UK Parliament Human Rights Committee critical of 3 strikes element of Digital Economy bill

The Joint Committee on Human Rights has just published its Legislative Scrutiny: Digital Economy Bill (Fifth Report of Session 2009-10) and criticises the provisions relating to at UK 3 strikes regime which would lead to internet services being terminated for suspected file sharers.  From the conclusions:

"4. The lack of detail in relation to the technical measures proposals – and in particular,
in relation to the scope of technical measures, the criteria for their imposition and
the enforcement process – has made our assessment of the compatibility of these
proposals with the human rights obligations of the United Kingdom extremely
difficult. As we have explained in the past, flexibility is not an appropriate reason for
defining a power which engages individual rights without adequate precision to
allow for proper parliamentary scrutiny of its proportionality. (Paragraph 1.28)
5. We reiterate our invitation to the Government to provide fuller justification for its
proposals. (Paragraph 1.38)
6. In our view, it is impossible assess fully whether these proposals will operate in a
compatible manner in practice without more detail of the proposed mechanism for
technical measures. Because of the lack of detail on the face of the Bill and the limited
foundation for justification provided for the breadth of these proposed powers, we
acknowledge the concerns about the potential for these powers to be applied in a
disproportionate manner which could lead to a breach of internet users’ rights to
respect for correspondence and freedom of expression. (Paragraph 1.39)
7. There are a number of issues which could helpfully be clarified; some on the face of
the Bill, in order to reduce the risk that these proposals could operate in a manner
which may be incompatible with the Convention. We recommend that the Minister
clarify:
a)the precise intended impact of these proposals on individual accounts, including
(i) whether technical measures may include indefinite suspension of an account and
whether any service limitations imposed will be for a specified time-frame and/or
renewable; and (ii) any potential impact the imposition of technical measures may
have on the ability of a user to secure an alternative service; (Paragraph 1.40)
b) the minimum criteria which would be required to be satisfied before the
imposition of technical measures. The Government has indicated that technical
measures will follow the issue of copyright infringement notices. It would be helpful
if the Government could clarify whether (i) the imposition of technical measures will
be subject only to the initial assessment of the copyright holder that it appeared that
the individual service user had breached his or her copyright; and (ii) if so, would the
same standard of evidence and proof be required for the imposition of technical
measures as would be required for the issue of copyright infringement reports?
(Paragraph 1.40)
8. We recommend that the Bill be amended to make it clear that technical measures
may only be introduced after an assessment by OFCOM of the necessity and
proportionality of these new measures, taking into account the impact of the initial
obligations code. In so far as it is possible, we recommend that the Bill should be
amended to provide additional details on the minimum criteria for the imposition of
technical measures, including the standard of proof which must be applied; the
“trigger” for the imposition of such measures; and any relevant defences for service
users who have taken all reasonable measures to protect their service from
unauthorised use and who have not knowingly facilitated the use of their service for
the purposes of infringing copyright. (Paragraph 1.41)...

11. Without a clear picture of the criteria for the imposition of technical measures, it is
difficult to reach a final conclusion on the fairness of the substantive decision making
process for the imposition of technical measures and its compatibility with Article 6
ECHR and the common law. We recommend that at a minimum, the Government
must be required to confirm that the First Tier Tribunal will be able to consider
whether an infringement of copyright has occurred and any defence that no
infringement of a copyright holders’ rights has been committed or knowingly
permitted by the account holder. Further information about the quality of evidence
to be provided and the standard of proof to be applied should be provided, ideally on
the face of the Bill, and at a minimum by the Minister during the course of debates
on these provisions. In addition, we recommend, for the avoidance of doubt, that the
Bill require that the technical obligations code must provide for any appeal rights to
suspend the application of technical measures and for costs of any successful appeal
to be recoverable by any successful applicant. (Paragraph 1.50)"

Translation: Writing a law that says 3 strikes will be implemented without specifying how, why, where, when, by whom, under what authority and what kind of due process and pre-cutoff appeal mechanism will be provided is unacceptable.   The comittee also criticises the government over the notion that clause 17 would give a government minister the power to change copyright law when they felt like it without recourse to parliament.

Parallels between open access and clean energy

The brilliant Peter Suber has outlined 4 analogies between open access and clean energy.

"When I think about the political fortunes of open access, I find that I compare them privately to the political fortunes of clean energy.  I know there are differences, but I keep returning to the similarities. 

I'm not ready to say that the similarities are more salient than the differences.  But it's time to get these analogies out in the open.

(1) The gap between breakthrough and uptake

Lots of smart and well-funded people are looking for a source of energy that is renewable, inexpensive, efficient, low-impact to produce, low-impact to use, and doesn't require a police state to keep byproducts out of the hands of terrorists.  Suppose they succeed.  That would be a momentous breakthrough.

This is already a key difference between OA and clean energy.  On the energy side, we're well-embarked but still moiling through primary difficulties of physics and engineering, trying to raise efficiencies and lower prices.  But on the OA side, the breakthrough is in hand, and has been since the birth of the internet.  We've long since replaced the difficulties of engineering with the difficulties of uptake and persuasion...

(2) Putting obstacles in our way

Imagine the same breakthrough in efficient, inexpensive, clean energy.  Now imagine that during the age of dirty energy we had adopted laws and practices which turn out to deter the development, uptake, and use of the spectacular new technology.   Some of the obstacles clogging the path to adoption are of our own making.

We might have provided subsidies to dirty energies, which in turn created jobs and revenues, which in turn elected politicians and enriched corporations who now fight to protect those jobs and revenues at the expense of any energy breakthrough.  We might have grown to depend on cars, which spawned suburbs, which not only elected politicians but changed the landscape of life for millions of people and now make almost irrelevant any energy breakthrough that doesn't work in cars.  We might have grown to depend on cheap oil, which nurtured whole industries and lifestyles which we find it inconceivable to abandon...

(3) Slowing down to protect the incumbents

Imagine the same breakthrough technology producing efficient, inexpensive, renewable, clean energy.  Imagine that the only downside seemed to be that it would jeopardize the revenue streams of oil companies and coal mines. 

Should we hesitate to use it?  Should we wait until we can find a way to ensure the survival of the threatened industries?  When policy-makers weigh the advantages and disadvantages of the new technology, should the effect on oil companies and coal mines count as a disadvantage?  If so, how much environmental and economic good are we willing to forego in order to prop up the old industries? ...

(4) Some pay for all

The economics of wind power are peculiar.  The benefits are global (reduced reliance on oil, reduced greenhouse gas emissions) but the costs are local (expense, sight, sound, wildlife damage).  The costs and benefits largely affect different groups.  Some other clean sources of energy, and some dirty ones, share the same peculiarity.

So do OA resources, and especially OA journals.  The benefits are global (barrier-free access for everyone, increased research productivity) but the costs are local (expense, labor).  Moreover, the costs and benefits largely affect different groups.  The costs are borne by the publisher and those who support it through publication fees or subsidies.  The benefits are enjoyed by researchers everywhere.

I often point out that not all (and not even most) OA journals charge publication fees...
http://www.earlham.edu/~peters/fos/newsletter/11-02-06.htm#nofee

...and that there are many different business models for OA journals,
http://oad.simmons.edu/oadwiki/OA_journal_business_models

But one thing that all OA journal business models have in common is the "some pay for all" principle.
http://www.earlham.edu/~peters/writing/acrl.htm

"Some pay for all" (SPA) applies equally to fee-based and no-fee OA journals.  It also covers green OA as well as gold OA.  The cost of a repository is borne by the institution hosting it, and perhaps a few benefactors elsewhere such as foundations or consortial peers.  But the benefits are global."

Highly recommended.

Hollywood loses court case v Aussie ISP iiNet

From SMH:

"The giants of the film industry have lost their case against ISP iiNet in a landmark judgement handed down in the Federal Court today.
The decision had the potential to profoundly impact internet users and the internet industry as it sets a legal precedent surrounding how much ISPs are required to do to prevent customers from downloading movies and other content illegally.
But after an on-and-off eight week trial that examined whether iiNet authorised customers to download pirated movies, Justice Dennis Cowdroy found that the ISP was not liable for the downloading habits of its customers."

And in a separate development the Australian Department of Foreign Affairs and Trade (DFAT) has denied that ACTA negotiators have any plans to introduce a 3 strikes regime.

The ire of an ACTA negotiator

In today's FT Assistant United States Trade Representative for Intellectual Property and Innovation, Stanford McCoy, complains about widespread criticism of secret ACTA negotiations.

"Sir, The article “Secret deal aims to scuttle internet pirates” (January
29) missed the point of ongoing negotiations towards an Anti-Counterfeiting Trade Agreement (ACTA).

Intellectual property protection is critical to jobs and exports that depend on innovation and creativity. Trade in counterfeit and pirated products undermines those jobs and exports, exposes consumers to dangerous knock-offs from toothpaste to car parts, and helps fund organised crime.

The ACTA negotiations are one of many international efforts to fight counterfeiting and piracy – not to “transform” already strong US and European Union copyright laws. Far from keeping them secret, governments participating in these negotiations have sought public comments, released a summary of issues under discussion, and enhanced public engagement.

Among other things, the summary states clearly that “ACTA is not intended to interfere with a signatory’s ability to respect its citizens' fundamental rights and civil liberties”.

The office of the US trade representative has posted ACTA information online at www.ustr.gov/acta. The site includes meeting agendas and links to help the public understand the US approach to key provisions, which is consistent with US law. Other partners have made their own information available about this important work to protect consumers and intellectual property worldwide."

An ACTA true believer, unlike Jim?  By now you'd have thought we'd have learned to trust people who sincerely believe they are right...

Ok. Guilty as charged I'm being cynical but I'm not the only one.

Judge hears arguments over rights to gene patents

From the Washington Post:

"A judge on Tuesday weighed whether a lawsuit should proceed that seeks to invalidate a company's patents on two genes linked to an increased risk of breast and ovarian cancer.
The case challenging whether anyone can hold patents on human genes has broad implications for the biotechnology industry and genetics-based medical research.
Last March, the American Civil Liberties Union and the Public Patent Foundation sued Myriad Genetics Inc., the University of Utah Research Foundation and the U.S. Patent and Trademark Office in U.S. District Court in Manhattan.
The ACLU and the patent foundation say Myriad's refusal to license the patents broadly has meant that women who fear they may be at risk of breast or ovarian cancer are prevented from having anyone but Myriad look at the genes in question."

I'm pleased this one has finally reached the inside of a courtroom but not necessarily that optimistic about the outcome.  Myriad Genetics have been exploiting these patents in a variety of jurisdictions for quite a long time now in patent life terms (since between 1997 and 2000 in the US for example though a number of the patents have been revoked in the EU).

New Book on Net Neutrality

Bloomsbury Academic have just released Chris Marsden's new book, Net Neutrality: Towards a Co-Regulatory Solution under a Creative Commons Attribution Non-Commercial Licence.  Chris has been travelling the world for ten years working and engaging in a dialogue with a veritable Who's Who of academic and telecoms industry experts, in addition to regularly disseminating his insights in a multitude of lucid talks on net neutrality.  As he says in the preface,

"the subject of net neutrality comes up vicariously, interwoven into every subject, and it is this that gives the power to the debate: net neutrality affects and changes everything, it has impact on all other communications policy discussions."

I'm really looking forward to reading it and would encourage regular b2fxxx visitors to do likewise.

Virtual Revolution: the Microsoft case and the web

Several people have asked me about Bill Gates and Microsoft’s role in the history of the Web in the wake of the opening programme in the Open University's new series on BBC2 on Saturday evening, The Virtual Revolution.  In particular there was interest in the legal ruling that presenter Dr Aleks Krotoski said “meant that Microsoft had had its wings clipped.”

There have actually been a series of legal disputes between Microsoft and the US government and between the software giant and the EU.  To keep things relatively simple I’ll focus here on one part of the US case relating to the Web.

By the mid 1990s when the Web hit public consciousness most web users were using a web browser called Netscape Navigator.  Then, as Dr Krotoski says, Microsoft launched its own browser, Internet Explorer, and gave it away for free with its Windows 95 operating system software.  But Microsoft didn’t just give the browser away.  PC manufacturers selling PCs with Windows 95 were obliged, under the software licence agreement, to include the Internet Explorer browser on their PCs.

This didn’t have an immediate impact on Netscape’s market share. However, as Microsoft issued improved versions of Internet Explorer and continued to insist on the bundling software licence provisions requiring PC makers to use their browser, Netscape’s position as market leader was eroded and eventually decimated. People running computers with Windows 95 quite naturally just used the user friendly browser with the convenient icon on their desktop.

Microsoft, in an earlier case with the US Department of Justice (DOJ) settled before the release of Internet Explorer, had agreed not to use its dominant market share to squash the competition.  The DOJ now felt that was exactly what the company was doing to Netscape and, along with 19 US states, in 1997 sued the company for breaking the earlier agreement and engaging in anti-competitive practices.  The case proved to be a complex and fascinating story in itself, full of dramatic courtroom revelations and characters, victories and losses for the various protagonists.

By 1999 Judge Jackson decided that Microsoft had engaged in anti-competitive behaviour that was damaging to competitors and consumers and in April the following year he issued his final ruling to that effect.  Then in June 2000 Judge Jackson ordered that Microsoft be broken into two companies.  Microsoft appealed.

In January 2001 George W. Bush ascended to the White House as the 43^rd US President and John Ashcroft took charge of the DOJ on his behalf. In June 2001 the Appeal Court reversed Judge Jackson’s breakup order.  By September the DOJ told the new judge in the case, judge Kollar-Kotelly that it was no longer seeking the breakup of the company as a penalty for its actions.  By November 2002 Judge Kollar-Kotelly approved a settlement reached by Microsoft and the DOJ and most of the states. Massachusetts fought on alone in vain until 2004.

So did Microsoft have its wings clipped as Dr Krotoski says?  Well it’s debatable and you’ll find many expert commentators on both sides of the divide on that one.  What is clear is that in 1995 Netscape was the window to the web for the masses.  By 1997, when this particular version of the Microsoft legal story began, Netscape still had the lead in the browser wars though Internet Explorer was catching up fast.  By the time the case was settled Internet Explorer was dominant and Windows XP had been launched, including the latest version of Internet Explorer.  Netscape was taken over by AOL in 1998 but effectively ceased to exist by the summer of 2003.

An edited version of this post is available on the open2.net blog.

ACTA: Save Jim!

An amusing take on the ACTA negotiations:

Save Jim Now
by SaveJim

The iPad

I've deliberately avoided getting into the media frenzy about Apple's latest creation, the over-sized iPod Touch called the iPad.  But John, as usual, gets it spot on:

"If the iPad takes off as the iPhone did, then it will have as disruptive an impact on the computing and media industries as the Apple phone has already had on mobile telephony.
And if that happens then we will all have to take a long, hard look at the company that has made it possible.
For the implication of an iPad-crazed world – with its millions of delighted, infatuated users – is that a single US company renowned for control-freakery will have become the gatekeeper to the online world. The iPad – like the iPhone – is a closed, tightly controlled device: nothing gets on to it that has not been expressly approved by Apple. We will have arrived at an Orwellian end by Huxleian means. And be foolish enough to think that we've attained nirvana."

Brewster Kahle also points out some of his concerns about a future of Apple control in this morning's Guardian.

Interpol chief questions body scanner rollout

From the Register:

"The head of Interpol has questioned whether the ongoing scramble by western governments to install body scanners at airports is financially worthwhile and said they are is unlikely to stop terrorists."

Good for him!

Geist: ACTA part 5

Part 5 of Michael Geist's guide to ACTA is now available.

Liberal Democrats support strip search machines?

Liberal Democrat MEP, Sarah Ludford has been pontificating about digital strip search machines in the Guardian.

"So the Westminster parliament and European Union lawmakers (including MEPs) must not only guarantee to the travelling public that their images will be deleted. They must also ensure that body scanners will not be physically capable of storage and transmission. This seems the only way to guarantee that the state will not try to further invade our privacy in future, and that images of celebrities, children or others will not find their way onto the internet and TV. Our fundamental human right to a private life demands no less."

No Ms Ludford.  The only way to ensure these machines are not used to invade our privacy is to ban them. 

This woman is the Liberal Democrat European justice & human rights spokeswoman.  To echo Elizabeth Wilmhurst at yesterday's Chilcot hearing it is extraordinary that the political chattering classes can view the world through such distorted lenses as to assume the deployment of strip search machines for the masses is a reasonable response to a failed bomb plot. Remember that these machines do strip search but don't detect incendiary materials.

I wonder what Churchill, Roosevelt, Truman and others who fought two world wars in the name of freedom would have made of the inheritors of their legacy?  Ben Franklin might be tempted to draw on one of his own quotes:

"They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety."

The cost of 3 strikes regimes

More from Michael Geist, this time on ACTA and the cost of 3 strikes regimes.

"Canadian officials travel to Guadalajara, Mexico this week to resume negotiations on the still-secret Anti-Counterfeiting Trade Agreement. The discussion is likely to turn to the prospect of supporting three strikes and you’re out systems that could result in thousands of people losing access to the Internet based on three allegations of copyright infringement. Leaked ACTA documents indicate that encouraging the adoption of three-strikes - often euphemistically described as “graduated response” for the way Internet providers gradually send increasingly threatening warnings to subscribers - has been proposed for possible inclusion in the treaty.

While supporters claim that three strikes is garnering increasing international acceptance, the truth is implementation in many countries is a mixed bag. Countries such as Germany and Spain have rejected it, acknowledging criticisms that loss of Internet access for up to a year for an entire household is a disproportionate punishment for unproven, non-commercial infringement."

Geist ACTA guide part 2

Speaking of ACTA, here's Michael Geist's ACTA guide part 2.

"Negotiations in the 7th round of the ACTA talks open this morning in Mexico with civil enforcement issues on the agenda.  Yesterday I postedon the developments to-date, including a chronology of talks, issues, and leaks that have led to this week's round of discussions...

Of far greater importance are the leaked documents.  These have confirmed how the Anti-Counterfeiting Trade Agreement is designed to extend far beyond counterfeiting and how it would reshape domestic law in many countries, including Canada.  Links to all the leaks are posted below.  Note that many are dated and therefore reflect initial thinking but may have changed over the course of recent discussions.

• Confidentiality statement: terms of confidentiality for ACTA documents (U.S.)
• Business Group demands for ACTA
• 2007 Outline Proposal for ACTA
• EU Analysis of the ACTA Internet chapter
• EU Advance Summary of the ACTA Internet chapter
• Canadian non-paper on Institutional arrangements
• Definitions (U.S.)
• Border Measures Chapter (U.S. and Japan)
• Criminal Provisions Chapter (U.S. and Japan)
• Civil Enforcement Chapter (U.S. and Japan)"

James Boyle: Obama record on tech policy is mixed

James Boyle has another terrific article in the FT, this time on Obama's mixed record on tech policy

"Let us start 2010 with some good news. In June of last year, I wrote about the Obama Administration’s record on technology policy. There was much to praise in the reinvigoration of the FCC’s commitment to “net neutrality,” (the commitment to a non-discriminatory internet) and a lot to hope for in terms of patent policy.
Unfortunately, in the copyright realm, the Obama administration had devoted itself, like its predecessors, largely to a content industry agenda which has given us mind-numbingly long copyright terms, intrusive legally backed digital rights management, and even a new proposal to cut individuals off from the internet simply for being accused, three times, of illicit downloading."

He goes on to discuss the US's changed stance on the WIPO copyright exceptions treaty for the visually impaired - having originally opposed it the US now supports it - and the secret ACTA negotiations, which if "this were to be debated in public in London or Paris or Washington, those proposals would meet with furious objections by everyone from civil libertarians to the communications and consumer electronics industry."  Read the whole thing. You can't beat James for succinct, engaging, educational reporting on intellectual property and this stuff is incredibly important.

Digital Economy bill debate: quote of the week

Via the wonderful Lilian Edwards, the quote of the week in the House of Lords debate on the government's Digital Economy bill came from Lord Lucas:

"We have to be careful about setting out to criminalise, as he says, a large proportion of our population, particularly when it involves putting them not in the hands of the criminal law with all the safeguards, care and rationality that involves, but in the hands of firms of solicitors who are out to make a

12 Jan 2010 : Column 423

buck from the process. None of these people are nice to deal with."

Court drops Jammie Thomas P2P damages from $1.9 million to $54,000

From Ars Technica:

"Judge Michael Davis is the senior federal jurist in Minnesota. He presides over the gleaming 15th floor courtroom where, earlier this year, P2P user Jammie Thomas-Rasset was slapped with $1.92 million in damages for sharing 24 songs. Davis made no comment on the amount of the award and showed no emotion as it was read out.
But now we know how he rely feels about the jury's work in that case: it led to a "monstrous and shocking" damage award that veered into "the realm of gross injustice."
Davis used his power of remittitur today to slash the damage award by 97.2 percent, from $1.92 million down to $54,000—and he suggested that even this lower amount was too high."

Strip search machines don't work

This 10 minute German TV piece about digital strip search machines shows how the machine failed to spot materials which were subsequently quickly combined to make an incendiary device.
Pretty self explanatory even if you don't speak German

How did OiNK get away with it?

Andres has a succinct analysis of the issues in the OiNK torrent filesharing case.

"So, it is clear that OiNK was in the wrong, and the fate of Mr Alan Ellis was sealed, right? Not really.  The problem seems to have been that prosecutors chose to charge Mr Ellis with conspiracy to defraud, instead of anything related to copyright infringement.  This meant that they had to prove that Mr Ellis was trying to defraud its customers, when it was clear that he was offering a service, and his clientèle knew fully well what they were getting into.  No fraud then.
Why didn’t the prosecution try for copyright infringement offences?  For example, s107 CDPA establishes criminal offences for various copyright infringement acts made “in the course of business”.  As Mr Ellis was clearly profiting handsomely from his services, it could be argued strongly that he was infringing copyright for commercial gain.  Or can it?  The main problem with torrent sites is precisely that no infringing copies are kept on the servers, and that the trackers act simply as facilitators.  Using a real-world analogy, torrent sites are more akin to bar lounges where illicit goods change hands.  Nonetheless, s107 also covers secondary infringement offences, such as communicating infringing copies to the public, which one might think is precisely what a torrent site does.  However, the wording of UK copyright law is problematic in this respect, as it seems entirely drafted with physical copyright infringement in mind...

It seems then that prosecutors were not sure to obtain a guilty verdict through copyright infringement.  OUT-Law makes a good point that the best way to proceed was to pursue OiNK for authorising copyright infringement, which is a civil offence for secondary infringement (see s24(2) CDPA)."

 

Swedish ISP appeals court order to identity torrent owner

From TorrentFreak:

"The Swedish ISP TeliaSonera is refusing to comply with a court ruling ordering the company to hand over information identifying the owner of SweTorrents. Instead, it has appealed the decision, arguing that the verdict is in violation of the European data retention directive and claiming that SweTorrents doesn’t host any copyrighted files."

The piece goes on to claim that if the ISP's appeal is successful the new (2009) Swedish implementation of the Intellectual Property Rights Enforcement directive "will be crushed". Don't bet on it.