounds the thickets problem discussed above.

6.19 Industries working in sequential technologies therefore face a “double whammy”: the incentives provided by patents are reduced, while the negative consequences, in the form of thickets which must be navigated, are increased. This means that while for non-sequential inventions, such as a new drug or medical treatment, having a patent system generally yields higher welfare than not having one; in a fully sequential case, higher welfare and more innovation may be more likely to result from the absence of patenting opportunities.17 Over time, as digital technology becomes pervasive across the economy, this represents a serious concern."

Microsoft are indeed facing a double whammy with this one, hence the sympathy with their position of wanting to dilute the threshold evidence base for invaliding patents in the area of computer technologies. However the sympathy is somewhat tempered by the fact that Microsoft have been guilty of playing and litigating the defensive (and offensive) patent portfolio game too.

EDPS recommends abolition of data retention directive

The EU Data Protection Supervisor, Peter Hustinix, has issued a strongly worded opinion saying the data retention directive is incompatible with the EU's privacy protections; and that the directive has failed to meet its primary objective of harmonising the laws of member states on data retention.

"VI. Conclusion

83. The EDPS is pleased that, although not strictly required by Article 14 of the Data
Retention Directive, the Commission also took into account in the Evaluation report
the implications of the Directive for fundamental rights. 

84. The Evaluation report shows that the Directive has failed to meet its main purpose, namely to harmonise national legislation concerning data retention. Such a lack of harmonisation is detrimental to all parties involved: citizens, business operators as well as law enforcement authorities.

85. On the basis of the Evaluation report it may be concluded that the Data Retention Directive does not meet the requirements set out by the rights to privacy and data protection, for the following reasons:

- the necessity of data retention as provided for in the Data Retention Directive has not been sufficiently demonstrated; - data retention could have been regulated in a less privacy-intrusive way; - the Data Retention Directive lacks foreseeability.

86. The EDPS calls upon the Commission to consider seriously all options in the impact assessment including the possibility of repealing the Directive, either per se or combined with a proposal for an alternative, more targeted EU measure.

87. A future Data Retention Directive could be considered only if there were agreement on the need for EU rules from the perspective of the internal market and police and judicial cooperation in criminal matters and if, during the impact assessment, the necessity of data retention, supported and regulated by the EU, could be sufficiently demonstrated, which includes a careful consideration of alternative measures. Such an instrument should fulfil the following basic requirements:

- It should be comprehensive and genuinely harmonise rules on the obligation to retain data, as well as on the access and further use of the data by competent authorities. - It should be exhaustive, which means that it has a clear and precise purpose and the legal loophole which exists with Article 15(1) of the ePrivacy Directive is closed. - It should be proportionate and not go beyond what is necessary."

 Just to be clear - 

1. the need for data retention has not been justified
2. data retention is incompatible with data protection and privacy regulations
3. the effects of data retention are unpredictable
4. the directive has failed in its aim to harmonise the laws of member states on data retention
5. the EU should abolish the data retention directive
6. having abolished it, if the EU are to consider data retention directive version 2.0 they'd better produce strong evidence in advance that it is necessary, proportionate and very clearly and narrowly focussed

That's a pretty succinct and damning assessment.

BBC acknowledge FoI request on HD DRM

I've received an acknowledgement from the BBC of my freedom of information request on the HD DRM issue.

FOI Enquiries
British Broadcasting Corporation

7 June 2011

Dear Ray

Thank you for your request for information under the Freedom of
Information Act 2000, about communications with OFCOM relating to the
consultation on content management on the HD Freeview platform which was
received on 6th June 2011. We shall deal with your request as promptly
as possible and, at the latest, within 20 working days. If you have any
queries about your request please contact us at the address below.

The reference number for your request is RFI20110637.

Kind regards

BBC Information Policy and Compliance 

BBC Freedom of Information
Room 2252, White City
201 Wood Lane
London W12 7TS, UK

Website: www.bbc.co.uk/foi
Email: [BBC request email]
Tel:             020 8008 2883      
Fax: 020 8008 2398

show quoted sections

Link to this

Ofcom and BBC DRM: further FoI requests

Before launching an appeal with the Information Commissioner about Ofcom's refusal to disclose the key arguments of UK broadcasters on the HD DRM consultation, I've decided to send both Ofcom and the BBC a couple of further freedom of information requests. I include copies of both requests below.

BBC stance on Freeview HD DRM

Dear British Broadcasting Corporation,

I would like to make a freedom of information request for full and
complete copies of all the BBC 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

Yours faithfully,

Ray Corrigan

http://www.whatdotheyknow.com/request/bbc_stance_on_freeview_hd_drm#outgoing-131921 

Ofcom u-turn on BBC DRM

Dear Office of Communications,

I would like to make a freedom of information request for full and
complete copies of the documents:

(a) recording and explaining the reasons behind Ofcom's decision in
2009 to abandon its long standing opposition to the idea of the BBC
adding digital rights management technology to its high-definition
broadcasts and

(b) outlining the decision making process leading to the Ofcom
public consultation 'Content management on the HD Freeview
platform' (Start date: 22 January 2010, End
date: 02 April 2010).

Yours faithfully,

Ray Corrigan

http://www.whatdotheyknow.com/request/ofcom_u_turn_on_bbc_drm#outgoing-131926