Thursday, May 20, 2004
John Lettice continues to warm to his theme on ID cards over at the Register.
"Regular readers
will recall that Home Secretary David Blunkett justifies the ID card scheme on the basis
that most of the cost is money we'd have to spend anyway, because we need to upgrade
our passports to meet US and ICAO (International Civil Aviation Organisation)
standards...
...when David Blunkett tells us that what he is
proposing is necessitated almost entirely by the new passport regime, he is simply (as
we've pointed out before) not telling the truth. ICAO's requirements are for a biometric
machine-readable passport, with the face as the primary biometric, and ICAO is entirely
silent on the subject of vast interlocking National Identity Register databases - if you want
to implement one of these, that's up to you, it's not compulsory. Similarly, the US wants
visitors' passports to be ICAO standard, which is only reasonable, given that the ICAO
standard seems to have been devised more or less in accordance with State Department
wishes. Once you've done that the US will happily (we fear, very happily) collect personal
information on the bearers all by itself - you don't have to do anything, and you never
know, they might even share some of it with you.
The biometric passport system the US intends to use simply seems to be an addition of
the necessary machine readable capabilities to the existing system. Passport applications,
including photograph, will still be accepted via mail, and the picture will then be encoded,
added to the database and put onto the chip that goes in the passport. As you may note,
a picture is in these terms a biometric, while a camera is a biometric reader, which they
are. But don't noise it around, or you'll screw the revenues of an awful lot of snake-oil
salesmen."
It's worth repeating that last sentence: As you may not, a picture is in these terms a biometric, while a camera is a biometric reader, which they are. But don't noise it around, or you'll screw the revenues of an awful lot of snake-oil salesmen.
Keep up the good work, John.
"Regular readers
will recall that Home Secretary David Blunkett justifies the ID card scheme on the basis
that most of the cost is money we'd have to spend anyway, because we need to upgrade
our passports to meet US and ICAO (International Civil Aviation Organisation)
standards...
...when David Blunkett tells us that what he is
proposing is necessitated almost entirely by the new passport regime, he is simply (as
we've pointed out before) not telling the truth. ICAO's requirements are for a biometric
machine-readable passport, with the face as the primary biometric, and ICAO is entirely
silent on the subject of vast interlocking National Identity Register databases - if you want
to implement one of these, that's up to you, it's not compulsory. Similarly, the US wants
visitors' passports to be ICAO standard, which is only reasonable, given that the ICAO
standard seems to have been devised more or less in accordance with State Department
wishes. Once you've done that the US will happily (we fear, very happily) collect personal
information on the bearers all by itself - you don't have to do anything, and you never
know, they might even share some of it with you.
The biometric passport system the US intends to use simply seems to be an addition of
the necessary machine readable capabilities to the existing system. Passport applications,
including photograph, will still be accepted via mail, and the picture will then be encoded,
added to the database and put onto the chip that goes in the passport. As you may note,
a picture is in these terms a biometric, while a camera is a biometric reader, which they
are. But don't noise it around, or you'll screw the revenues of an awful lot of snake-oil
salesmen."
It's worth repeating that last sentence: As you may not, a picture is in these terms a biometric, while a camera is a biometric reader, which they are. But don't noise it around, or you'll screw the revenues of an awful lot of snake-oil salesmen.
Keep up the good work, John.
James Heald of FFII tells me:
"First indications are that the Irish presidency has secured political
approval for a new draft of the controversial software patents directive
in a meeting of the Council of Ministers today -- by 4 votes.
Belgium (5), Denmark (3), Italy (10), Spain (8) and Austria (4) refused
to support the new text.
Estonia (3) voted against.
That made 33 votes refusing to support the text -- a mere 4 votes short
of the 37 needed to block it.
The support of Germany, with 10 votes, was crucial.
The Irish were only able to get their proposal through with the support
of Germany, which had been previously been pressing for much tighter
restrictions.
It is believed that an amendment was found to satisfy German concerns,
but the details are still emerging."
So Germany voted for, in spite of previous speculation. And James later corrected this sligthly to say Estonia voted for and Spain actively voted against the proposal. ZDNet have a report on the vote.
Ian Brown at FIPR is asking for support on the issue of the EU software patents directive, which the Irish presidency of the EU is currently trying to push through. Incidentally, Bertie Ahern's interest in software patents, it seems may stem from a little (just a little) bit more than his 'pass as many EU laws as you can' stance to the presidency. I undertand that Microsoft are sponsoring the Irish presidency, not that I'm implying that such sponsorship is anything other than above board and purely public spirited, of course.
Ian writes:
The UK government position has been set for some time as generally pro the original Commission proposal. The best thing to do now if you are
concerned about the directive is:
(a) Sign the EuroLinux petition:
http://petition.eurolinux.org/index_html?LANG=en
(b) Write to your MP (see http://www.ffii.org.uk/council.html for a
guide on the best way to go about this).
(b) You can see how your MEP voted last September on the directive at
http://www.ffii.org.uk/uk_meps.html. If your MEP (listed at
http://www.europarl.org.uk/uk_meps/MembersMain.htm) voted along the
lines outlined by the FFII (as did Caroline Lucas and Jean Lambert
(Green), Jeffrey Titford, Graham Booth and Nigel Farage (UKIP), John
Purvis, Jacqueline Foster, Martin Callanan and Theresa Villiers
(Conservative)) write to support that decision and state that it will
have a strong influence in how you vote in the European elections on 10
June. If they voted against the FFII-supported amendments, write to
politely explain why you hope they will vote differently in the Second
Reading, and that you look forward to their response to help you to
choose who to support in the European elections. The small turnout in
these elections mean that you can make a big difference by doing this!
Many thanks,
Ian.
"First indications are that the Irish presidency has secured political
approval for a new draft of the controversial software patents directive
in a meeting of the Council of Ministers today -- by 4 votes.
Belgium (5), Denmark (3), Italy (10), Spain (8) and Austria (4) refused
to support the new text.
Estonia (3) voted against.
That made 33 votes refusing to support the text -- a mere 4 votes short
of the 37 needed to block it.
The support of Germany, with 10 votes, was crucial.
The Irish were only able to get their proposal through with the support
of Germany, which had been previously been pressing for much tighter
restrictions.
It is believed that an amendment was found to satisfy German concerns,
but the details are still emerging."
So Germany voted for, in spite of previous speculation. And James later corrected this sligthly to say Estonia voted for and Spain actively voted against the proposal. ZDNet have a report on the vote.
Ian Brown at FIPR is asking for support on the issue of the EU software patents directive, which the Irish presidency of the EU is currently trying to push through. Incidentally, Bertie Ahern's interest in software patents, it seems may stem from a little (just a little) bit more than his 'pass as many EU laws as you can' stance to the presidency. I undertand that Microsoft are sponsoring the Irish presidency, not that I'm implying that such sponsorship is anything other than above board and purely public spirited, of course.
Ian writes:
The UK government position has been set for some time as generally pro the original Commission proposal. The best thing to do now if you are
concerned about the directive is:
(a) Sign the EuroLinux petition:
http://petition.eurolinux.org/index_html?LANG=en
(b) Write to your MP (see http://www.ffii.org.uk/council.html for a
guide on the best way to go about this).
(b) You can see how your MEP voted last September on the directive at
http://www.ffii.org.uk/uk_meps.html. If your MEP (listed at
http://www.europarl.org.uk/uk_meps/MembersMain.htm) voted along the
lines outlined by the FFII (as did Caroline Lucas and Jean Lambert
(Green), Jeffrey Titford, Graham Booth and Nigel Farage (UKIP), John
Purvis, Jacqueline Foster, Martin Callanan and Theresa Villiers
(Conservative)) write to support that decision and state that it will
have a strong influence in how you vote in the European elections on 10
June. If they voted against the FFII-supported amendments, write to
politely explain why you hope they will vote differently in the Second
Reading, and that you look forward to their response to help you to
choose who to support in the European elections. The small turnout in
these elections mean that you can make a big difference by doing this!
Many thanks,
Ian.
Have to say I was pleased with Tony Blair's calm response to the purple flour attacks in the House of Commons at Prime Minister's questions yesterday, both at the time and afterwards.
His calmness is in deep contrast to that of many of his parliamentary colleagues and the media hysteria about lack of security.
I hope, though doubt, that calm reason will prevail. Hysteria leads to measures which create the illusion of security without the reality. And that can lead to poorer security. And whatever one thinks of politicians as a breed it is a relief that no one was hurt or seriously injured in the incident.
His calmness is in deep contrast to that of many of his parliamentary colleagues and the media hysteria about lack of security.
I hope, though doubt, that calm reason will prevail. Hysteria leads to measures which create the illusion of security without the reality. And that can lead to poorer security. And whatever one thinks of politicians as a breed it is a relief that no one was hurt or seriously injured in the incident.
Tuesday, May 18, 2004
Bruce Schneier author of (the terrific)"Beyond Fear: Thinking Sensibly About Security in an Uncertain World" writes an op ed at NewsDay.
"Unfortunately, the debate often gets mischaracterized as a question
about how much privacy we need to give up in order to be secure.
People ask: "Should we use this new surveillance technology to
catch terrorists and criminals, or should we favor privacy and ban its
use?"
This is the wrong question. We know that new technology gives law
enforcement new search techniques, and makes existing techniques
cheaper and easier. We know that we are all safer when the police
can use them...
...What we need are corresponding mechanisms to prevent abuse. This
is the proper question: "Should we allow law enforcement to use new
technology without any judicial oversight, or should we demand that
they be overseen and accountable?" And the Fourth Amendment
already provides for this in its requirement of a warrant...
...The key is independent judicial
oversight; the warrant process is itself a security measure protecting
us from abuse and making us more secure.
Much of the rhetoric on the "security" side of the debate cloaks one
of its real aims: increasing law enforcement powers by decreasing its
oversight and accountability. It's a very dangerous road to take, and
one that will make us all less secure. The more surveillance
technologies that require a warrant before use, the safer we all are."
Schneier should be compulsory reading especially for lawmakers and journalists. They'd be much better informed though I doubt they'd be any less prone to engaging in the usual rhetoric. Rhetoric after all sells papers and wins arguments.
"Unfortunately, the debate often gets mischaracterized as a question
about how much privacy we need to give up in order to be secure.
People ask: "Should we use this new surveillance technology to
catch terrorists and criminals, or should we favor privacy and ban its
use?"
This is the wrong question. We know that new technology gives law
enforcement new search techniques, and makes existing techniques
cheaper and easier. We know that we are all safer when the police
can use them...
...What we need are corresponding mechanisms to prevent abuse. This
is the proper question: "Should we allow law enforcement to use new
technology without any judicial oversight, or should we demand that
they be overseen and accountable?" And the Fourth Amendment
already provides for this in its requirement of a warrant...
...The key is independent judicial
oversight; the warrant process is itself a security measure protecting
us from abuse and making us more secure.
Much of the rhetoric on the "security" side of the debate cloaks one
of its real aims: increasing law enforcement powers by decreasing its
oversight and accountability. It's a very dangerous road to take, and
one that will make us all less secure. The more surveillance
technologies that require a warrant before use, the safer we all are."
Schneier should be compulsory reading especially for lawmakers and journalists. They'd be much better informed though I doubt they'd be any less prone to engaging in the usual rhetoric. Rhetoric after all sells papers and wins arguments.
Bruce Schneier author of (the terrific)"Beyond Fear: Thinking Sensibly About Security in an Uncertain World" writes an op ed at NewsDay.
"Unfortunately, the debate often gets mischaracterized as a question
about how much privacy we need to give up in order to be secure.
People ask: "Should we use this new surveillance technology to
catch terrorists and criminals, or should we favor privacy and ban its
use?"
This is the wrong question. We know that new technology gives law
enforcement new search techniques, and makes existing techniques
cheaper and easier. We know that we are all safer when the police
can use them...
...What we need are corresponding mechanisms to prevent abuse. This
is the proper question: "Should we allow law enforcement to use new
technology without any judicial oversight, or should we demand that
they be overseen and accountable?" And the Fourth Amendment
already provides for this in its requirement of a warrant...
...The key is independent judicial
oversight; the warrant process is itself a security measure protecting
us from abuse and making us more secure.
Much of the rhetoric on the "security" side of the debate cloaks one
of its real aims: increasing law enforcement powers by decreasing its
oversight and accountability. It's a very dangerous road to take, and
one that will make us all less secure. The more surveillance
technologies that require a warrant before use, the safer we all are."
Schneier should be compulsory reading especially for lawmakers and journalists. They'd be much better informed though I doubt they'd be any less prone to engaging in the usual rhetoric. Rhetoric after all sells papers and wins arguments.
"Unfortunately, the debate often gets mischaracterized as a question
about how much privacy we need to give up in order to be secure.
People ask: "Should we use this new surveillance technology to
catch terrorists and criminals, or should we favor privacy and ban its
use?"
This is the wrong question. We know that new technology gives law
enforcement new search techniques, and makes existing techniques
cheaper and easier. We know that we are all safer when the police
can use them...
...What we need are corresponding mechanisms to prevent abuse. This
is the proper question: "Should we allow law enforcement to use new
technology without any judicial oversight, or should we demand that
they be overseen and accountable?" And the Fourth Amendment
already provides for this in its requirement of a warrant...
...The key is independent judicial
oversight; the warrant process is itself a security measure protecting
us from abuse and making us more secure.
Much of the rhetoric on the "security" side of the debate cloaks one
of its real aims: increasing law enforcement powers by decreasing its
oversight and accountability. It's a very dangerous road to take, and
one that will make us all less secure. The more surveillance
technologies that require a warrant before use, the safer we all are."
Schneier should be compulsory reading especially for lawmakers and journalists. They'd be much better informed though I doubt they'd be any less prone to engaging in the usual rhetoric. Rhetoric after all sells papers and wins arguments.
The Guardian is reporting that now that the EU council of foreign ministers has rubber stamped the Commission agreement to hand over airline passenger data to the US, the EU parliament's European Court of Justice challenge to the deal is rendered invalid.
Surely that can't be right? The processes involved need a serious review if it is. I don't care whether you're one of Jerry Kang's 'market' or 'dignity' ideologists in the privacy debate, allowing the circus of ministers to nod through an agreement to bypass that kind of ECJ challenge on principle doesn't work for me.
How does it stack against Kang's questions?
a) Who gets the initial entitlement? Well, it's a get out of jail card for the airlines who were caught between large US fines for not sharing data for homeland security and large EU fines for breaching data protection rules. On ideologies it's a nod to the market and the war on terrorism. The individual gets relegated to the choice of not flying if they don't want personal data transferred.
b) How will the choices get made? How is it ensured that the decisionmaker is fortified to do it well/effectively? I don't see much fortification for the individual here. How, for example can someone correct errors that may occur and accumulate? How can an individual opt out? The only way I can see is as above - don't fly.
c) What are the societal overrides? What are the allowable contexts within which we can override the rights/market actions of individuals? How to pick/adjudicate/etc. The article says "dietary requirements that could reveal religion, race or health" will not be included in the data transfers. We don't have any further detailed information on the small print here. One important 'how to' process - the ECJ challenge - would appear to have been neutered?
d) How much supporting information infrastructure needed to enforce? Quite a lot from a technical perspective alone and this is rapidly evolving on both sides of the atlantic with no fly lists and CAPPS II, for example. There are lots of issues of substance related to the development and deployment of these infrastructures alone e.g the design, collection rules, access rules, maintainance, error correction, identification, authentication, restrictive purpose, function creep etc.
Prof Kang would like us to explore issues of substance on all four questions rather than getting distracted by unproductive ideology. As he says, the key thing is the "fortifying of the individual" i.e. can you say yes(or no)?
That's an off the top of the head application of the Kang framework, so don't look too closely for holes.
Privacy International have been pretty quick to respond by updating their comprehensive report on the subject. They are disgusted.
"This report outlines how the European Commission failed outright at protecting EU interests and upholding EU laws within the negotiations with the U.S. Government. As a result, the U.S. Government
managed to get the Commission to concede European privacy rights and burdening EU carriers, even while U.S. carriers and U.S. citizens are exempt from these rules..." The report goes on to say that
The US Dept for Homeland Security get access to data from EU airlines but does not require similar access to US airline databases
The US therefore gets to test CAPPS II with EU data. (The Commission "believe" that the data will be removed from CAPPS II when the tests are complete. The actual agreement with the US is silent on this point).
The Commission is contemplating a central EU database to make the transfer of this data to the US easier.
The Commission wants EU law changed to allow law enforcement access to airline passenger data.
The Commission want access to US airline passenger data but have not negotiated this yet (Currently there don't seem to be any grounds in US law to allow such transfers).
The Commission are supporting a global airline passenger surveillance system through the Internation Civil Aviation Organisation.
The report goes on to say that the case for collecting all this information has never been made and that it is neither necessary nor proportionate (especially the collection of information in the pretence that it is to combat terrorism, when it will also be used for other purposes).
It certainly paints the EU delegation as pretty poor negotiators at best or active conspirators in the dismantling of the EU's proud privacy-as-fundamental-right (or as Prof Kang would call them, 'dignity') principles at worst.
Surely that can't be right? The processes involved need a serious review if it is. I don't care whether you're one of Jerry Kang's 'market' or 'dignity' ideologists in the privacy debate, allowing the circus of ministers to nod through an agreement to bypass that kind of ECJ challenge on principle doesn't work for me.
How does it stack against Kang's questions?
a) Who gets the initial entitlement? Well, it's a get out of jail card for the airlines who were caught between large US fines for not sharing data for homeland security and large EU fines for breaching data protection rules. On ideologies it's a nod to the market and the war on terrorism. The individual gets relegated to the choice of not flying if they don't want personal data transferred.
b) How will the choices get made? How is it ensured that the decisionmaker is fortified to do it well/effectively? I don't see much fortification for the individual here. How, for example can someone correct errors that may occur and accumulate? How can an individual opt out? The only way I can see is as above - don't fly.
c) What are the societal overrides? What are the allowable contexts within which we can override the rights/market actions of individuals? How to pick/adjudicate/etc. The article says "dietary requirements that could reveal religion, race or health" will not be included in the data transfers. We don't have any further detailed information on the small print here. One important 'how to' process - the ECJ challenge - would appear to have been neutered?
d) How much supporting information infrastructure needed to enforce? Quite a lot from a technical perspective alone and this is rapidly evolving on both sides of the atlantic with no fly lists and CAPPS II, for example. There are lots of issues of substance related to the development and deployment of these infrastructures alone e.g the design, collection rules, access rules, maintainance, error correction, identification, authentication, restrictive purpose, function creep etc.
Prof Kang would like us to explore issues of substance on all four questions rather than getting distracted by unproductive ideology. As he says, the key thing is the "fortifying of the individual" i.e. can you say yes(or no)?
That's an off the top of the head application of the Kang framework, so don't look too closely for holes.
Privacy International have been pretty quick to respond by updating their comprehensive report on the subject. They are disgusted.
"This report outlines how the European Commission failed outright at protecting EU interests and upholding EU laws within the negotiations with the U.S. Government. As a result, the U.S. Government
managed to get the Commission to concede European privacy rights and burdening EU carriers, even while U.S. carriers and U.S. citizens are exempt from these rules..." The report goes on to say that
The US Dept for Homeland Security get access to data from EU airlines but does not require similar access to US airline databases
The US therefore gets to test CAPPS II with EU data. (The Commission "believe" that the data will be removed from CAPPS II when the tests are complete. The actual agreement with the US is silent on this point).
The Commission is contemplating a central EU database to make the transfer of this data to the US easier.
The Commission wants EU law changed to allow law enforcement access to airline passenger data.
The Commission want access to US airline passenger data but have not negotiated this yet (Currently there don't seem to be any grounds in US law to allow such transfers).
The Commission are supporting a global airline passenger surveillance system through the Internation Civil Aviation Organisation.
The report goes on to say that the case for collecting all this information has never been made and that it is neither necessary nor proportionate (especially the collection of information in the pretence that it is to combat terrorism, when it will also be used for other purposes).
It certainly paints the EU delegation as pretty poor negotiators at best or active conspirators in the dismantling of the EU's proud privacy-as-fundamental-right (or as Prof Kang would call them, 'dignity') principles at worst.
ILAW 2004 was on last week at the Berkman Center at Harvard. The usual suspects, Larry Lessig, Jonathan Zittrain, Charles Nesson, Yochai Benkler and William Fisher enjoyed themselves educating the latest cohort of delegates in the intricacies of internet law. Frank Field was there and reports on many of the sessions.
Donna, though, sees Jerry Kang's session as one of the higlights. She pegs him the Larry Lessig of privacy:
"UCLA law professor/Harvard law visiting professor Jerry Kang is the Larry Lessig of privacy, in that he was able very quickly
and powerfully to communicate that there are extremes in the debate that result largely from the culture-born clash between
"property talk" (U.S.-take on privacy) and "dignity talk" (Euro approach). He lifted the discussion out of the dreaded "tin foil
hat" arena -- that is, beyond "paranoid freaks v. reasonable people" nonsense that stops people from truly engaging with the
problem/issues at hand. He's one to learn from. (Check out Frank Field's comprehensive ILAW notes for a remarkably
detailed transcript of his talk.)"
Kang talked about the unproductive ideologies in the privacy debate and how to get round them.
"A clash of civilizations (america v europe)
america - market talk; privacy is a widget; let the market do it; exercise your freedom in the market; exchange for value; and in a good market, we get allocative efficiency - kind of a caricature, but this is a good short term mechanism
europe - dignity talk; privacy is a fundamental human right; we do not auction off babies; we let the law decide what it a fundamental human right.
Substance - turning to the substance suggests that the ultimate elements are the same.
at the core, they seem to be the same.
- Dignity talk says (consent is required) (apparatus to ensure that there is a process to protect consent)
- Market talks says (clear property rights needed/so who gets initial entitlement?/many possible results/these days, it’s largely in the commons)
there are good reasons to think that efficiency emerges when you give the entitlement to the individual – same result as dignity talk...
...Dignity talk hates the market approach because there’s too little control for individuals to exert; individuals have a hard time making a good bargain. Rather, the system is set up to fortify the individual’s position in these situations...
...Market approach says that the dignity approach is too stilted – there are situations where the balance of interests should go against privacy; the market achieves that balance more efficiently
But dignity talk leads to systems that explicitly generate exceptions to the dignity right within the supporting instutions created...
...So, it may be that we will all end up in the same place; and it may be that rather than arguing about which regime is “right” we should move on to the real, mechanical issues that are the same for both...
...What can we do to reframe this debate?
1) soft pedal the concern about market talk/dignity talk - unproductive
2) the substance is something we ought to be focusing on
a) who gets the “thing” - the initial entitlement
b) how will the choices get made, and how to ensure that the decisionmaker is fortified to do it well/effectively - this is where inalienability may emerge (can’t ask, can’t tell) - there are lots of intermediate forms of the way we might frame/constrain the kinds of exchanges that we will allow; ability to correct
c) what are the societal overrides; what is allowable contexts within which we can override the rights/market actions of individuals. How to pick/adjudicate/etc.
d) How much supporting information infrastructure needed to enforce - various flavors
That;s the claim – answer these four question, rather than talking to me about dignity or markets"
Donna, though, sees Jerry Kang's session as one of the higlights. She pegs him the Larry Lessig of privacy:
"UCLA law professor/Harvard law visiting professor Jerry Kang is the Larry Lessig of privacy, in that he was able very quickly
and powerfully to communicate that there are extremes in the debate that result largely from the culture-born clash between
"property talk" (U.S.-take on privacy) and "dignity talk" (Euro approach). He lifted the discussion out of the dreaded "tin foil
hat" arena -- that is, beyond "paranoid freaks v. reasonable people" nonsense that stops people from truly engaging with the
problem/issues at hand. He's one to learn from. (Check out Frank Field's comprehensive ILAW notes for a remarkably
detailed transcript of his talk.)"
Kang talked about the unproductive ideologies in the privacy debate and how to get round them.
"A clash of civilizations (america v europe)
america - market talk; privacy is a widget; let the market do it; exercise your freedom in the market; exchange for value; and in a good market, we get allocative efficiency - kind of a caricature, but this is a good short term mechanism
europe - dignity talk; privacy is a fundamental human right; we do not auction off babies; we let the law decide what it a fundamental human right.
Substance - turning to the substance suggests that the ultimate elements are the same.
at the core, they seem to be the same.
- Dignity talk says (consent is required) (apparatus to ensure that there is a process to protect consent)
- Market talks says (clear property rights needed/so who gets initial entitlement?/many possible results/these days, it’s largely in the commons)
there are good reasons to think that efficiency emerges when you give the entitlement to the individual – same result as dignity talk...
...Dignity talk hates the market approach because there’s too little control for individuals to exert; individuals have a hard time making a good bargain. Rather, the system is set up to fortify the individual’s position in these situations...
...Market approach says that the dignity approach is too stilted – there are situations where the balance of interests should go against privacy; the market achieves that balance more efficiently
But dignity talk leads to systems that explicitly generate exceptions to the dignity right within the supporting instutions created...
...So, it may be that we will all end up in the same place; and it may be that rather than arguing about which regime is “right” we should move on to the real, mechanical issues that are the same for both...
...What can we do to reframe this debate?
1) soft pedal the concern about market talk/dignity talk - unproductive
2) the substance is something we ought to be focusing on
a) who gets the “thing” - the initial entitlement
b) how will the choices get made, and how to ensure that the decisionmaker is fortified to do it well/effectively - this is where inalienability may emerge (can’t ask, can’t tell) - there are lots of intermediate forms of the way we might frame/constrain the kinds of exchanges that we will allow; ability to correct
c) what are the societal overrides; what is allowable contexts within which we can override the rights/market actions of individuals. How to pick/adjudicate/etc.
d) How much supporting information infrastructure needed to enforce - various flavors
That;s the claim – answer these four question, rather than talking to me about dignity or markets"
Monday, May 17, 2004
Bloggers have set up a defence fund for the professor from Tokyo University who was arrested last week for copyright infringements arising out of the use of the P2P file sharing software he created, Winny.
The Washington Post reports that the EU Commission has agreed to hand over airline passenger data to the US, even though they're being challenged through the courts by the EU parliament on the issue.
"Angry midwives defy order to inform on asylum seekers" says the Gaurdian. Good for them say I. More power to their elbows and I hope they seriously embarrass the UK government over this. Just another example of the insidious nature of the national ID card proposals.
Meanwhile, on the other side of the Atlantic, "A federal advisory committee says Congress should pass laws to protect the civil liberties of Americans when the government sifts through computer records and data files for information about terrorists.", according to the NYT.
Finally on ID cards for today, The Scotsman reports that a large consultancy firm that advised the UK government on the introduction of the ID card stands to make a lot of money from the government process of implementing odious system. Deloite is one of the remaining two bidders in deciding what company will be the government's main commercial adviser on the scheme.
Take advice from the company that wants sell you whatever snake oil you currently crave and then buy the snake oil from them and their buddies. Just good business as far as Deloite and other similar placed bidders are concerned and I don't blame them for exploiting the technology-will-solve-the-problem-even-if-you-don't-know-what-the-problem-is snake oil junkies in government. The fault lies squarely with the junkies and the rest of us, who frankly are getting the government we deserve, as we're letting them get away with it.
"Angry midwives defy order to inform on asylum seekers" says the Gaurdian. Good for them say I. More power to their elbows and I hope they seriously embarrass the UK government over this. Just another example of the insidious nature of the national ID card proposals.
Meanwhile, on the other side of the Atlantic, "A federal advisory committee says Congress should pass laws to protect the civil liberties of Americans when the government sifts through computer records and data files for information about terrorists.", according to the NYT.
Finally on ID cards for today, The Scotsman reports that a large consultancy firm that advised the UK government on the introduction of the ID card stands to make a lot of money from the government process of implementing odious system. Deloite is one of the remaining two bidders in deciding what company will be the government's main commercial adviser on the scheme.
Take advice from the company that wants sell you whatever snake oil you currently crave and then buy the snake oil from them and their buddies. Just good business as far as Deloite and other similar placed bidders are concerned and I don't blame them for exploiting the technology-will-solve-the-problem-even-if-you-don't-know-what-the-problem-is snake oil junkies in government. The fault lies squarely with the junkies and the rest of us, who frankly are getting the government we deserve, as we're letting them get away with it.
Groklaw is reporting that Germany are going to vote against the EU's software directive, which the Irish presidency has been trying to slip through.
FFII say:
NB. See FFII breaking news wiki for very latest information, at
http://kwiki.ffii.org/SwpatcninoEn
It looks as though there's a chance things may be moving in our favour.
The agenda for the Competitiveness Council meeting has been published,
with a full discussion now scheduled on the Software Patents directive;
furthermore the discussion is to be in public, ie with press and
visitors able to listen in with 11-way translation.
http://ue.eu.int/cms3_applications/Applications/newsRoom/loadbook.asp?BID=880&LANG=1&cmsId=364
We don't yet know whether there's any chance of it being webcast.
This a big step forward from the official EU media briefing, published
only on Friday morning, which said the directive was due to be
rubberstamped as an 'A-item' without discussion.
http://europa.eu.int/rapid/start/cgi/guestfr.ksh?p_action.gettxt=gt&doc=MEMO/04/114%7C0%7CRAPID&lg=EN&display=
The EU media briefing also tries very hard to play the play up the Irish
draft as a 'compromise' position.
But it's clear from this report from Paul Meller that by the time of the
press conference this afternoon journalists were obviously well enough
briefed that the EU spokesman had to confirm everything we'd said:
http://www.itworld.com/Man/2687/040514eupatents/
The national positions won't finally be clear until we hear what
actually gets said on Tuesday, but there are signs that there may be an
increasing number of ministers with concerns about the text, and a very
real possibility that a number of countries may seek a delay to give time to
* achieve more unity;
* investigate further the concerns about
- freedom of discussion
- interoperability
- scope of what is and what is not 'technical';
* produce a text more likely to pass the European Parliament.
On the other hand, as best we know, the UK and Ireland are still pushing
all-out for the Presidency text.
FFII say:
NB. See FFII breaking news wiki for very latest information, at
http://kwiki.ffii.org/SwpatcninoEn
It looks as though there's a chance things may be moving in our favour.
The agenda for the Competitiveness Council meeting has been published,
with a full discussion now scheduled on the Software Patents directive;
furthermore the discussion is to be in public, ie with press and
visitors able to listen in with 11-way translation.
http://ue.eu.int/cms3_applications/Applications/newsRoom/loadbook.asp?BID=880&LANG=1&cmsId=364
We don't yet know whether there's any chance of it being webcast.
This a big step forward from the official EU media briefing, published
only on Friday morning, which said the directive was due to be
rubberstamped as an 'A-item' without discussion.
http://europa.eu.int/rapid/start/cgi/guestfr.ksh?p_action.gettxt=gt&doc=MEMO/04/114%7C0%7CRAPID&lg=EN&display=
The EU media briefing also tries very hard to play the play up the Irish
draft as a 'compromise' position.
But it's clear from this report from Paul Meller that by the time of the
press conference this afternoon journalists were obviously well enough
briefed that the EU spokesman had to confirm everything we'd said:
http://www.itworld.com/Man/2687/040514eupatents/
The national positions won't finally be clear until we hear what
actually gets said on Tuesday, but there are signs that there may be an
increasing number of ministers with concerns about the text, and a very
real possibility that a number of countries may seek a delay to give time to
* achieve more unity;
* investigate further the concerns about
- freedom of discussion
- interoperability
- scope of what is and what is not 'technical';
* produce a text more likely to pass the European Parliament.
On the other hand, as best we know, the UK and Ireland are still pushing
all-out for the Presidency text.
From Ian Brown of FIPR:
Where next for copyright in the new Europe?
-------------------------------------------
13 June 2004
Room H 2032, Technical University Berlin, main building
Strasse des 17. Juni, Berlin
(building 16 http://www.tu-berlin.de/karten/)
More information and updates at:
http://wizards-of-os.org/index.php?id=921
Associated with Wizards of OS 3: The Future of the Digital Commons 10-12
June, Berlin: http://wizards-of-os.org/index.php?id=50&L=3
Copyright law has become one of the most important and controversial
drivers of the Information Society. The Internet has made every user a
publisher, but copyright rules governing their activities are often
determined by opaque international bodies that decide rules with little
public input.
Join us in Berlin to debate where copyright *should* be going to ensure
that authors, musicians, film-makers and the public will all benefit.
Engage with leading international thinkers from across Europe and the
United States. Meet colleagues who are working to make sure all members
of society benefit from copyright.
Attendance is free thanks to sponsorship from the Open Society
Institute, but please send an e-mail to workshop@fipr.org to let us know
you will be coming for planning purposes.
Programme
=========
* Influencing the international agenda
Copyright policy has been a strongly international area of law since the
Berne convention was agreed in 1886. More recently, the World Trade
Organisation Agreement on Trade-Related aspects of Intellectual Property
Rights (TRIPS) and the World Intellectual Property Organisation
Copyright and Performances and Phonograms Treaties have changed
copyright law around the world. The European Union has passed five
copyright-related Directives in the last twelve years. How can civil
society play a full role in policy development in these fora?
1100 Teresa Hackett, Foundation for Information Policy Research:
International copyright bodies including the European Union and World
Intellectual Property Organisation
1110 Robin Gross, IP Justice: Free Trade Agreement of the Americas
experiences
1120 Simon Davies, Privacy International: European Union privacy
legislation experiences
1130 Sjoera Nas, Bits of Freedom: European Union spam legislation
experiences
1140 Audience
* Updating the Copyright Directive
The 2001 Copyright Directive is the key EU law that sets out how
copyright works are protected in Europe. A report on its operation
should be published by the Commission in the next 18 months, and can
recommend changes to improve its effect.
Which parts of the Directive is it most critical to change to benefit
the public interest? Given the controversy they have caused, are the
articles related to exceptions and technological protection measures
most vital? Where does civil society see the most urgency for change?
1200 Ian Brown, FIPR: Experiences in Canada, Australia and Japan
1210 Mindaugas Kiskis, Law University of Lithuania: Collecting societies
1220 Jonathan Griffiths*, Queen Mary, University of London: Protecting
free speech
1230 David Mann, Royal National Institute of the Blind: Collaborative
arrangements with publishers
1240 Lee Bygrave*, Norwegian Research Centre for Computers and Law:
Ensuring privacy
1250 Audience
1320-1430 Lunch
* Implementing the IPR Enforcement Directive
The controversial Intellectual Property Rights Enforcement Directive was
pushed through the European Parliament with no time to debate sweeping
last-minute changes from the EU Member States. It now covers any
infringement of any kind of intellectual property right. How can its
effects on civil society be minimised around the EU? Which countries
have the most to lose?
1430 Andreas Dietl, European Digital Rights: Remaining problems with the
Intellectual Property Rights Enforcement Directive
1440 Mariusz Kondrat*, Poland Office of the Committee for European
Integration: New member state issues and pharmaceuticals
1450 Georg Jakob, University of Salzburg: Winners and losers from the
Intellectual Property Rights Enforcement Directive
1500 Slobodan Markovic, Netcentar, Serbia*
1510 Audience
* Copyright beyond the EU
Countries aiming for EU membership in the next decade such as Romania,
Bulgaria and Turkey are updating their copyright laws as part of an
overall effort to harmonise law with the EU. What can they learn from
the experiences of new EU members like Slovenia that have already
harmonised their laws in the process of joining the EU? Countries
further east such as Armenia have signed Partnership and Cooperation
Agreements with the EU that include obligations to update copyright law,
and even those without formal obligations are influenced by the approach
of the EU. What positive and negative effects is this having? How can
civil society in the EU and beyond best work together to influence the
direction of copyright legislation?
1530 Maja Bogataj, University of Llubljana: Implementation of EU
copyright legislation in Slovenia
1540 David Sanduhkchyan, InterNews Armenia: Right holder demands on ISPs
in Armenia
1550 Teo Celakoski*, Multimedia Institute, Croatia: Civil society
cooperation in the EU and beyond
1600 Tattu Mambetalieva, Global Internet Policy Initiative, Kyrgyzstan:
Copyright convergence in central Asia
1610 Sacha Belyaeva, InterNews Russia: Russian copyright law and the All
of MP3 service
1620 Veni Markovski, Internet Society Bulgaria: Software company
lobbying in Bulgaria
1630 Audience
* Do we need a Digital Rights Directive?
Copyright law is often driven by the relatively small groups of right
holders whom it particularly benefits. Civil society and the general
public have had limited success in having their concerns taken into
account in such law. Should we instead push directly for an EU Digital
Rights Directive that would tip the balance back in our favour? What
would such a Directive contain? Or can we use existing human rights,
consumer and competition legislation to change the operation of
copyright legislation toward civil society interests?
1650 Ross Anderson, Cambridge University and FIPR: Enforcing competition
under trusted computing
1700 William Fisher, Berkman Center for Internet and Society: Reshaping
artist compensation
1710 Wendy Seltzer, Electronic Frontier Foundation and Berkman Center
for Internet and Society: Fixing the Digital Millennium Copyright Act
1720 Ville Oksanen, Helsinki Institute for Information Technology and
Electronic Frontier Finland: Balancing consumer and copyright law
1730 Audience
1800 Close
* Awaiting confirmation
Where next for copyright in the new Europe?
-------------------------------------------
13 June 2004
Room H 2032, Technical University Berlin, main building
Strasse des 17. Juni, Berlin
(building 16 http://www.tu-berlin.de/karten/)
More information and updates at:
http://wizards-of-os.org/index.php?id=921
Associated with Wizards of OS 3: The Future of the Digital Commons 10-12
June, Berlin: http://wizards-of-os.org/index.php?id=50&L=3
Copyright law has become one of the most important and controversial
drivers of the Information Society. The Internet has made every user a
publisher, but copyright rules governing their activities are often
determined by opaque international bodies that decide rules with little
public input.
Join us in Berlin to debate where copyright *should* be going to ensure
that authors, musicians, film-makers and the public will all benefit.
Engage with leading international thinkers from across Europe and the
United States. Meet colleagues who are working to make sure all members
of society benefit from copyright.
Attendance is free thanks to sponsorship from the Open Society
Institute, but please send an e-mail to workshop@fipr.org to let us know
you will be coming for planning purposes.
Programme
=========
* Influencing the international agenda
Copyright policy has been a strongly international area of law since the
Berne convention was agreed in 1886. More recently, the World Trade
Organisation Agreement on Trade-Related aspects of Intellectual Property
Rights (TRIPS) and the World Intellectual Property Organisation
Copyright and Performances and Phonograms Treaties have changed
copyright law around the world. The European Union has passed five
copyright-related Directives in the last twelve years. How can civil
society play a full role in policy development in these fora?
1100 Teresa Hackett, Foundation for Information Policy Research:
International copyright bodies including the European Union and World
Intellectual Property Organisation
1110 Robin Gross, IP Justice: Free Trade Agreement of the Americas
experiences
1120 Simon Davies, Privacy International: European Union privacy
legislation experiences
1130 Sjoera Nas, Bits of Freedom: European Union spam legislation
experiences
1140 Audience
* Updating the Copyright Directive
The 2001 Copyright Directive is the key EU law that sets out how
copyright works are protected in Europe. A report on its operation
should be published by the Commission in the next 18 months, and can
recommend changes to improve its effect.
Which parts of the Directive is it most critical to change to benefit
the public interest? Given the controversy they have caused, are the
articles related to exceptions and technological protection measures
most vital? Where does civil society see the most urgency for change?
1200 Ian Brown, FIPR: Experiences in Canada, Australia and Japan
1210 Mindaugas Kiskis, Law University of Lithuania: Collecting societies
1220 Jonathan Griffiths*, Queen Mary, University of London: Protecting
free speech
1230 David Mann, Royal National Institute of the Blind: Collaborative
arrangements with publishers
1240 Lee Bygrave*, Norwegian Research Centre for Computers and Law:
Ensuring privacy
1250 Audience
1320-1430 Lunch
* Implementing the IPR Enforcement Directive
The controversial Intellectual Property Rights Enforcement Directive was
pushed through the European Parliament with no time to debate sweeping
last-minute changes from the EU Member States. It now covers any
infringement of any kind of intellectual property right. How can its
effects on civil society be minimised around the EU? Which countries
have the most to lose?
1430 Andreas Dietl, European Digital Rights: Remaining problems with the
Intellectual Property Rights Enforcement Directive
1440 Mariusz Kondrat*, Poland Office of the Committee for European
Integration: New member state issues and pharmaceuticals
1450 Georg Jakob, University of Salzburg: Winners and losers from the
Intellectual Property Rights Enforcement Directive
1500 Slobodan Markovic, Netcentar, Serbia*
1510 Audience
* Copyright beyond the EU
Countries aiming for EU membership in the next decade such as Romania,
Bulgaria and Turkey are updating their copyright laws as part of an
overall effort to harmonise law with the EU. What can they learn from
the experiences of new EU members like Slovenia that have already
harmonised their laws in the process of joining the EU? Countries
further east such as Armenia have signed Partnership and Cooperation
Agreements with the EU that include obligations to update copyright law,
and even those without formal obligations are influenced by the approach
of the EU. What positive and negative effects is this having? How can
civil society in the EU and beyond best work together to influence the
direction of copyright legislation?
1530 Maja Bogataj, University of Llubljana: Implementation of EU
copyright legislation in Slovenia
1540 David Sanduhkchyan, InterNews Armenia: Right holder demands on ISPs
in Armenia
1550 Teo Celakoski*, Multimedia Institute, Croatia: Civil society
cooperation in the EU and beyond
1600 Tattu Mambetalieva, Global Internet Policy Initiative, Kyrgyzstan:
Copyright convergence in central Asia
1610 Sacha Belyaeva, InterNews Russia: Russian copyright law and the All
of MP3 service
1620 Veni Markovski, Internet Society Bulgaria: Software company
lobbying in Bulgaria
1630 Audience
* Do we need a Digital Rights Directive?
Copyright law is often driven by the relatively small groups of right
holders whom it particularly benefits. Civil society and the general
public have had limited success in having their concerns taken into
account in such law. Should we instead push directly for an EU Digital
Rights Directive that would tip the balance back in our favour? What
would such a Directive contain? Or can we use existing human rights,
consumer and competition legislation to change the operation of
copyright legislation toward civil society interests?
1650 Ross Anderson, Cambridge University and FIPR: Enforcing competition
under trusted computing
1700 William Fisher, Berkman Center for Internet and Society: Reshaping
artist compensation
1710 Wendy Seltzer, Electronic Frontier Foundation and Berkman Center
for Internet and Society: Fixing the Digital Millennium Copyright Act
1720 Ville Oksanen, Helsinki Institute for Information Technology and
Electronic Frontier Finland: Balancing consumer and copyright law
1730 Audience
1800 Close
* Awaiting confirmation
Thursday, May 13, 2004
In the Guardian,
"Brian Hadfield, the managing director of Unisys UK, a
US-based technology company that has worked on national
identity schemes in South Africa and Malaysia, questions the
usefulness of an ID card in countering the terror threat."
San Bernardino County in California are reportedly planning to defy an order by the Secretary of State banning the use of specific electronic voting machines in the presidential election in November. The county uses Sequoia machines, though, so I didn't think the order affected them anyway.
"Brian Hadfield, the managing director of Unisys UK, a
US-based technology company that has worked on national
identity schemes in South Africa and Malaysia, questions the
usefulness of an ID card in countering the terror threat."
San Bernardino County in California are reportedly planning to defy an order by the Secretary of State banning the use of specific electronic voting machines in the presidential election in November. The county uses Sequoia machines, though, so I didn't think the order affected them anyway.
Brendan O'Neill at Spiked has a conspiracy theory in his sights about the leaking of the torture photos from Abu Ghraib prison in Iraq.
The photos from Abu Ghraib may have only recently been published
but many in the American media have known of their existence for
months...
... Whether or not it was military figures in the Pentagon who leaked the
photos to the press, some of them have certainly used the ensuing
scandal to launch attacks against the civilian leadership in the
Department of Defence over the war in Iraq, specifically against
Donald Rumsfeld. One 'senior general at the Pentagon' told the
Washington Post: 'I do not believe we had a clearly defined war
strategy…. [Rumsfeld] refused to listen or adhere to military advice.'
A special forces officer said: 'Rumsfeld needs to go, as does Paul
Wolfowtiz [Rumsfeld's deputy].' (14)
In an unprecedented move, the Army Times, the US military
newspaper that gets distributed to American forces around the
world, published an editorial in the wake of the torture scandal calling
for Rumsfeld to resign, describing the torture scandal as 'a failure of
leadership from start to finish'. "
The photos from Abu Ghraib may have only recently been published
but many in the American media have known of their existence for
months...
... Whether or not it was military figures in the Pentagon who leaked the
photos to the press, some of them have certainly used the ensuing
scandal to launch attacks against the civilian leadership in the
Department of Defence over the war in Iraq, specifically against
Donald Rumsfeld. One 'senior general at the Pentagon' told the
Washington Post: 'I do not believe we had a clearly defined war
strategy…. [Rumsfeld] refused to listen or adhere to military advice.'
A special forces officer said: 'Rumsfeld needs to go, as does Paul
Wolfowtiz [Rumsfeld's deputy].' (14)
In an unprecedented move, the Army Times, the US military
newspaper that gets distributed to American forces around the
world, published an editorial in the wake of the torture scandal calling
for Rumsfeld to resign, describing the torture scandal as 'a failure of
leadership from start to finish'. "
From James Heald of FFII:
"See stories on the FFII 'breaking news' wiki at
http://kwiki.ffii.org/SwpatcninoEn
* Luxembourg has called in the text. There /will/ now be a
round-the-table discussion of it by the ministers.
It will now /not/ be taken as one of the 'A items' nodded through
en-bloc at the start of the agenda.
* The leading German official has confirmed Germany still opposes the
proposed text.
http://kwiki.ffii.org/?DemoBerlin040513En
* Belgium and Slovenia are also likely to follow Germany on this.
* Poland: Richard Stallmann and others have made a big impact at a
lengthy session in the Polish parliament.
Previously Poland appears to have been keeping its head down.
* France: Le Monde has reminded the French president that he had
previously promised to opposed software patents, before the French
presidential election in 2002
http://www.weblmi.com/news_store/2004_05_12_Bataille_sur_les_bre_18/News_view
The issue is very much "in play".
===================================================================
In the UK and Ireland, our best chance I think is to try to convince the
powers that be that the proposed draft will simply not go through the
European Parliament, however much the Patent Office is pushing for it,
because it gives *nothing at all* in the three most important areas
where the Parliament expressed concern:
-- *nothing* to give explicit reassurance that ordinary discussion of
algorithms in the form of code fragments will not be silenced by program
claims. (article 5.2). A provision that such discussion should be
considered 'fair use' would at least offer an olive branch here.
-- *nothing* to prevent dominant patent owners locking out specific
competitors for interoperability by refusing patent licences, short of a
full-scale EU Competition commission investigation. (article 6a). (The
EP wanted to allow automatic unfettered use. As a compromise Denmark
has suggested creating new fast-track procedures to allow compulsory
RAND licensing -- but this is rejected in the Irish draft)
-- most importantly, *nothing* to clarify what should be considered
"technical". The EP wanted a reference to "control of the forces of
nature" as the acid test, and a statement that the mere processing of
data is not technical.(articles 2, 3a and 4). But all the EP's
amendments in this area are rejected.
Past UK case law also supports the idea that methods which merely
address generic data relate to "computer programs as such", and only
become technical if the data has a specific technological relevance
beyond this; thus the current Patent Office manual states:
"1.26.4 The reference in Merrill Lynch to Vicom involving an
increase in speed (see 1.26.2) does not mean that an increase in speed
of itself is enough. This point was considered in Options Clearing Corpn
Inc's Application (unreported) when the hearing officer concluded that
Vicom was allowable because it produced an advance, namely an increase
in speed, in a technical field, namely the technical field of image
enhancement, and not simply because of the advance itself".
This principle should be upheld; but the EPO is already granting patents
far beyond this.
The European Parliament proposed a specific amendment that a mere
increase in the speed of data processing should not of itself be
considered technical; but this amendment is also to be rejected.
If the Council makes no attempt to engage with the Parliament on any of
these concerns, it seems quite likely to lose the entire Directive."
Bertie and the boys (i.e. the Irish government), as they say in Ireland, may not have as smooth a ride on EU software patents as they expected.
"See stories on the FFII 'breaking news' wiki at
http://kwiki.ffii.org/SwpatcninoEn
* Luxembourg has called in the text. There /will/ now be a
round-the-table discussion of it by the ministers.
It will now /not/ be taken as one of the 'A items' nodded through
en-bloc at the start of the agenda.
* The leading German official has confirmed Germany still opposes the
proposed text.
http://kwiki.ffii.org/?DemoBerlin040513En
* Belgium and Slovenia are also likely to follow Germany on this.
* Poland: Richard Stallmann and others have made a big impact at a
lengthy session in the Polish parliament.
Previously Poland appears to have been keeping its head down.
* France: Le Monde has reminded the French president that he had
previously promised to opposed software patents, before the French
presidential election in 2002
http://www.weblmi.com/news_store/2004_05_12_Bataille_sur_les_bre_18/News_view
The issue is very much "in play".
===================================================================
In the UK and Ireland, our best chance I think is to try to convince the
powers that be that the proposed draft will simply not go through the
European Parliament, however much the Patent Office is pushing for it,
because it gives *nothing at all* in the three most important areas
where the Parliament expressed concern:
-- *nothing* to give explicit reassurance that ordinary discussion of
algorithms in the form of code fragments will not be silenced by program
claims. (article 5.2). A provision that such discussion should be
considered 'fair use' would at least offer an olive branch here.
-- *nothing* to prevent dominant patent owners locking out specific
competitors for interoperability by refusing patent licences, short of a
full-scale EU Competition commission investigation. (article 6a). (The
EP wanted to allow automatic unfettered use. As a compromise Denmark
has suggested creating new fast-track procedures to allow compulsory
RAND licensing -- but this is rejected in the Irish draft)
-- most importantly, *nothing* to clarify what should be considered
"technical". The EP wanted a reference to "control of the forces of
nature" as the acid test, and a statement that the mere processing of
data is not technical.(articles 2, 3a and 4). But all the EP's
amendments in this area are rejected.
Past UK case law also supports the idea that methods which merely
address generic data relate to "computer programs as such", and only
become technical if the data has a specific technological relevance
beyond this; thus the current Patent Office manual states:
"1.26.4 The reference in Merrill Lynch to Vicom involving an
increase in speed (see 1.26.2) does not mean that an increase in speed
of itself is enough. This point was considered in Options Clearing Corpn
Inc's Application (unreported) when the hearing officer concluded that
Vicom was allowable because it produced an advance, namely an increase
in speed, in a technical field, namely the technical field of image
enhancement, and not simply because of the advance itself".
This principle should be upheld; but the EPO is already granting patents
far beyond this.
The European Parliament proposed a specific amendment that a mere
increase in the speed of data processing should not of itself be
considered technical; but this amendment is also to be rejected.
If the Council makes no attempt to engage with the Parliament on any of
these concerns, it seems quite likely to lose the entire Directive."
Bertie and the boys (i.e. the Irish government), as they say in Ireland, may not have as smooth a ride on EU software patents as they expected.
Wednesday, May 12, 2004
BIPlog reports on self destructing DVDs.
"What's the latest way to access expression in the film world? EZ-D, a DVD "purchase" with a timeclock that allows you to
watch the movie as many times as you want for 48 hours, then poof! -- the work disappears.
Question is, how happy are we about moving to a model where we buy things for two days at a time? Should we let the line
between ownership and not be so E-Zly blurred? Are imploding expressive goods a good idea?"
"What's the latest way to access expression in the film world? EZ-D, a DVD "purchase" with a timeclock that allows you to
watch the movie as many times as you want for 48 hours, then poof! -- the work disappears.
Question is, how happy are we about moving to a model where we buy things for two days at a time? Should we let the line
between ownership and not be so E-Zly blurred? Are imploding expressive goods a good idea?"
Clay Shirky thinks Groklaw may be the MVP in the SCO v IBM linux legal dispute.
"GrokLaw: MVP of the SCO Wars
Liz has convinced me that one of the most profound effects of weblogs is the communal workings of those who publish them,
and that they contribute significant new value to collaboration across disciplines and boundaries...
...By way of background, SCO, once a technology company,
has become a company devoted to a single legal strategy:
1. Assert rights to the Unix operating system
2. Assert infirnging contributions of Unix source code to Linux
3. Sue firms that sell or use Linux, especially deep-pocketed IBM
4. Profit!!!1! (or at least buyout by IBM, to save them the expense of the suit.)
Much of the matter is in dispute, and IANAL, but what is clear is this: a) many SCO employees contributed to the Linux kernel, back when SCO was a tech company (“oldSCO”), with the approval of their bosses, and b) the Groklaw is doing an astonishing, world-changing job of finding, documenting and publicizing these occurrences (alongside much other work on the case.)
Today’s entry reads:
Groklaw has reported before on contributions made to the Linux kernel by Christoph Hellwig while he was a Caldera employee. We have also offered some evidence of contributions by oldSCO employees as well. Alex Rosten decided to do
some more digging about the contributions of one kernel coder, Tigran Aivazian.
[…]
This paper is a group effort. Alex’s research was shared with others in the Groklaw community, who honed, edited, and added further research. Then the final draft was sent to Tigran himself, so he could correct and/or amplify, which he has done. Look at that second graf: “This paper is a group effort.” Everyone always says that about complex work, but this is different. This is the end of two-party law, where plaintiff and defendant duke it out in an arms race of $350/hr laywers and “Take that” counter-motions.
Instead, we have a third party, Groklaw, acting as a proxy for millions of Linux users, affecting the public perception of the case (and the outcome SCO wants has to do with its stock price, not redress in the courts.) Groklaw may also be affecting the case in the courts, by helping IBM with a distributed discovery effort that they, IBM, could never accomplish on their own, no matter how may lawyers they throw at it.
There are two ways to change the amount of leverage you have. The obvious one is to put more force on the lever, and this is what SCO thought they were doing — engaging IBM in a teeter-totter battle that would make it cheaper for IBM to simply buy SCO.
The other way to get more leverage is to move the fulcrum. Groklaw has moved the fulcrum of this battle considerably closer to SCO, making it easier for IBM to exert leverage, and harder for SCO to. I can’t predict how the current conflict will end, but the pattern Groklaw has established, of acting on behalf of the people who will be adversely affected by a two-party legal battle, has already been vindicated, even if SCO avoids bankruptcy."
How the Net can make a difference.
"GrokLaw: MVP of the SCO Wars
Liz has convinced me that one of the most profound effects of weblogs is the communal workings of those who publish them,
and that they contribute significant new value to collaboration across disciplines and boundaries...
...By way of background, SCO, once a technology company,
has become a company devoted to a single legal strategy:
1. Assert rights to the Unix operating system
2. Assert infirnging contributions of Unix source code to Linux
3. Sue firms that sell or use Linux, especially deep-pocketed IBM
4. Profit!!!1! (or at least buyout by IBM, to save them the expense of the suit.)
Much of the matter is in dispute, and IANAL, but what is clear is this: a) many SCO employees contributed to the Linux kernel, back when SCO was a tech company (“oldSCO”), with the approval of their bosses, and b) the Groklaw is doing an astonishing, world-changing job of finding, documenting and publicizing these occurrences (alongside much other work on the case.)
Today’s entry reads:
Groklaw has reported before on contributions made to the Linux kernel by Christoph Hellwig while he was a Caldera employee. We have also offered some evidence of contributions by oldSCO employees as well. Alex Rosten decided to do
some more digging about the contributions of one kernel coder, Tigran Aivazian.
[…]
This paper is a group effort. Alex’s research was shared with others in the Groklaw community, who honed, edited, and added further research. Then the final draft was sent to Tigran himself, so he could correct and/or amplify, which he has done. Look at that second graf: “This paper is a group effort.” Everyone always says that about complex work, but this is different. This is the end of two-party law, where plaintiff and defendant duke it out in an arms race of $350/hr laywers and “Take that” counter-motions.
Instead, we have a third party, Groklaw, acting as a proxy for millions of Linux users, affecting the public perception of the case (and the outcome SCO wants has to do with its stock price, not redress in the courts.) Groklaw may also be affecting the case in the courts, by helping IBM with a distributed discovery effort that they, IBM, could never accomplish on their own, no matter how may lawyers they throw at it.
There are two ways to change the amount of leverage you have. The obvious one is to put more force on the lever, and this is what SCO thought they were doing — engaging IBM in a teeter-totter battle that would make it cheaper for IBM to simply buy SCO.
The other way to get more leverage is to move the fulcrum. Groklaw has moved the fulcrum of this battle considerably closer to SCO, making it easier for IBM to exert leverage, and harder for SCO to. I can’t predict how the current conflict will end, but the pattern Groklaw has established, of acting on behalf of the people who will be adversely affected by a two-party legal battle, has already been vindicated, even if SCO avoids bankruptcy."
How the Net can make a difference.
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