Open University Academics Object to BBC DRM Proposals

Following up on our recent open letter to Ofcom on the BBC HD DRM proposal, a large group of Open University academics has written to the Michael Lyons, the Chairman of the BBC Trust, notifying him of our objections to the idea. The full text of the letter is below.

We write in connection with the BBC’s current application to Ofcom to vary the terms of its licence for its HDTV service by encrypting signals using DRM. We have written separately to Ofcom to oppose this proposal but write to you now because we believe it raises several important issues for the BBC Trust.

First, and procedurally, the BBC management’s application to Ofcom raises the question (interestingly identified by Diana Coyle and Chris Woolard in their book for the Trust, 'Public Value in Practice') whether a new application should be made to the Trust, analogous to that for the “bookmarking” function of the iPlayer. We believe that the encryption proposal is so fundamental a change from the original HDTV proposal, and one which raises such fundamental issues for the BBC, that it should be the subject of a new Public Value Test. You will be aware that DRM is a kind of encrypted digital lock used to control access to digital files and signals.  In order to access the BBC HD signal a viewer will require equipment containing the relevant decryption key.

Second, and substantively, the proposal to encrypt the HDTV signal using DRM breaks the clear and, seemingly unequivocal, undertaking made in the BBC’s Building Public Value (published in 2004), and underwritten by the last Chairman of the BBC Governors, Mr Michael Grade, that the BBC would not encrypt its services. Building Public Value stated (p 10) that “the BBC will always be on the side of universal provision, open access and unencryption”.

Third, and also substantively, the proposals to use DRM in the BBC’s HDTV signals breaks from the Trust’s policy, stated (at p 9) in the PVT authorisation of the HDTV proposal, that “Any move from the currently proposed HD standards on picture resolution should not disadvantage consumers who invest in HD equipment which meets the current standards”.

We believe that implementation of the proposals currently before Ofcom will have the effect of disadvantaging viewers who already have bought an integrated HD receiver (TV) and who have a separate PVR. It appears that the DRM proposed will permit recording only when the PVR is "integrated" with the HD receiver. It appears that the regime proposed will require purchase of a new PVR and the use of that tuner, rather than the one in the TV. This, we believe, not only breaks with the terms on which the Trust has authorised the BBC’s HDTV service but also sets an important, and very unfortunate, precedent whereby the interests of rights holders (and if the BBC's Strategy Review is to be believed, the interests of, at most the suppliers of 2.5% of BBC spend) are prioritised over the interests of UK viewers and licence fee payers.

We therefore urge the Trust to undertake a new PVT in respect of the HDTV proposals which are currently before Ofcom and which we believe depart radically from the terms of the authorisation you earlier granted, break with the undertakings made in 2004 in Building Public Value and undesirably and disproportionately prefer the interests of rights holders over those of licence fee payers.


A fuller statement of our analysis is to be found in our evidence to Ofcom at http://www.ofcom.org.uk/consult/condocs/content_mngt/responses/a-e/Blaine_Price.pdf Please contact Blaine Price begin_of_the_skype_highlighting     end_of_the_skype_highlighting (b.a.price@open.ac.uk) and/or Ray Corrigan (r.corrigan@open.ac.uk) in the first instance should you wish to respond to or seek more information in respect of this letter.

Disclaimer: The views expressed are those of the undersigned and do not necessarily reflect those of the Open University.

Yours sincerely

Update: Ofcom have changed the link to our submission to http://stakeholders.ofcom.org.uk/binaries/consultations/content_mngt/responses/Blaine_Price.pdf

Will Clegg's promises stand the test of time

The Independent considers yesterday's promises from Nick Clegg to dismantle Nu Labour's surveillance state to be some long-awaited cheer for liberal hearts.

"There is much to cheer liberal hearts in the Deputy Prime Minister's programme. He sounded the death knell for ID cards, the national identity register, biometric passports and the database of 11 million children. None of these will be missed...

Such innovations represented the very worst of the former Labour government. Successive Home Secretaries introduced criminal justice bill after criminal justice bill – creating some 3,500 new offences – not to serve the public interest but to broadcast their "toughness" on crime. Labour believed that technology offered a quick solution to just about every social problem. They behaved as if the threat of terrorism justified taking a wrecking ball to ancient civil liberties...

The real test of the liberal credentials of this coalition will come when the right-wing media starts to demand illiberal solutions from the Government on everything from drugs to anti-social behaviour and terrorism...

As the months go by and ministers get used to living in the bubble of government security, the temptation to acquiesce to the illiberal suggestions of the police and intelligence services on dealing with the terror threat will inevitably grow."

Update: The latest published coalition agreement provides no further details on the promising promises on civil liberties.

Deputy Prime Minister Speech on great reform bill

More promising promises, from the Deputy Prime Minister in the new UK coalition government, on dismantling the Nu Labour surveillance state.

"I'm talking about the most significant programme of empowerment by a British government since the great reforms of the 19th Century.
The biggest shake up of our democracy since 1832, when the Great Reform Act redrew the boundaries of British democracy, for the first time extending the franchise beyond the landed classes...

Three major steps, that will begin immediately:
One: we will repeal all of the intrusive and unnecessary laws that inhibit your freedom.
Two: we will reform our politics so it is open, transparent, decent.
Three: we will radically redistribute power away from the centre, into your communities, your homes, your hands.

Big, sweeping change.
Not incremental, not bit by bit.
Our democracy has suffered at the hands of encroaching centralisation and secrecy for decades.
Take citizens' rights: eroded by the quiet proliferation of laws that increase surveillance, quash dissent, limit freedom.
Take executive authority: consistently increased by successive administrations to the point that we now have a neutered parliament and government that enjoys almost untrammelled control - over precisely the people who are meant to keep it in check...

Three steps to new politics.
First, sweeping legislation to restore the hard won liberties that have been taken, one by one, from the British people.
This government will end the culture of spying on its citizens.
It is outrageous that decent, law-abiding people are regularly treated as if they have something to hide.
It has to stop.
So there will be no ID card scheme.
No national identity register, a halt to second generation biometric passports.
We won't hold your internet and email records when there is just no reason to do so.
CCTV will be properly regulated, as will the DNA database, with restrictions on the storage of innocent people's DNA.
Britain must not be a country where our children grow up so used to their liberty being infringed that they accept it without question.
There will be no ContactPoint children's database.
Schools will not take children's fingerprints without even asking their parent's consent.
This will be a government that is proud when British citizens stand up against illegitimate advances of the state.
That values debate, that is unafraid of dissent.
That's why we'll remove limits on the rights to peaceful protest.
It's why we'll review libel laws so that we can better protect freedom of speech.

And as we tear through the statute book, we'll do something no government ever has:
We will ask you which laws you think should go.
Because thousands of criminal offences were created under the previous government...
Taking people's freedom away didn't make our streets safe.
Obsessive lawmaking simply makes criminals out of ordinary people.
So, we'll get rid of the unnecessary laws, and once they're gone, they won't come back.
We will introduce a mechanism to block pointless new criminal offences.
And, we will, of course introduce safeguards to prevent the misuse of anti-terrorism legislation.
There have been too many cases of individuals being denied their rights...
And whole communities being placed under suspicion.
This government will do better by British justice.
Respecting great, British freedoms...
Which is why we'll also defend trial by jury...

We will regulate lobbying in parliament.
Not all lobbying is sleazy.
Much of it serves a hugely important function, allowing different organisations and interests to make representations to politicians.
But let's get real: this is a £2bn industry, where, according to some estimates there are MPs who are approached by lobbyists a hundred times every week....
And that activity needs to be regulated properly and made transparent.
Which we'll do, for example, by introducing a a statutory register of lobbyists.
As long as money plays such a big part in our politics, we are never going to curtail the tyranny of vested interests.

So, the repeal of illiberal laws, the reform of politics, and the redistribution of power.
Our very own Great Reform Act.

Not everyone will like it.
Not every MP...
Not the vested interests that want government to stay closed, opaque, easily captured.
But this new government, this new kind of government, creates an enormous opportunity for those of us who have spent our lives fighting for political reform..
This is a moment to step back and look at every shortcoming in our democracy...
Before we launch into the most radical programme of reform, empowerment, enfranchisement in over a century.
A programme so important to me personally that I will take full responsibility for seeing it through."

All very encouraging and possibly even Churchillian, apart from the populist, dare I say it 'Blairite', bit that says "We will ask you which laws you think should go." Nu Labour were big on "consultation", better described as collecting opinions and ignoring all but the privileged few that, amazingly enough, coincided with their own worldview.  The "nothing to hide nothing to fear" brigade are already swamping the broadcast airwaves with their anger at the audacity of Nick Clegg's plans.

Promising but now let's see the detail and the energy to follow it through by a government that is, very shortly, likely to become extremely unpopular when the spending cuts start biting, and when the law and order junkies start screaming about the liberal Clegg being a friend of terrorists and criminals and the "nothing to hide nothing to fear" brigade come marching on again .

The Lib Con forces of Liberty

Henry Porter believes we got lucky with new UK government at least on civil liberties.

"The pernicious laws of the last 13 years are to be swept away in a repeal act thanks to a chance electoral result.

One of the great pleasures of last week was hearing Jack Straw speaking on the Today programme in that patient, reasonable way of the true autocrat, and suddenly realising that I never have to pay attention to him again...

This is not merely a hopeful inference drawn from the change of government. The coalition agreement makes an explicit commitment to liberty and privacy, rolls back state intrusion, restores freedoms and puts a brake on the erosion of rights. There are omissions, of course, but overall this is a moment to cherish because along with specific guarantees, it is clear that the tone of government has changed and that the influence of the new administration may extend right down to the rude and officious exercise of petty authority that flourished under New Labour.
The Queen's speech, now being drafted, will establish a Freedom or Great Repeal bill – the title has not yet been chosen – as a major part of the coalition's legislative programme. All the areas detailed in the agreement between the Liberal Democrats and Conservatives, such as the abolition of ID cards and the children's database (ContactPoint database??), the further regulation of CCTV and the restoration of right to protest will be in it. Measures that weren't in the published agreement will reassert the right to silence and protect people against the huge number of new powers of entry into the home allowed by Labour.
Separate from this will be a complete review of terror legislation that will assess 28-day detention, control orders, section 44 stop and search powers, the harassment of photographers, the Regulation of Investigatory Powers Act, and its amendments, which sanctioned 650 agencies and local authorities to carry out undercover surveillance...

Clearly, this all has to be watched very closely indeed – a lot has yet to be decided and there will be pressures from the civil servants, police, GCHQ and MI5 on such things as internet surveillance and phone intercepts. European plans for data collection and surveillance are a particular worry. But the essential point is that this exciting turn of events would not have been possible under a Labour-Lib Dem coalition or a Conservative minority government. It is a rare stroke of luck for the interests of liberty that the coalition allows the prime minister, David Cameron, to embrace this Lib Dem policy with open arms and ignore the reservations of the law-and-order nuts on his right...

Thinking about the five years of this campaign, I realise that the most agonising part of it was the sense that few people were really paying attention, and that Labour politicians could dismiss those who were as cranks and hysterics. This fear was behind the setting up of the Convention on Modern Liberty last year by Anthony Barnett and me, and the commission of a survey of all the laws that attacked liberty by University College law students, which we published as he Abolition of Freedom Act. The same fear compelled David Davis MP to resign during the previous summer and campaign against 42-day pre-charge detention and the database state, a gesture that cost him politically but which was critical in the defence of liberty.
This vindication is almost as much fun as not listening to Jack Straw. The programme of measures listed in the agreement between the governing parties "to reverse the substantial erosion of liberties under the Labour government" proves for once and all that we weren't making it up. We are very fortunate that the election played out the way it did."

Very well said.  As I said a few days ago, the promises of the new regime on civil liberites are promising but it will be interesting to see the details.  As Henry Porter rightly says, the most agonising part of Nu Labour's systematic destruction of liberty was the sense that few people were really paying attention.  The reversal of the damage the previous government has done in this area is a massive undertaking but here's hoping they have political will and energy to carry it through even when Sir Humphrey advises "that's a brave decision minister."

Producing content like we develop software: Felten

Ed Felten thinks that writers might have a lot to learn from software developers. 

"There is something distinctive about how computer scientists write: we tend to use software development tools to "develop" our texts. This seems natural to us. A software program, after all, is just a big text, and the software developers are the authors of the text. If a tool is good for developing the large, complex, finicky text that is a program, why not use it for more traditional texts as well?
Like software developers, computer scientist writers tend to use version control systems. These are software tools that track and manage different versions of a text. What makes them valuable is not just the ability to "roll back" to old versions -- you can get that (albeit awkwardly) by keeping multiple copies of a file. The big win with version control tools is the level of control they give you. Who wrote this line? What did Joe write last Tuesday? Notify me every time section 4 changes. Undo the changes Fred made last Wednesday, but leave all subsequent changes in place. And so on. Version control systems are a much more powerful relative of the "track changes" and "review" features of standard word processors.
Another big advantage of advanced version control is that it enables parallel development, a style of operation in which multiple people can work on the text, separately, at the same time. Of course, it's easy to work in parallel. What's hard is to merge the parallel changes into a coherent final product --- which is a huge pain in the neck with traditional editing tools, but is easy and natural with a good version control system...

While version control and parallel development have become standard in computer science writing, there are other software development practices that are only starting to cross the line into CS writing: issue tracking and the release early and often strategy.
Issue tracking systems are used to keep track of problems, bugs, and other issues that need to be addressed in a text. As with version control, you can do this manually, or rely on a simple to-do list, but specialized tools are more powerful and give you better control and better visibility into the past...

"Release early and often" is a strategy for rapidly improving a text by making it available to users (or readers), getting feedback, and rapidly turning out a new version that addresses the feedback. Users' critiques become issues in the issue tracking system; authors modify the text to address the most urgent issues; and a new version is released as soon as the text stabilizes. The result is rapid improvement, aligned with the true desires of users. This approach requires the right attitude from users, who need to be willing to tolerate problems, in exchange for a promise that their critiques will be addressed promptly.
What does all of this mean for writers who are not computer scientists? I won't be so bold as to say that the future of writing will be just exactly like software development. But I do think that the tools and techniques of software development, which are already widely used by computer scientist writers, will diffuse into more common usage. It will be hard to retrofit them into today's large, well-established editing software, but as writing tools move into the cloud, I wouldn't be surprised to see them take on more of the attributes of today's software development tools."

Content producers, including my own wonderful employer, the Open University, should take note.

Astroturfing net neutrality

Cory Doctorow is fuming over telcos secret plans to kill net neurality.

"ThinkProgress has a leaked copy of a telcoms industry PowerPoint presentation laying out their plans to use astroturf to kill Network Neutrality. The industry is hiring the same turfers who work with the Tea Party movement to carry their message to the people.

What the telcos want to do is reduce your access to websites and services unless those services have paid a bribe for "premium carriage" to you. So Google buys its bandwidth from its ISP. You buy your bandwidth from your ISP. Then your ISP goes to Google and says, "If you want to send your bits to our customers when they ask for them, you'll have to pay us too." If Google doesn't pay, the ISP slows down its bits when you ask for them.

They call this "free and unregulated internet access for content flow and connectivity speed free and unregulated internet access for content flow and connectivity speed."

Here's how I see it: the telcos and cable operators got a huge public subsidy when we agreed to let them use our public sewers, tunnels and streets (not to mention our houses and basements) for their wires. We give them all this for free or far below the market costs. They put their wires in our dirt.

Now they're saying they don't want to give us the service we want. Literally. That's what fighting Net Neutrality is about: it's ISPs fighting for the right to slow down or discard the bits you, the customer, ask for.

I say, it's our dirt, so we make the rules. If they don't like those rules, let them get their goddamned wires out of our dirt, off our streets, out of our basements. Let's give them 60 days, and if they haven't pulled up their wires by then, we'll buy them for the scrappage price of the copper. Then we'll turn over those wires to companies that are willing to give us the bits we want in exchange for the billions (trillions?) worth of public subsidy these greedy corporate welfare bums are currently enjoying.

Nowhere in the Constitution does it say, "Congress shall give away the public's priceless assets to companies and then sit around sucking its collective thumb while the companies screw the public." If AT&T and Comcast don't want to give us the service we want, let them buy every inch of conduit and right-of-way at market prices. Until then, they can STFU and give us the network we demand."

Update: ThinkProgress on same.

Electronic voting insecure

After the shambles last week of many people being turned away from the polls we have the inevitable call for electronic and internet voting.  We know however that the electronic voting systems currently deployed are seriously insecure. Hari K. Prasad, J. Alex Halderman, Rop Gonggrijp have reinforced this with a study of India's evoting machines which they demonstrate are vulnerable to fraud.



From the team's press release:

"Says Gonggrijp: "Never mind what election officials say, this research once again shows that the longstanding scientific consensus holds true—DRE voting machines are fundamentally vulnerable. Such machines have already been abandoned in Ireland, the Netherlands, Germany, Florida and many other places. India should follow suit."
Gonggrijp continues: "In order to have any transparency in elections, you need to have votes on paper. Computers can be programmed to count votes honestly, but since nobody can watch them, they might just as easily be programmed to count dishonestly. How is the voter supposed to tell the difference?""

Alex Haldemann comments:

"I've studied electronic voting machines for years, but I've never had such a strong sense that actual fraud might be taking place. There have been dozens of reports from around India that politicians have been approached by engineers offering to manipulate the machines to steal votes. My Indian coauthor, Hari Prasad, was himself approached by a prominent party and asked to help them with such manipulations! It's just too easy, thanks to the simple design of the machines and the lack of adequate safeguards, and there are probably a million people in India with the necessary electronics skills.
Many people believe that using a simple design makes these machines safer than the complex machines used in the U.S. (which sometimes contain almost a million lines of code), but simple machines are much easier to attack via hardware, and simplifying too much means giving up standard security techniques like strong cryptography. Essentially, you're left with a system that depends entirely on the physical security of the machines, just like paper ballots depend on the security of the ballot box, but with much less transparency than paper voting. What India and other democracies need is a system that's both secure *and* transparent, so that voters can have well-founded confidence their votes count."

Ed Felten says:

"The independent Electoral Commission of India, which is generally well respected, has dealt poorly with previous questions about EVM security. The chair of the Electoral Commission has called the machines "infallible" and "perfect" and has rejected any suggestion that security improvements are even possible. I hope the new study will cause the EC to take a more realistic approach to EVM security.
The researchers got their hands on a real Indian EVM which they were able to examine and analyze. They were unable to extract the software running in the machine (because that would have required rendering the machine unusable for elections, which they had agreed not to do) so their analysis focused on the hardware. They were able to identify several attacks that manipulated the hardware, either by replacing components or by clamping something on to a chip on the motherboard to modify votes. They implemented demonstration attacks, actually building proof-of-concept substitute hardware and vote-manipulation devices.
Perhaps the most interesting aspect of India's EVMs is how simple they are. Simplicity is a virtue in security as in engineering generally, and researchers (including me) who have studied US voting machines have advocated simplifying their design. India's EVMs show that while simplicity is good, it's not enough. Unless there is some way to audit or verify the votes, even a simple system is subject to manipulation."

Update: Check out also ORG's briefing on why evoting systems are difficult to secure.

Irish High Court opens the way for European data retention challenge

Whilst I know many will be focussed on the UK general election results, I just wanted to draw your attention to an important piece of news on a decision by the Irish High Court enabling Digital Rights Ireland to challenge the whole notion of communications data retention in the European Court of Justice.  DRI have a terrific blog post on the decision which I hope they won't mind me quoting in full here:

"Great news today from the High Court where Mr. Justice McKechnie gave an extremely favourable decision on our constitutional challenge to data retention laws.
While the full judgment is 53 pages long, the gist is relatively simple.
Long story short: today’s decision has cleared the way for our challenge to proceed and to challenge the entire European legal basis for data retention.
(Following the wider European trend where Germany, Bulgaria and Romania have all found aspects of data retention to be unconstitutional.)
The longer version: Today’s decision dealt with three procedural issues which had to be cleared before we can argue the substance of the case: i.e. whether mass surveillance of this sort is compatible with constitutional guarantees of fundamental rights.
The first of these issues dealt with standing: could DRI (as a company, not a natural person) assert rights of privacy? And could it argue the rights of privacy of others? On this point the court held in our favour, accepting that DRI was a “sincere and serious litigant”, which raised these issues with bona fide interest and concern and ruling that it was appropriate for us to argue these points as this was a matter of “fundamental public importance”.
The second point dealt with an attempt by the State to stop the action in its tracks by seeking “security for costs” – i.e. requiring us to make a payment into court to cover the costs of the State should we lose the action. Because of the cost of High Court actions, requiring such a payment at the outset could effectively have prevented the case from being heard. Here the court rejected the State’s application, holding that:

the matters pleaded in this case do raise issues of significant public importance… Given the rapid advance of current technology it is of great importance to define the legitimate legal limits of modern surveillance techniques used by governments… without sufficient legal safeguards the potential for abuse and unwaranted invasion of privacy is obvious… That is not to say that this is the case here, but the potential is in my opinion so great that a greater scrutiny of the proposed legislation is certainly merited.”

Finally, the third point related to our application to refer this case to the European Court of Justice (“ECJ”). As data retention is now dealt with at a European level, it is important that we be able to challenge the European law in this area – something which can only be done before the ECJ in Luxembourg. Here the court again accepted our argument, holding that a reference to the ECJ was required and that it was appropriate that it be made at the current stage of the proceedings.
So what happens next? There will be some more legal argument next week about the precise questions which should be referred to the ECJ – after that, the case will be referred to the ECJ and will go into their system for a hearing in Luxembourg, which have implications for data retention across Europe."

A copy of the full judgment is below.
Data Retention Challenge: Judgment re Preliminary Reference, Standing, Security for Costs

European Copyright Code

Prof. Lionel Bently, Prof. Thomas Dreier, Prof. Reto Hilty, Prof. P. Bernt Hugenholtz, Prof. Antoon Quaedvlieg, Prof. Alain Strowel, Prof. Dirk Visser and other copyright scholars, working on the Wittem Project since 2002, have produced a European Copyright Code.

"The aim of the Wittem Project and this Code is to promote transparency and consistency in European copyright law. The members of the Wittem Group share a concern that the process of copyright law making at the European level lacks transparency and that the voice of academia all too often remains unheard. The Group believes that a European Copyright Code drafted by legal scholars might serve as a model or reference tool for future harmonization or unification of copyright at the European level. Nevertheless, the Group does not take a position on the desirability as such of introducing a unified European legal framework. The Code was drafted by a Drafting Committee composed of seven members. Each chapter of the Code was originally drafted by one or two members of the Drafting Committee, acting as rapporteurs. The rapporteurs for each chapter were: Prof. Quaedvlieg (Chapter 1: Works), Prof. Hugenholtz (Chapter 2: Authorship and ownership), Prof. Strowel (Chapter 3: Moral rights), Prof. Visser (Chapter 4: Economic rights) and Professors Dreier and Hilty (Chapter 5: Limitations).
Each draft Chapter, accompanied by an explanatory memorandum, was discussed in a plenary session with the members of the Wittem Advisory Board and other experts that were invited ad hoc. The proceedings of these plenary sessions were fed into the second versions of each chapter, and thereafter redacted and integrated into a final consolidated version by the Drafting Committee. Although discussions with the Advisory Board and experts have greatly influenced the final product, responsibility for the Code lies solely with the Drafting Committee.
While drafted in the form of a legislative instrument and thereby exceeding the level of detail normally associated with common principles of law, this Code is not comprehensive. It concentrates on the main elements of any codification of copyright: subject matter of copyright (Chapter 1), authorship and ownership (Chapter 2), moral rights (Chapter 3), economic rights (Chapter 4) and limitations (Chapter 5). The Code does not, for instance, treat such remuneration rights as public lending right and droit de suite, nor does it deal with the legal protection of technical measures. Also, the Code does not contain rules on copyright liability or enforcement, nor does it touch upon neighbouring (related) rights and database right.
This Code is not a recodification of EU copyright law tabula rasa. Since European copyright law must operate within the confines of the international commitments of the European Union and its Member States, the Code takes account of the substantive norms of the Berne Convention and the TRIPs Agreement. Also, the members of the Group have found it hard to ignore the aqcuis communautaire in the form of seven Directives that the European legislature has produced in this field since 1991. However, the Code does on occasion deviate from the acquis, and therefore cannot be considered a mere restatement or consolidation of the norms of the directives.
The members of the Wittem Group hope that this European Copyright Code will contribute to the establishment of a body of transparent and consistent copyright law that protects the moral and economic interests of creators, while serving the public interest by promoting the production and dissemination of works in the field of literature, art and science."

The code itself is available in html or pdf.

Cleanternet

Sharp satire on EU Commissioner for Home Affairs Cecilia Malmström's plans to introduce web filtering in Europe:

UK jails schizophrenic for refusal to decrypt files

From 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...

In September 2001, shortly after his stint as Home Secretary, when he had introduced RIPA, Jack Straw took to the airwaves to defend the powers.
"It was government trying to put in place increased powers so that we could preserve and sustain our democracy against this new kind of threat," he said in a Radio 4 interview.
"We needed to take powers so that we could de-encrypt commercially encrypted e-mails and other communications. Why? Because we knew that terrorists were going to use this."
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."

Conservative perspective on Digital Economy Act

Being one of the lucky few who live in a marginal constituency I decided to write to David Cameron before the passing of the Digital Economy Act to indicate my concerns and explain I would not support any party in the general election who facilitated the (then) bill going through the wash up process before parliament was dissolved.  I received the following response from James Bull in David Cameron's office yesterday.

"Thank you for contacting us about the Digital Economy Bill. We take what you say on board, and I am happy to respond to your concerns. 

Britain has been made to wait too long for legislation updating the regulatory environment for the digital and creative industries.  We regret that once the Government got around to considering these issues, it did not allocate the sufficient time in the House of Commons for proper legislative scrutiny.  It says a great deal about their support for the creative industries that despite considering many of these issues as far back as 2006 they have only now just brought this piece of legislation forward.

We took the decision to seek to remove those clauses of the Digital Economy Bill that we did not support or that we did not feel received proper legislative scrutiny, while supporting the Bill as a whole. Rejecting the Bill would have been an unacceptable set-back for the important measures it contains.

We support the Bill’s efforts to tackle online copyright infringement. This is an extremely serious issue that costs the creative industries hundreds of millions of pounds each year. We want to make sure that Britain has the most favourable intellectual property framework in the world for innovators, digital content creators and high tech businesses.  Internet piracy also puts consumers at risk, as those who download illegal material increase the likelihood of their machines being attacked by computer viruses, and are exposed to unverified advertising and inappropriate material. 

The measures in the Bill aimed at tackling online copyright infringement received robust scrutiny in the House of Lords. We were concerned about the lack of parliamentary oversight of the original clauses and as such the Bill now has a super-affirmative resolution in it. This means Parliament will debate any order that the Secretary of State lays that would allow people to be disconnected. These measures can also not be introduced for 12 months after the Bill becomes law. This means that we are by no means rushing in to these decisions and that the next Parliament will be able to consider them beforehand.

The measures in the Bill designed to tackle illegal peer to peer file sharing set up a proportionate regime that would lead to people having their internet connection temporarily suspended, but only following public consultation, repeated warnings and due process. It will not, as many have suggested, lead to people being disconnected without an appeal. Even if people are disconnected they will be able to sign up to another ISP immediately without penalty.

While we have no doubt that these measures could have been improved if the Government had allocated time for this Bill to be debated in Committee, blocking these measures in their entirety would have risked hundreds of thousands of jobs in the TV, film, music and sports industries and was therefore not something we were not willing to do.

Conservatives recognise the need to establish a workable system for unlocking the wealth of inaccessible content known as orphan works, but we have consistently stated that in no way should this Bill actually harm content creators.  We were keen to address the problem of people stripping out identifying information from a digital image and wanted to clamp down on this and ensure that the Bill does not encourage such activities. We also wanted specific requirements for a search for the rights holder and a system in place if that rights holder comes forward at a later date. After Government failed to amend the Bill in line with these protections, we insisted that clause 43 be removed from the Bill.

The debate on copyright is not yet over and we will seek to revisit options for a balanced solution as part of a broader update of copyright following the General Election.

Thank you, once again, for getting in touch. I hope my reply was useful.

Yours sincerely,

James

James Bull

Office of David Cameron"

My reply is below (with 3 typographical errors tidied up).

"Dear James,

Thanks for your response on behalf of David Cameron. I suspect the key things we can agree on are that the regulatory environment for the technology, information and creative industries is not in very good shape and that the debate on copyright is likely to continue.

I don’t agree with your belief that the disconnection of households due to suspected copyright infringement is a proportionate regime. Neither do I accept that the post disconnection appeals process in the Act constitutes due process under UK law.  In addition to countless legal scholars, no less an authority than the European Court of Justice has indicated in dicta (Promusicae case, 2008) that they would likely strike down the kind of disconnection process the Act facilitates. 

I wonder what David Cameron’s illustrious predecessor, Winston Churchill, would have made of the notion of restricting a household’s access to communications, education, employment, livelihood, public services and yes even entertainment, on suspicion that someone associated with that household was suspected of copyright infringement?

You make no mention of the web blocking measures in the Act so I make no assumptions about your perspective of those but I would say, as a matter of principle passing a law in the assumption that the details can be worked out later is not a good idea.  Neither is passing a law which includes damaging provisions because of a desire to get the rest of that bill through. That may be the reality of modern political life but it is not good policymaking practice.

Internet piracy does indeed put consumers at risk and we have run a course at the Open University for several years outlining the nature of this kind of cyber vandalism and crime and what people can do to protect themselves from it.  Mass copyright infringement also has an impact on the creative industries which you state is in the region of hundreds of millions of pounds each year.  In reality we have very little robust empirical economic data to quantify the problem and desperately need more scholarly research in this area to inform policymaking and construct a balanced regulatory environment which will take into account the needs of

• Creators
• Economic agents (technology, information and creative industries etc.)
• Consumers/citizens

Once we have the economic evidence and can do an informed cost benefit analysis of the impact of alternative regulatory regimes on the key sets of stakeholders, then reasonable people may still disagree about where the balance might lie. But at least we can then debate the issues in an informed way rather than on the basis of unsubstantiated claims about the damage to the respective stakeholders.

Thanks again for taking the time to respond. Mr Cameron’s support of the controversial provisions of the Digital Economy Act means I will no longer be considering voting for the Conservative Party in this coming general election.  Given that your party, however, is likely to be in government following the election, I would encourage you and your colleagues to understand that in an information society, the information laws, intellectual property prime amongst them, are the default rules of the road.  Our society and our economy cannot afford the kind of slapdash process that has characterised the passage of the Digital Economy Act and the damaged regulatory structures that emerge from it.

I hope you won’t mind if I make a copy of this correspondence available on my blog, http://b2fxxx.blogspot.com/.

Regards,

Ray"

US government report: counterfeiting, illegal copying difficult to quantify

The U.S. Government Accountability Office (GAO), "the investigative arm of Congress"has released a report, Intellectual Property: Observations on Efforts to Quantify the Economic Effects of Counterfeit and Pirated Goods, saying we don't have decent empirical evidence to quantify the effect of counterfeiting and piracy.

"According to experts and literature GAO reviewed, counterfeiting and piracy have produced a wide range of effects on consumers, industry, government, and the economy as a whole, depending on the type of infringements involved and other factors. Consumers are particularly likely to experience negative effects when they purchase counterfeit products they believe are genuine, such as pharmaceuticals. Negative effects on U.S. industry may include lost sales, lost brand value, and reduced incentives to innovate; however, industry effects vary widely among sectors and companies. The U.S. government may lose tax revenue, incur IP enforcement expenses, and face risks of counterfeits entering supply chains with national security or civilian safety implications. The U.S. economy as a whole may grow more slowly because of reduced innovation and loss of trade revenue. Some experts and literature also identified some potential positive effects of counterfeiting and piracy. Some consumers may knowingly purchase counterfeits that are less expensive than the genuine goods and experience positive effects (consumer surplus), although the longer-term impact is unclear due to reduced incentives for research and development, among other factors.
Three widely cited U.S. government estimates of economic losses resulting from counterfeiting cannot be substantiated due to the absence of underlying studies. Generally, the illicit nature of counterfeiting and piracy makes estimating the economic impact of IP infringements extremely difficult, so assumptions must be used to offset the lack of data. Efforts to estimate losses involve assumptions such as the rate at which consumers would substitute counterfeit for legitimate products, which can have enormous impacts on the resulting estimates. Because of the significant differences in types of counterfeited and pirated goods and industries involved, no single method can be used to develop estimates. Each method has limitations, and most experts observed that it is difficult, if not impossible, to quantify the economy-wide impacts. Nonetheless, research in specific industries suggest that the problem is sizeable, which is of particular concern as many U.S. industries are leaders in the creation of intellectual property...

Quantifying the economic impact of counterfeit and pirated goods on the U.S. economy is challenging primarily because of the lack of available data on the extent and value of counterfeit trade. Counterfeiting and piracy are illicit activities, which makes data on them inherently difficult to obtain. In discussing their own effort to develop a global estimate on the scale of counterfeit trade, OECD officials told us that obtaining reliable data is the most important and difficult part of any attempt to quantify the economic impact of counterfeiting and piracy. OECD’s 2008 report, The Economic Impact of Counterfeiting and Piracy, further states that available information on the scope and magnitude of counterfeiting and piracy provides only a crude indication of how widespread they may be, and that neither governments nor industry were able to provide solid assessments of their respective situations. The report stated that one of the key problems is that data have not been systematically collected or evaluated and, in many cases, assessments “rely excessively on fragmentary and anecdotal information; where data are lacking, unsubstantiated opinions are often treated as facts.”...

Because of the lack of data on illicit trade, methods for calculating estimates of economic losses must involve certain assumptions, and the resulting economic loss estimates are highly sensitive to the assumptions used. Two experts told us that the selection and weighting of these assumptions and variables are critical to the results of counterfeit estimates, and the assumptions should, therefore, be identified and evaluated. Transparency in how these estimates are developed is essential for assessing the usefulness of an estimate. Two key assumptions that typically are required in calculating a loss estimate from counterfeit goods include the substitution rate used by consumers and the value of counterfeit goods...

Three commonly cited estimates of U.S. industry losses due to counterfeiting have been sourced to U.S. agencies, but cannot be substantiated or traced back to an underlying data source or methodology. First, a number of industry, media, and government publications have cited an FBI estimate that U.S. businesses lose $200-$250 billion to counterfeiting on an annual basis. This estimate was contained in a 2002 FBI press release, but FBI officials told us that it has no record of source data or methodology for generating the estimate and that it cannot be corroborated. Second, a 2002 CBP press release contained an estimate that U.S. businesses and industries lose $200 billion a year in revenue and 750,000 jobs due to counterfeits of merchandise. However, a CBP official stated that these figures are of uncertain origin, have been discredited, and are no longer used by CBP. A March 2009 CBP internal memo was circulated to inform staff not to use the figures. However, another entity within DHS continues to use them. Third, the Motor and Equipment Manufacturers Association reported an estimate that the U.S. automotive parts industry has lost $3 billion in sales due to counterfeit goods and attributed the figure to the Federal Trade Commission (FTC). The OECD has also referenced this estimate in its report on counterfeiting and piracy, citing the association report that is sourced to the FTC. However, when we contacted FTC officials to substantiate the estimate, they were unable to locate any record or source of this estimate within its reports or archives, and officials could not recall the agency ever developing or using this estimate. These estimates attributed to FBI, CBP, and FTC continue to be referenced by various industry and government sources as evidence of the significance of the counterfeiting and piracy problem to the U.S. economy.

There is no single methodology to collect and analyze data that can be applied across industries to estimate the effects of counterfeiting and piracy on the U.S. economy or industry sectors... Nonetheless, the studies and experts we spoke with suggested that counterfeiting and piracy is a sizeable problem, which affects consumer behavior and firms’ incentives to innovate...

While experts and literature we reviewed provided different examples of effects on the U.S. economy, most observed that despite significant efforts, it is difficult, if not impossible, to quantify the net effect of counterfeiting and piracy on the economy as a whole."

Very interesting, very readable report.  Recommended and probably essential reading for IP geeks. Kudos due to Loren Yager, Director of International Affairs and Trade at the GAO.

Virtual Revolution wins Digital Emmy

I've just learned from one of our dedicated internal marketeers, who was checking on the academic advisors involved, that the Open University & BBC's co-produced series, The Virtual Revolution, has won a Digital Emmy Award for non fiction.  There are lots of self congratulatory pats on the backs all round for the team that put the series together.

Does the DEA have ISP get-out clauses?

AAISP has an interesting analysis of the Digital Economy Act which suggests that the politicians and music industry lobbyists, currently walking around with smug grins about the passage of the Act through the parliamentary wash up process, will soon be complaining that ISPs are using 'legal technicalities' to "avoid their obligations" under the act.

"Whilst the Act covers some other aspects such as Channel 4 television and some of the role of OFCOM, the relevant bits to us are the way it affects ISPs. The reasons for the Act in the first place are very questionable and are driven by the music and media industries. They are apparently claiming that they are losing millions to illegal file sharing and copying of their copyright material. They have apparently insisted something must be done and there is plenty of speculation about political party donations that may have driven the governments rail road approach to pushing this Act through. Just to prove a point, the BPI's own web site reports record sales of singles in 2009 so clearly file-sharing is not damaging the industry that much.

The first problem is that the music industry is not losing millions. It is simply not logical. Yes, if many of the people downloading and sharing music paid for it then they would make millions, but that is clearly not going to happen. There are simply not millions lying around to give to the music industry. Even if there was, it simply means some other industry suddenly and unexpectedly loses out to the tune of millions and lots of jobs are lost - maybe in the fast food industry or clothing, or other entertainment industries. The Act can only serve to either stop people downloading music (rather than paying more) and possibly buy even less music as a result (because they are no longer in to music as much), or it will drive the file sharing to anonymous encrypted communications (already in use) which cannot be stopped. Before the Act the Copyright, Designs & Patents Act allows them to take civil cases against people. If the file sharing is driven underground they will not be able to trace people to do that, even.
One of the other problems is that this supposedly illegal file sharing is, for the most part, a simple civil wrong (possibly unlawful is a better phrase). There are existing processes to take civil actions for damages via the county courts. If these processes are not fit for purpose they need improving. The music industry is not special in this respect. There is no way the music industry should have received special powers and not everyone else that also finds the civil action process time consuming and costly...

16 Interpretation and consquential provision

This is basically all of the definitions and leads to come interesting loopholes.

• The copyright owner can appoint an agent - fair enough. What is not clear is how an ISP knows the report they get is in fact from or on behalf of the real copyright holder.
• An internet access service is one that is provided to a subscriber - so if our customers are somehow not a subscriber then its not an internet access service they get.
• An internet access service includes allocation of IP address or addresses. So if we do not allocate addresses then it is not an internet access service. On top of this we have the fact that allocated is in fact a specific term in connection with IPs. IP addresses are allocated to a local internet registry, and then assigned to end users (not allocated). So using the definition in the industry none of our services are an internet access service anyway.
• An internet service provider is someone that provides internet access service, so if either of the above apply to all of our connections then we are not an internet service provider and most of the Act does not apply to us.
• A subscriber has to have an agreement with the provider of the service. So it is the person with the agreement that is the subscriber. If that agreement changes to someone else, the original person is no longer a subscriber even if they use the service."

So if ISPs do not provide internet access services and customers are not subscribers then they are potentially both off the hook and the music industry has to go crying to government again about identifying "thieves" and "suspending" their internet access.  Hee hee.  Even if a judge did buy that argument, and even though one ISP has declared an intention to fight the DEA in court it is by no means a certain winner, it would likely only be a temporary victory.  Such a decision would rapidly induce further lobbying and the subsequent inevitable tweaks to the law to close the loopholes.  Mind you, what are the odds on a minister understanding the difference between assigning and allocating an IP address when he doesn't even know what an IP address is?

The web blocking provisions define 'service provider' differently, as any person providing an infromation society service.  This time the ISP, as a 'sevice provider', is on the hook, being required to block access to a "location" (website, webpage, newgroup, p2p services, warehouse, country?) from which a substantial amount of material has been, is being, or is likely to be obtained by, or made available in infringement of copyright. They also have to block any location that 'facilitates access to' such a location. So if you link or are suspected of linking expect to have your site blocked.  The trouble is that the meaning of 'location' is unclear as it doesn't seem to be defined anywhere.  And how many levels of separation are we talking about in relation to links here?  Is a link to a site that links to the suspected dodgy site a 'facilitation of access to'?  How about a link to a link to a site that links to the suspect 'location'?  And where does this leave search engines and libraries whose business is access to information?

I haven't had enough time on the detail of the final text to make a decent guess but it seems that the dangerous downloaders act is going to come back to bite its supporters and detractors.  It really is important to subject these things to proper scrutiny even if only to make sure your 'service providers' responsible for throwing suspect 'subscribers' off the Net are indeed the ISPs who assign IP addresses to their customers.

UK Elections Neither Free Nor Fair

Craig Murray, the UK's former Ambassador to Uzbekistan (withdrawn in 2004 after exposing appalling human rights abuses in that country), believes that the UK electoral process doesn't stack up too well against that of the average banana republic. It's a damning analysis.

"Against international standards, British elections leave a great deal to be desired. The first crucial failing is the lack of an independent administration of the elections. In each constituency, the election is not run by the Electoral Commission, but by the local authority. The national Electoral Commission has only an advisory role and cannot even monitor or instruct local returning officers. The returning officer is almost always the chief executive officer of the local authority.
The problem is that, de facto, those chief executives are party-political appointments. Particularly in the long-term New Labour rotten boroughs of the north, local government appointments are a New Labour nexus... Reciprocal agreements between New Labour councils to provide full-time party staff – at the council taxpayer's expense – are not uncommon...

The polling booth is the vital question here. Those bits of board that prevent anyone from seeing how you vote, are an essential element of the secret ballot. New Labour has, in effect, deliberately removed it. Any vote made at home is a vote that may be filled in under the coercive eye of an individual able to enter your home and intimidate you – something nobody can do in the polling booth...

The regulations have been designed specifically to prevent the exposure of postal ballot fraud. By law, the postal ballots have to be mixed undetectably with the polling booth ballots before they are counted. Therefore, there is no way to prove if, as I suspect happened in Blackburn, a candidate received 25% of secret ballots but 80% of postal ballots...

But there is a still more fundamental point, which raises doubts about the democratic validity of Britain's elections – and that is the question of whether a real choice is being presented to the voters.
International electoral monitoring bodies pay a great deal of attention to this. For example, in December's parliamentary elections in Uzbekistan, it was the lack of real choice between five official parties, all supporting President Karimov's programme, on which the OSCE focused its criticism...

A traditional feature of British elections is the electoral communication, under which each candidate can send out a copy of their electoral address, delivered to every voter free by Royal Mail. Under another bit of Kafka-esque New Labour legislation, the Royal Mail now vets the content of every electoral address. The text must be seen and approved by a central Post Office unit before the leaflet can be printed and prepared for delivery...

Now, we come to the most fundamentally undemocratic aspect of British elections: the electoral system. It delivers massively disproportionate results with minority parties virtually unrepresented in parliament. At the last election, it delivered a good majority to an unpopular Tony Blair, even though New Labour received only 36% of votes cast – which represented just 22% of those entitled to vote.
But it does not favour the big parties evenly. New Labour can get a working majority with 34% of votes cast, while the Tories need 39%. If New Labour and the Tories both got 36%, New Labour would probably have almost 50 more seats. The Lib Dems could get 34%, yet win under half the seats that New Labour would get with the same percentage."

Craig Murray was unhappy with the Guardian's treatment of his article and I hope he won't mind me reproducing a large chunk of it here.  Most of what he writes about has been common knowledge amongst electoral system geeks for some time but he does summarise some of the key issues quite succinctly and the whole article is definitely worth a read.  However, I must admit that the process of the Royal Mail becoming the official censors of election leaflets had completley passed me by. How the heck did I miss that one and was it just me or did it bypass the usual anti-liberty regulation detection networks too?

We need a Jefferson's Moose for the Digital Economy Bill

This is a nice example of the kind of remixing that the people pushing the digital economy bill would like to control:



I'm not sure that even seeing this would get the message through, Jefferson's-Moose-like, to the politicians.  Any suggestions on what would have an equivalent impact to seeing a 7-foot Moose in the hall gratefully received.

Open University Academics Open Letter on BBC DRM Proposals

A group of 50 Open University academics have sent an open letter to the Ofcom on the BBC's HD DRM proposals. I include the text in full below.

An Open Letter to Ofcom on the BBC HD DRM proposal

As a group of academics who teach and conduct research at the Open University, which since its inception has used broadcast and multimedia technologies  in education, we are writing to express our objections to the proposal to allow the BBC to add a Digital Rights Management (DRM) flag to its high definition (HD) output.
We believe that the proposal is misleading in claiming that it will not involve signal encryption.  We further believe that the proposal has significant disadvantages for

• licence payers
• the disabled
• UK industry
• innovation
• education

BBC Charter Obligations
Licensing and regulation of the radio frequency spectrum exists to ensure that a monopoly on a certain part of the spectrum serves the public good. Article 3 of the BBC Charter states that the "BBC exists to serve the public interest."  Article 4 further explains
The Public Purposes of the BBC are as follows—

(a) sustaining citizenship and civil society;

(b) promoting education and learning;

(c) stimulating creativity and cultural excellence;

(d) representing the UK, its nations, regions and communities;

(e) bringing the UK to the world and the world to the UK;

(f) in promoting its other purposes, helping to deliver to the public the benefit of emerging communications technologies and services and, in addition, taking a leading role in the switchover to digital television.

No part of that public purpose encompasses enabling the BBC to encrypt free to air audio and video broadcast signals and no matter what terminology is used to make it appear that the DRM flag is not encryption, the plain technical truth is that it is.
The BBC scheme involves not the scrambling of the audio and video signals themselves but of the accompanying digital instructions for decoding these signals.  The 'free' broadcast signal will now merely come locked behind a DRM shield that people will need specially licensed equipment to view. The BBC proposal would undermine its public service obligations under the Charter, and we find it difficult to reconcile Ofcom's repeated declarations that a broadcast flag DRM regime would be inappropriate for the BBC with the current consultation shaped around the notion that  the proposed DRM technology is a good idea.

Disadvantages for Disabled
To make matters worse, that specific data the BBC proposes to scramble includes subtitles and data used in specialist TV equipment which is needed by those who are visually- and hearing-impaired to enjoy broadcasts.  So an audience that is already disadvantaged in terms of access to 'free to air' broadcasting would become further disadvantaged, as the barriers to the market supplying specially adapted devices with assistive features become ever higher.

Does Not Work Anyway and Undermines Backwards Compatibility
More than a decade's worth of painful experience for industry and the consumer has demonstrated that DRM digital locks do not actually prevent copying and come with significant costs.  After creating ranges of incompatible devices that consumers could not use interchangeably, most of the major online music suppliers have removed DRM from their stores. Every DRM regime thus far invented has been broken within days and the details placed in the public domain. The people inconvenienced by DRM are frequently those who legitimately purchase the product and find, due to software updates or online music retailers ceasing to trade, that they can no longer access their legitimately-purchased electronic music and video collections, or that they are difficult or awkward to use.

The Communications Act 2003, Part 1, section 3, outlines the General duties of OFCOM:

(1) It shall be the principal duty of OFCOM, in carrying out their functions—
     (a) to further the interests of citizens in relation to communications matters; and
     (b) to further the interests of consumers in relevant markets, where appropriate by promoting competition.

The backward compatibility problems created by DRM, e.g. where older equipment will no longer work or communicate with new devices, can form no part of Ofcom's remit to further the interests of citizens in relation to communications matters or to facilitate a consumer friendly evolution of the consumer electronics market. The DRM proposed could result in those who have already invested in a modern HD TV and PVR being required to purchase a new approved decoder to view programmes and a new approved PVR  in order to record programmes. Even then it seems that the new PVR will only be permitted to record programmes received through its own "integrated" receiver, not from the signal receiver in the TV.
In the case of the BBC DRM proposal, ordinary TV license fee payers will be prevented from accessing BBC HD broadcasts unless they use equipment approved by an offshore licensing consortium and agree to a draconian set of restrictions on their use of that equipment. This includes a ban on adjusting it in such a way as to improve its operation, even to facilitate backward compatibility with older equipment.

An Empty Threat
The BBC implies that without some form of  DRM scheme (which the BBC itself admits are not difficult to break), HD producers will refuse to use the BBC as an outlet for their offerings.  This is a demonstrably empty threat for at least two reasons:

1. The BBC is too big a player in too important a market for independent commercial producers to refuse to do business with it.
2. The identical threat was made in the US in 2003 by TV and movie studios through the Federal Communications Commission (US equivalent to Ofcom). The proposal was thrown out by the D.C. Circuit Court of Appeals in 2005. Five years on, despite similar threats to migrate high definition programmes away from TV if they did not get their broadcast flag, the entertainment companies and sports franchises in the US continue to broadcast their productions DRM-free.  A rather compelling fiduciary obligation to maximize return to shareholders meant they had to continue production and broadcasting even without DRM.

The BBC management in its recent "BBC Strategy Review" document, under the heading "Setting New Boundaries" on page 5, proposes:

"Reducing spending on imported programmes and films by 20%, capping it thereafter at no more than 2.5p in every licence fee pound"

Even if we accepted that DRM prevented copying - which we categorically do not - acceding to the demands of the BBC's commercial partners to encrypt the HD digital signal in order to "protect" their productions, when purchases from the third party rights holders in question will not amount to more than 2.5% of BBC non-commercial revenues. Accordingly we regard the measures under consideration to be seriously disproportionate.

Barriers to Education
As educators at an institution committed to open access to and widening participation in higher education, we are particularly disappointed. The Open University has spent 40 years breaking down barriers to university study in partnership with the BBC. We now see a respected national institution proposing a restrictive scheme, which will only make it more difficult for us to engage the wider public in high quality supported open learning.

Anti-Competitive/Conflict of Interest
Finally, we fail to see how the notion of the BBC and its commercial production partners, through an offshore corporate consortium, the Digital Transmission Licensing Agreement (DTLA), dictating, restricting and controlling the design, development and operation of broadcast signal receiving equipment, can be reconciled with the public service remit of the BBC. Restricting who can manufacture the equipment required to decode a public broadcast TV signal is anti-competitive (and therefore probably contrary to European law) and can only serve to push up the cost to the consumer and stifle creativity and innovation.
In summary, the BBC HD DRM proposal is contrary to the public interest, will not prevent copyright infringement, will incur significant costs for consumers and industry, lacks proportionality and will not provide any noticeable additional incentive for the production of HD materials.  We therefore believe it is Ofcom's duty to categorically reject this proposal and we wish, in addition, to fully endorse the Open Rights Group's detailed position on the matter available at: http://www.openrightsgroup.org/ourwork/reports/bbc-drm-sub

Disclaimer: The views expressed  are those of the undersigned and do not necessarily reflect those of the Open University.

The full list of signatories should hopefully be available from Ofcom in due course.  In the meantime the list and the letter is available online.

Myriad gene patents held to be invalid in US court

This is a very big deal in patent, pharmaceutical and medical research circles and I hope James Love and KEI won't mind me quoting them in full on the decision in in Association for Molecular Pathology, et al. v. USPTO, et al.

"
In today's court ruling in Association for Molecular Pathology, et al. v. USPTO, et al., Judge Robert Sweet rejected claims by Myriad that invaliding the patents would be an unconstitutional taking, or violate the WTO TRIPS Agreement. In discussing the TRIPS, Judge Sweet mentioned Article 8.1 and 27.3 of the TRIPS.

Finally, Myriad's suggestion that invalidating the patents-in-suit would constitute an unconstitutional taking in violation of the Fifth Amendment of the Constitution or a violation of the United States' obligations under the Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPS") is unpersuasive. Myriad's novel taking argument runs counter to a long history of invalidation of patent claims by the courts and is unsupported by legal precedent. Similarly, Articles 8.1 and 27.3 of TRIPS permit governments to incorporate public health concerns into their intellectual property law and to exclude from patentability diagnostic, therapeutic, or surgical methods as well as particular inventions on the grounds of public interest. As a result, invalidation of the patents-in-suit would constitution neither a constitutional violation nor a conflict with the Untied States' treaty obligations. Pages 106-107

These are the two sections of the TRIPS that Judge Sweet cites.

Article 8
Principles 1. Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement.

Article 27
Patentable Subject Matter 3. Members may also exclude from patentability:
(a) diagnostic, therapeutic and surgical methods for the treatment of humans or animals;
(b) plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. The provisions of this subparagraph shall be reviewed four years after the date of entry into force of the WTO Agreement.

The Public Patent Foundation played a very important role in this litigation. Their press release is here.
The ACLU page on the decision is here.
The Myriad release says: Federal District Court Rules Isolated DNA Claims are Not Patentable, Myriad to Appeal Decision to the Federal Circuit Court of Appeals.
The New York Times reports here.
John Conley and Dan Vorhaus has this report in the Genomics Law Report: Pigs Fly: Federal Court Invalidates Myriad’s Patent Claims
Duke's Institute for Genome Sciences & Policy issued this statement by Robert Cook-Deegan:

“This is the first time a judge has ruled on gene patents in a conflict about diagnosis,” says Robert Cook-Deegan, the director of the Center for Genome Ethics, Law & Policy at Duke's Institute for Genome Sciences and Policy. “This completely changes the game, at least for now. Judge Sweet reached a decision the opposite of prior cases. One big difference is that this case is about diagnostics, getting information about DNA in a person’s cells, and not about using DNA to make drugs.”

In 2006 Anja von der Ropp of WIPO and Tony Taubman, now head of intellectual property for the WTO wrote the: Bioethics and Patent Law: The Case of Myriad, for the WIPO Magazine.
Also of interest is the related story of the Federal Circuit court busting the NF-kB gene patent: Federal Circuit Invalidates Harvard and MIT's Patent For NF-kB Gene Expression"

Newzbin escapes injunction in the UK High Court

The High Court in the UK has decided against granting an injunction applied for by Hollywood Studios against a Usenet group, Newzbin. Whilst not being convinced the Newzbin operators were entirely innocent in relation to inducing copyright infringement the Mr Justice Kitchin decided that the injunction sought was too broad.

"133. The claimants contend that the defendant is a relevant service provider and that it has actual knowledge that its premium members are infringing the claimants' copyrights and, indeed, the copyrights of other rights holders in the content made available on Newzbin . Accordingly they invite me to grant an injunction to restrain the defendant from including in its indices or databases entries identifying any material posted to or distributed through any Usenet group in infringement of copyright.

134. The defendant accepts that it is a relevant service provider but disputes that it has actual knowledge of any person using its service to infringe because it has never been served with a notice of the kind referred to in section 97A(2).

135. I do not accept that service of such a notice is a precondition of a finding that a service provider has actual knowledge of another person using its service to infringe copyright. Such is evident from the section which says that this is simply one of the matters to which the court must have regard. Nevertheless, I do not believe it would be appropriate to grant an injunction of the breadth sought by the claimants for a number of reasons. First, it is apparent from the terms of Directive 2001/29/EC that it is contemplating the grant of an injunction upon the application of rights holders, yet the claimants are seeking an injunction to restrain activities in relation to all binary and all text materials in respect of which they own no rights and about which I have heard little or no evidence. Second, I do not accept that the defendant has actual knowledge of other persons using its service to infringe all such rights. Therefore I am not persuaded I have the jurisdiction to grant such an injunction in any event. Third, the rights of all other rights holders are wholly undefined and consequently the scope of the injunction would be very uncertain. In my judgment the scope of any injunction under section 97A(2) should extend no further than that to which I have already concluded the claimants are entitled, namely an injunction to restrain the defendant from infringing the claimants' copyrights in relation to their repertoire of films."

Under the provisions of the Digital Economy Bill currently likely to go through parliament in the wash up of legislation before the general election, (presumably with the BPI's approval) it is a fairly  good bet that Newzbin would have been Internet history without reference to a judge.  Given the judge is very clear he doesn't buy the operators' complete innocence it wouldn't be a sensible business decision for an ISP to attempt to defend them in court.  Some might think that a good thing.  I don't know enough about Newzbin to assess whether they induced infringement or engaged directly therein but under the digital economy bill as it stands we won't really get the chance to test the question in the courts, even when the accused is demonstably innocent.

Updated due to strange formatting problems, 31/3.