Nationalise Google books?

Robert Darnton in the New York Review of Books suggests that one way out of the Google books situation would be to nationalise Google books. I can't see that idea going down too well in the land of the free.

"The most ambitious solution would transform Google's digital database into a truly public library. That, of course, would require an act of Congress, one that would make a decisive break with the American habit of determining public issues by private lawsuit. The legislation would have to settle ancillary problems—how to adjust copyright, deal with orphan books, and compensate Google for its investment in digitizing—but it would have the advantage of clearing up a messy legal landscape and of giving the American people what they deserve: a national digital library equal to the needs of the twenty-first century. But it is not clear how Google would react to such a buyout.
If state intervention is deemed to go too far against the American grain, a minimal solution could be devised for the private sector. Congress would have to intervene with legislation to protect the digitization of orphan works from lawsuits, but it would not need to appropriate funds. Instead, funding could come from a coalition of foundations. The digitizing, open-access distribution, and preservation of orphan works could be done by a nonprofit organization such as the Internet Archive, a nonprofit group that was built as a digital library of texts, images, and archived Web pages. In order to avoid conflict with interests in the current commercial market, the database would include only books in the public domain and orphan works. Its time span would increase as copyrights expired, and it could include an opt-in provision for rightsholders of books that are in copyright but out of print.
The work need not be done in haste. At the rate of a million books a year, we would have a great library, free and accessible to everyone, within a decade. And the job would be done right, with none of the missing pages, botched images, faulty editions, omitted artwork, censoring, and misconceived cataloging that mar Google's enterprise. Bibliographers—who appear to play little or no part in Google's enterprise—would direct operations along with computer engineers. Librarians would cooperate with both in order to assure the preservation of the books, another weak point in GBS, because Google is not committed to maintaining its corpus, and digitized texts easily degrade or become inaccessible."

Remedy for groundless threats of copyright infringement proceedings

Lord Lucas has been pondering the Digital Economy Bill and suggested an interesting amendment, a remedy for groundless copyright threats no less:

"

After Clause 8

LORD LUCAS

Insert the following new Clause—

"Remedy for groundless threats of copyright infringement proceedings

(1)	The Copyright, Designs and Patents Act 1988 is amended as follows.

(2)	After section 169 insert—

"169A.

Remedy for groundless threats of infringement proceedings

(1)	Where a person threatens another person with proceedings for infringement of copyright, a person aggrieved by the threats may bring an action against him claiming—

(a)	a declaration to the effect that the threats are unjustifiable;

(b)	an injunction against the continuance of the threats;

(c)	damages in respect of any loss which he has sustained by the threats.

(2)

If the claimant proves that the threats were made and that he is a person aggrieved by them, he is entitled to the relief claimed unless the defendant shows that the acts in respect of which proceedings were threatened did constitute, or if done would have constituted, an infringement of the copyright concerned.

(3)	Mere notification that work is protected by copyright does not constitute a threat of proceedings for the purposes of this section.

(4)	A copyright infringement report within the meaning of section 124A(3) of the Communications Act 2003, if notified to a subscriber under section 124A(4) of the Communications Act 2003, does constitute a threat of proceedings for the purposes of this section.""

Expect the entertainment industry lobbyists to be having a quiet word with Peter Mandelson about ensuring that one doesn't see the light of day.

Anopticon

From the ever terrific EDRI-gram, Italy: The Anopticon project - putting surveillance back in its place.

"Nowadays, CCTVs are the practical implementation of the "Panopticon", theorised in 1791 by Jeremy Bentham as the "ideal prison", one that keeps people in place by using their natural fear of being surveilled.
The Anopticon project is a reaction to the huge rise in CCTVs installations in Italian cities. Information on CCTVs - where they are, what they point at, which area is being surveilled - is collected by members of the project and put online, publicly accessible via the "Big Brother Viewer". The project has already concluded that a large part of CCTVs does not provide the "information notice" required by Legislative Decree 196/2003 (which implements the Data Protection Directive in Italy).
The project started in Venice, but it soon spread to other cities including Padova, Foggia, Urbino and Solero (Alessandria). More and more "anopticon groups" are born, to contribute to the Big Brother map. Anyone from anywhere can join in.
The Anopticon project has also launched the "Denounce illegal CCTVs" campaign: every surveillance device that does not respect Italian data protection law (including the need for an "information notice") will be signalled to the Italian Data Protection Authority, without excluding formal complaints for the more powerful and invasive surveillance systems such as the "Argos" and "Hydra" systems being implemented in Venice which are able to automatically track the movement of boats and people.
The Anopticon project - Big Brother Viewer
http://www.tramaci.org/anopticon"

Hmmm. Legislative Decree 196/2003? I wonder what the UK equivalent might be? I also see an opportunity for a Tony H. type mapping and consultation project here.

Ohio Court: police need warrant for cell phone search

Here's an interesting development - according to the Washington Post the Ohio Supreme Court has held that police officers must obtain a warrant before scanning the contents of a suspect's mobile phone.

"The Ohio Supreme Court said Tuesday police officers must obtain a search warrant before scouring the contents of a suspect's cell phone, unless their safety is in danger.
The American Civil Liberties Union of Ohio described the ruling as a landmark case."

Landmark case definitely. I don't know of any others that have come to a similar conclusion and it was a close call with a 4 to 3 majority ruling according to the Ohio court's own website.

"(Dec. 15, 2009) The Supreme Court of Ohio ruled today that the Fourth Amendment prohibition against unreasonable searches and seizures requires police to obtain a warrant before searching data stored in a cell phone that has been seized from its owner in the course of a lawful arrest when the search is not necessary to protect the safety of law enforcement officers and there are no exigent circumstances.
The Court’s 4-3 majority decision, which reversed a ruling of the 2^nd District Court of Appeals, was authored by Justice Judith Ann Lanzinger.
Antwaun Smith was arrested on drug-related charges after responding to a call to his cell phone that had been placed by a crack cocaine user acting as a police informant. During the arrest, police searched Smith and found a cell phone on his person.  The arresting officer put the cell phone in his pocket and placed Smith in a cruiser, then searched the scene for evidence. Later, police recovered bags containing crack cocaine at the scene. Officers subsequently searched the contents of Smith’s phone without a search warrant or his consent. They discovered call records and stored numbers that confirmed prior calls between Smith’s phone and the informant’s phone number...

...United States v. Finley... held that a cell phone is similar to a closed container found on an arrestee’s person and therefore subject to search by an arresting officer without a warrant...

...United States v. Park, which held that a cell phone is not a “container” as that term is used in prior Fourth Amendment cases, and that a warrantless police search of data stored in a defendant’s cell phone was unconstitutional...

In today’s decision, Justice Lanzinger wrote: “Smith bases his challenge on the Fourth Amendment to the United States Constitution, which provides protection against unreasonable searches and seizures. It is well established that searches conducted without a warrant are per se unreasonable, subject to certain ‘jealously and carefully drawn’ exceptions.’  Jones v. United States (1958).  ... The exception that the state relies on is the search incident to arrest, which allows officers to conduct a search that includes an arrestee’s person and the area within the arrestee’s immediate control. ... This exception ‘derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations.’ Arizona v. Gant (2009). ... But when the interests in officer safety and evidence preservation are minimized, the court has held that this exception no longer applies.”....

In this case, Justice Lanzinger wrote, “The state argues that we should follow Finley and affirm the court of appeals because the trial court was correct in its conclusion that a cell phone is akin to a closed container and is thus subject to search upon a lawful arrest. We do not agree with this comparison, which ignores the unique nature of cell phones. Objects falling under the banner of ‘closed container’ have traditionally been physical objects capable of holding other physical objects.  Indeed, the United States Supreme Court has stated that in this situation, ‘container’ means ‘any object capable of holding another object.’ New York v. Belton (1981).”   ...

“Although cell phones cannot be equated with laptop computers, their ability to store large amounts of private data gives their users a reasonable and justifiable expectation of a higher level of privacy in the information they contain,” wrote Justice Lanzinger.  “Once the cell phone is in police custody, the state has satisfied its immediate interest in collecting and preserving evidence and can take preventive steps to ensure that the data found on the phone is neither lost nor erased. But because a person has a high expectation of privacy in a cell phone’s contents, police must then obtain a warrant before intruding into the phone’s contents.”
“ ... We hold that the warrantless search of data within a cell phone seized incident to a lawful arrest is prohibited by the Fourth Amendment when the search is unnecessary for the safety of law-enforcement officers and there are no exigent circumstances. Because the state failed to show that either of these exceptions to the warrant requirement applied, the search of Smith’s cell phone was improper and the trial court was required to exclude from evidence the call records and phone numbers taken from the cell phone. We accordingly reverse the judgment of the court of appeals and remand to the trial court for proceedings consistent with this opinion.”
Justice Lanzinger’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer and Maureen O’Connor."

The dissenting opinions whilst accepting the notion of lots of private data on mobile phones nevertheless felt that the specific search at issue here "resembles police officers’ search of a traditional address book found on the person of an arrestee during a search incident to arrest", something which is allowable under the 4th amendment. Justice Cupp, dissenting said:

“The majority bases its broad holdings on its estimation of the possible capabilities of other cell phones and computers. But here only the address book and call records were admitted into evidence.  The issue of a more in-depth warrantless search of ‘data within a cell phone’ is not before us.  I would leave for another day, to a case that factually raises the issue directly, the question of whether police may perform more in-depth searches of information on cell phones that have capabilities akin to a computer.”

It is good to see a supreme court beginning to tackle such cases and getting a handle on a half decent analysis of new technologies. The full decision is available here.

Court bans Pystar's Apple clone sales permanently

From ComputerWorld:
"A federal judge yesterday officially banned Mac clone maker Psystar from selling computers with Apple's Leopard or Snow Leopard operating systems, effectively putting an end to a 17-month-old lawsuit...

The injunction, however, is more or less moot, as Psystar shut down its Mac clone business earlier this month when it struck a settlement deal with Apple that requires it to pay nearly $2.7 million in damages if it loses appeals to the next level."

Apologies for the formatting - I'm trying to post this through Internet Explorer, since I'm working at someone else's machine and IE and blogger don't seem to get along too well.

Solove on Privacy

Given the rash of articles on Google, Facebook and privacy this week, it would be a good time for anyone who really wants to understand the issue in the context of the information age to read some of Daniel Solove's work, in particular two terrific articles 'I've Got Nothing to Hide' and Other Misunderstandings of Privacy,  and A Taxonomy of Privacy and his books The Digital Person and Understanding Privacy.

ACTA timeline by Michael Geist

Michael Geist has very helpfully put together a dynamic ACTA timeline and committed to keeping it up to date. (Embedded below)

The ACTA Timeline on Dipity.

Cory on audiobooks

Cory Doctorow is fed up with DRM on audiobooks.

"
I probably could have “pirated” the same audiobooks more quickly—after all, it's not hard to find cracked Audible titles on the Internet. This is why I can't understand why publishers or writers opt for DRM. It clearly doesn't stop real pirates from copying, and it locks good customers into the DRM vendor's ecosystem. I wouldn't sell my books through a bookseller who demanded readers only enjoy them on a chair from Wal-Mart; why would I sell my audiobooks on terms that insist my listeners only use devices approved by a DRM vendor?
So, RHA and I went to Audible and politely asked them to sell Little Brother without DRM. They turned us down flat. And because Audible is the only retailer who can sell on iTunes, that closed the door on the largest distribution channel in the world for audiobooks.
For my next book, Makers, we tried again. This time Audible agreed to carry the title without DRM. Hooray! Except now there was a new problem: Apple refused to allow DRM-free audiobooks in the Apple Store—yes, the same Apple that claims to hate DRM. Okay, we thought, we'll just sell direct through Audible, at least it's a relatively painless download process, right? Not quite. It turns out that buying an audiobook from Audible requires a long end-user license agreement (EULA) that bars users from moving their Audible books to any unauthorized device or converting them to other formats. Instead of DRM, they accomplish the lock-in with a contract."

Mischief managed on data protection

In Harry Potter speak, mischief media managed: the government officials who briefed the Times columnist David Aranovitch, ahead of Justice Minister Michael Wills disingenous speech on data sharing, will be giving themselves a pat on the back over his rant criticising the authors of the Joseph Rowntree Reform Trust report The Database State.

The minister's speech and the Times article are so full of holes and dogma that it's hard to know where to start, so instead I will quote from William Heath's clinical dissection of the article:

"You’ve managed to work out Michael WiIls works for the government. But you’ve eaten up his chocolate-covered waffle without a sceptical glance.
Mr Wills also accepts that government must take blame for the poor level of debate because it has too often been “overly defensive and dismissive of criticism. Government believes it is acting benignly and legally and has not adequately recognised the fears of those who believe this is not the case.”
This is tripe. The poor level of debate on technology in public services isn’t because the government hasn’t been shoutey enough. It’s because the government is too assertive and indulges in groupthink, failing to take other views into account. At a shallow level they have a good intention, but they fail to realise the less desirable consequences of their ill-thought-out implementation.
I wouldn’t say there’s a deep underlying malevolence, but the poor manner in which they engage with others who have a different good intention is tantamount to malevolence. Your article illustrates this very well.
Central to this is their documented failure to listen effectively to the views of scientists (not that I claim to be one, but my co-authors are) and also of service users and front-line practitioners. This is why NHS CfH has failed, as even the government now admits, and why the ID Scheme and ContactPoint will fail."

In addition I'd can't help extracting one small sample from the minister's speech:

"ContactPoint was developed in response to a key recommendation of Lord Laming's inquiry into the tragic death of Victoria Climbié: to improve the exchange of information between different agencies working with children. But I am aware that ContactPoint has attracted a lot of interest and given rise to some concerns – and some misunderstandings. So Delyth Morgan and I want to hear views about ContactPoint from users and practitioners and explore these in light of the facts about the directory and feedback received from early adopters."

The UK government has been informed repeatedly and in great detail by world renowned security, information systems and child protection specialists that you cannot secure a database with the personal details of over 10 million people, when more than a third of a million people need to have routine access to that database as a regular part of their jobs.  Yet they are still talking about ContactPoint attracting "a lot of interest" and giving "rise to some concerns" and wanting to "hear views about ContactPoint".  This government has made such an art of collecting views on multiple policy areas, systematically ignoring them and dogmatically and blatantly continuing to pursue their ill-informed agenda, that it should not be a surprise that they are rolling out the same claptrap again.  It must be seriously annoying, however, for professionals who have invested a lot of effort in engaging and informing the government of the realities of modern technologies, to be subjected to the kind of attacks we hear from ministers and have seen in the Times this morning.  I'm annoyed and I wasn't even involved in writing the Rowntree report. Like William Heath I don't believe there is any deep underlying malevolence on the part of the government - most of them originally got into politics with the aim of helping people and making a difference.  But there comes a point at which the almost theological devotion to being 'on message', and the cultivation of blind ignorance in shutting out any information that contradicts that message, comes to have a malevolent effect.  Malevolence, intended or otherwise, becomes an emergent property of the system.

Recording industry sued for $billions in copyright infringement suit

According to Michael Geist the Candian recording industry in facing a lawsuit for copyright infringement that could end up costing them billions of dollars.

"Chet Baker was a leading jazz musician in the 1950s, playing trumpet and providing vocals. Baker died in 1988, yet he is about to add a new claim to fame as the lead plaintiff in possibly the largest copyright infringement case in Canadian history. His estate, which still owns the copyright in more than 50 of his works, is part of a massive class-action lawsuit that has been underway for the past year.
The infringer has effectively already admitted owing at least $50 million and the full claim could exceed $60 billion. If the dollars don't shock, the target of the lawsuit undoubtedly will: The defendants in the case are Warner Music Canada, Sony BMG Music Canada, EMI Music Canada, and Universal Music Canada, the four primary members of the Canadian Recording Industry Association...

The class action seeks the option of statutory damages for each infringement. At $20,000 per infringement, potential liability exceeds $60 billion.
These numbers may sound outrageous, yet they are based on the same rules that led the recording industry to claim a single file sharer is liable for millions in damages.
After years of claiming Canadian consumers disrespect copyright, the irony of having the recording industry face a massive lawsuit will not be lost on anyone, least of all the artists still waiting to be paid."

Latest Microsoft dispute in China

A friend of mine in China tells me that this court case involving Microsoft and a dispute over fonts, which I haven't paid a lot of attention to, has been a really big deal over there.  Apparently it's been all over the media, court hearings televised live and watched by millions and Microsoft have not been faring too well in the PR stakes as a result.

"The US software giant must not sell versions of Windows XP, 2003, 2000 or 98 software in the Asian super-economy after a Beijing court ruled the products include Chinese fonts designed by a local company.
The court said Microsoft had violated its licensing agreement with Zhongyi Electronic, which designs character fonts.
Microsoft said it plans to appeal the ruling, adding it "respects intellectual property rights" and uses the intellectual property of third parties "only when we have a legitimate right to do so"."

Said friend also tells me that the average woman on the Bejing omnibus has no concept of the notion of people being able to "own" intellectual property.  They have shared ideas for millenia - that's how the world gets better - copy, refine, re-mix, rework, improve.  It doesn't exactly harmonise then with Microsoft allegedly breaching local intellectual property regulations but she reckons they are being lambasted by the public more for being a global US corporation than for the specifics of their transgressions.  As I said I hadn't paid much attention to it so it was interesting to get a local perspective.

My keynote at and some thoughts about WIPO

I'm the lucky beneficiary of some unexpected space in my diary today due to a last minute cancellation of a meeting, so I've finally got around sticking the slides from my WIPO keynote a couple of weeks ago up on Slideshare (embedded below).

Wipo Key Role Of Tutors

View more presentations from rcorrigan.

I said at the time that I discovered some amazingly talented and dedicated people working within WIPO and likewise amongst their tutors from around the world. In the thick of all the complex politics and bureaucracy of the UN, these people have a really deep understanding of the issues and the importance of balance in international IP policy; and it was really interesting to hear, from the inside, of the energy underpinning the development agenda.

I should also thank Altaye Tedla and Caroline Storan at the WIPO academy who were very hospitable and do a tremendous job supporting 26,000 students all round the world.

Amongst the highlights of the workshop for me, in addition to the obvious opportunity to discuss IP policy with some deeply thoughtful and very well informed professionals from all across the globe - spanning the whole spectrum from IP expansionists to IP reductionists -  were Esteban Burrone's talk on evolving developments on the WIPO development agenda and Anotole Krattiger's session on the IP Handbook of Best Practices.

One of the biggest problems faced by the WIPO academy, their tutors and students is the issue of lack of access to educational resources:

• Teaching resources
• Case studies
• Articles
• Books
• Teaching activities
• Region/jurisdiction specific resources/tools
• Library resources
• Online databases
• Primary legal materials

The WIPO academy produces generic courses which are taught globally but then the tutors struggle to get access to resources to be able to tailor the materials to the specific needs of their students across a wide range of jurisdictions for example.  Although they are working hard to find some compromise the WIPO library can't facilitate tutors' access to resources, as we do for our tutors at the Open University, because of copyright law and licensing restrictions, since the tutors and students are resident in so many different areas.

The irony of WIPO's mission to educate people about intellectual property being hindered by the state of copyright law and publishers' licensing restrictions was quite stark.

So it was good to learn, therefore, of a new, rich, open IP resource which I hadn't previously been aware of, the IP Handbook of Best Practices, which was released under a creative commons attribution share alike licence.  It's a terrific piece of work put together by Professor Krattiger with the help of over 200 experts and I'd encourage you to go and explore the website which is really well organised - not just restricted to the handbook but providing links to other publicly available materials such as IP database and search tools too.

Prof. Krattiger is very much the pragmatist, believing whatever the state of affairs in the battle between IP expansionists and reductionists and whatever the prevailing wind on the state of balance in the system, we have to make it work through making deals in the marketplace. If the rules don't suit you, draw up a contract that does and start negotiating hard, is his primary advice - we need to stop worrying about IP regulations and start focussing on IP management.  He advocates a high standard of ethical behaviour and professionalism in licencing neogtiations, particularly important in the agriculture and health sectors he has specialised in for many years.  Ethical stewartship of intellectual property is really important in the management of our knowledge commons.  Presumably the thinking is that with a wide portfolio of working deals in the market then the regulations will follow on.

I couldn't agree more that we need ethical stewartship of IP but I'm not sure there is a lot of evidence for this in the IP marketplace, which tends to be amoral.  I don't necessarily share Prof Krattiger's optimism that the intellectual property landscape will be rebalanced equitably through the market but we did agree on one aspect of the confusion surrounding patents.  Very often in public discussions about patents two things get confused

• access and
  
• incentive to innovate

He believes that if we disentangle the strategies for access to Aids drugs in Africa, for example, from strategies to encourage innovations in the development of further improved Aids treatments, we will make more progress, on access and development of improved drugs, much more quickly.  The system has not prevented the development of treatments - there are AIDs drugs but the problem in poorer countries is the lack of access to these drugs that could help the condition of millions of Aids sufferers.

It is a general feature of public debates on intellectual property that crucial and separate issues get confused in this way, sometimes deliberately to shape the agenda and sometimes through simple confusion.  But as long as the intellectual property regulations themselves continue to hinder access to knowledge in this and other areas, and the debate continues to get framed and disproportionately influenced by commercial institutions and lobbyists with a vested interest in particular outcomes, then the confusion is not going to get cleared up any time soon.

Thanks again to Altaye Tedla, Caroline Storan, Glyn Martin and Mrs Gao Hang for their hospitality and all the work they put into making the workshop such a success; and thanks to all the delegates for making an outsider so welcome (and for all your positive feedback).

Music label accountancy

With the exception of one short sentence in the middle this blog post from a member of the band Too Much Joy is just about the politest description of music label accounting disadvantaging artists that I've seen anywhere.

"A word here about that unrecouped balance, for those uninitiated in the complex mechanics of major label accounting. While our royalty statement shows Too Much Joy in the red with Warner Bros. (now by only $395,214.71 after that $62.47 digital windfall), this doesn’t mean Warner “lost” nearly $400,000 on the band. That’s how much they spent on us, and we don’t see any royalty checks until it’s paid back, but it doesn’t get paid back out of the full price of every album sold. It gets paid back out of the band’s share of every album sold, which is roughly 10% of the retail price. So, using round numbers to make the math as easy as possible to understand, let’s say Warner Bros. spent something like $450,000 total on TMJ. If Warner sold 15,000 copies of each of the three TMJ records they released at a wholesale price of $10 each, they would have earned back the $450,000. But if those records were retailing for $15, TMJ would have only paid back $67,500, and our statement would show an unrecouped balance of $382,500.
I do not share this information out of a Steve Albini-esque desire to rail against the major label system (he already wrote the definitive rant, which you can find here if you want even more figures, and enjoy having those figures bracketed with cursing and insults). I’m simply explaining why I’m not embarrassed that I “owe” Warner Bros. almost $400,000. They didn’t make a lot of money off of Too Much Joy. But they didn’t lose any, either. So whenever you hear some label flak claiming 98% of the bands they sign lose money for the company, substitute the phrase  “just don’t earn enough” for the word “lose.”"

Read the whole post however. It's well worth it. Thanks to Glyn Moody for the pointer.

Update: 1709 Copyright blog commentary on this is well worth a read.

UK government consultation on sharing data on electoral roll

The UK Ministry of Justice is running a consultation on whether it would be a good idea to abolish the edited version of the electoral roll, in other words the version that the government sells to commercial and other organisations. The consultation document explains the context in its foreword:

"In July 2008, Dr Mark Walport1 and Richard Thomas2 undertook a review of the framework within which personal information is used in the public and private sectors: the Data Sharing Review3. As part of that Review, they recommended that the Government should remove the provision in law which allows for the sale of the Edited Register4 and abolish the Edited Register. As a result of the Review’s findings, the Government committed to consult on the future of the Edited Register.
The Electoral Commission and the Association of Electoral Administrators have argued that the electoral register should primarily be used for electoral purposes. Dr Mark Walport and Richard Thomas argued in the Data Sharing Review that:
“…selling the edited register is an unsatisfactory way for local authorities to treat personal information. It sends a particularly poor message to the public that personal information collected for something as vital as participation in the democratic process can be sold to ‘anyone for any purpose’. And there is a belief that the sale of the electoral register deters some people from registering at all.”
Any proposal that would change the nature and operation of the Edited Register could have an effect on those organisations that currently use it, as well as the public. This consultation is intended to enable us to build a firmer evidence base about the advantages and disadvantages of the Edited Register and the impact of any changes, and to consider the way forward on the basis of the responses we receive."

Also from the executive summary:

"The Edited Register came into existence in 2002 when the Government introduced Regulations to establish a new framework governing access to and the supply and sale of electoral registers. This followed the recommendation made by the Final Report of the Working Party on Electoral Procedures5 (“The Howarth Report”) and the judgment made in a court case (Robertson6) brought by an elector concerned about the use of his electoral data for commercial purposes. Prior to 2002, the full electoral register could be made available for a variety of purposes. Any company, organisation or person could buy a copy.
As a result of the Representation of the People (England and Wales) (Amendment) Regulations 20027 (subsequently referred to as “the 2002 (Amendment) Regulations”) there are now two versions of the electoral register: a full version, and an edited version of the full register. The latter is known as the Edited Register and shows only the names and addresses of those on the full register who have not ‘opted out’ of inclusion in the edited version.
Unlike the full electoral register, the supply and use of which is strictly regulated in law, the Edited Register is available for sale to anyone for any purpose. Members of the public may choose to have their details omitted from the Edited Register by ‘opting out’ by ticking the box included for the purpose on the form used for the annual canvass, which is sent to each household on a yearly basis to determine the names of those to be included on the electoral register. Once produced, the Edited Register is used by a number of groups like charities and businesses for a variety of purposes including, but not limited to, compiling mailing lists."

So the consultation is being set up in response to criticisms about the sale of electoral roll details but interestingly, amongst the options in the questionaire the government is using, option 3 considers widening the commerical access to the details on the full register:

"Question 6. From the list below, which options are your most and least preferred? Please give reasons.

Options abolishing the Edited Register

Option 1: Abolish the Edited Register as soon as practicable.

Option 2: Set a timescale or ‘trigger point’ for abolition of the Edited Register.

Option 3: Abolish the Edited Register as soon as practicable, but extend access to the Full Register for other purposes to be decided in light of the consultation.

Options retaining the Edited Register

Option 4: Retain the Edited Register, but impose restrictions in legislation on who can purchase it and for what purposes.

Option 5: Replace the current ‘opt out’ provision with an ‘opt in’.

Option 6: Improve guidance for the public about the Edited Register."

I tick the opt out box on the form every year, so would be firmly opposed to extending access to the full register, i.e. option 3 above.

Digital economies bill takes aim at public wi-fi

Professor Lilian Edwards was in fine form in the Guardian yesterday pointing out how the government's digital economies bill is aimed, amongst other things, at banning public wi-fi networks.

"A lot of people have talked to me over the last week about Wi-Fi (open and closed, i.e. password-protected) and the Digital Economy bill. The more I try to find answers, the more ludicrous it becomes. For instance, last week it turned out that a pub owner was allegedly fined £8,000 because someone downloaded copyright material over their open Wi-Fi system. Would that get worse or better if the Digital Economy bill passes in its present form?
To illustrate, I'm going to pick my favourite example of a potentially worried wireless network provider: my mum.
She doesn't understand or like the internet, refuses to even think about securing her Wi-Fi network. What is her legal status? What will she say if/when she receives warnings under the Digital Economy bill because someone has used her open Wi-Fi to download infringing files?"

Highly recommended. It's a natural deduction from the argument that someone running an open wi-fi network cannot be expected to know who might be using that network illicitly, that the way to deal with this is to ban open wi-fi networks. This, however, as Lilian so eloquently illustrates, leads to further unintended consequences. And so we have the bad Net policy domino effect, where 3 strikes leads to banning public wi-fi leads to... and all because Peter Mandelson doesn't understand the Internet.

EU ACTA analysis leaks

Michael Geist notes that the EU analysis of US ACTA proposals has leaked.

"The European Commission analysis of ACTA's Internet chapter has leaked, indicating that the U.S. is seeking to push laws that extend beyond the WIPO Internet treaties and beyond current European Union law (the EC posted the existence of the document last week but refused to make it publicly available).  The document contains detailed comments on the U.S. proposal, confirming the U.S. desire to promote a three-strikes and you're out policy, a Global DMCA, harmonized contributory copyright infringement rules, and the establishment of an international notice-and-takedown policy."

Lilian Edwards on the Digital Economies Bill

Look no further than Lilian Edwards' blog for a terrific analysis of Peter Mandelson's 3 strikes proposals published in the UK government's digital economy bill last week.

"Clauses 4-17 of the Digital Economy Bill introduce an “initial obligations” regime for ISPs, whereby subscribers accused of filesharing by rightsholders will be sent warnings of alleged copyright infringements, or “strikes”, by their ISPs; and a “technical measures” phase, to be green-lit only after evidence has been amassed that warnings do not work (but see below), which will allow sufficiently warned offenders who still seem not to have seen the error of their ways to be disconnected from the Internet. Traffic slowing and banning of access to certain sites eg the Pirate Bay, may also become available measures.

The Bill also, almost as an after thought, adds a “Henry VIII” clause, which allows the relevant Secretary of State (currently Lord Mandelson of Mordor sorry BIS) to make new copyright law in any area of Parts 1 and 7 of the Copyright, Design and Patents Act 1988 (CDPA), by statutory instrument (SI) not primary legislation, if justified by speed of technological developments (even ones that haven’t happened yet – see proposed new s 302A of the CDPA.) So essentially, new and important copyright laws (not exclusively to do with filesharing – DRM, fair dealing and user rights might all be affected) are to be made under the public radar, and without proper Parliamentary scrutiny. anytime, anywhere (hereafter, the “Martini clause”).

There has been a great deal of coverage of these matters – see eg here and here – so I will only point out a few matters of detail which have struck me as particularly worrying, on top of my, er, well-ventilated previous concerns about the principle of a regime of “three strikes” at all. Most of the press attention has focused on the posited disconnection regime, since of course the sanction is so far reaching. But the warnings regime, which if the Bill passes is likely to be of more immediate concern, is also staggeringly poorly drafted"

See also Lilian's follow ups on Thursday and Saturday. Read, re-read and inwardly digest and it would be good, if unlikely, if policymakers did likewise.

The Google books settlement an abuse of the class action process?

Pamela Samuelson has a great article on the Google book settlement in The Nation.

"The GBS agreement is, however, less a settlement of a class action lawsuit than a
forward-looking commercial joint venture that far exceeds in scope the scanning-to-index
issue being litigation. Class action settlements typically resolve only the specific dispute
between the parties. The more forward-looking the settlement, the broader its scope, the
broader the class, and the more the deal tries to release the defendant from liability for
future conduct, especially conduct different in kind from the litigated issue, the less likely
it is that judges will approve it. The GBS deal is troublesome on all four grounds.
Moreover, serious questions exist about whether the authors and publishers who
negotiated the settlement adequately and fairly represented the interests of the class as a
whole."

Update: See also Prof. Samuelson's thoughts on the politics of the negotiations involving France and Germany.

UK jails schizophrenic under RIPA

The first person to be jailed in the UK for refusing to disclose the keys to decrypt his computer files is someone with a confirmed formal dianosis of schizophrenia, according to the Register.

"The first person jailed under draconian UK police powers that Ministers said were vital to battle terrorism and serious crime has been identified by The Register as a schizophrenic science hobbyist with no previous criminal record.
His crime was a persistent refusal to give counter-terrorism police the keys to decrypt his computer files...

 News that the first person jailed for the offence of not talking in a police interview has been judged no threat to national security and suffers from a mental condition associated with paranoia and a fear of authorities is unlikely to win RIPA Part III new supporters."

WIPO Academy Workshop

I've just spent a really interesting couple of days at the WIPO Academy in Geneva at their training and design workshop for distance learning tutors and administrators.  I was there to talk about distance learning rather than IP but had some fascinating discussions with people from all over the world with a wide range and highly informed set of perspectives on the IP landscape.  There are some amazingly talented and dedicated people working within WIPO and likewise amongst their tutors from around the world. In the thick of all the complex politics and bureaucracy of the UN, these people have a really deep understanding of the issues and the importance of balance in international IP policy; and it was really interesting to hear, from the inside, of the energy underpinning the development agenda. I'll post some more collected thoughts on the workshop and the slides from my keynote address here when I get some time and space.