Monday, June 13, 2016

EU consultation on role of publishers in copyright value chain

My response to the latest EU copyright consultation below. These answers to the questions posed are an abridged version of an earlier attempt I made to submit a longish response through the Limesurvey site. Upon filling out the survey form and clicking the submit button there I got a "Bad Request The CSRF token could not be verified" error.

The submission was not recoverable.

So I'd recommend anyone considering responding before Wednesday's deadline do so via the official EC consultation site.

I would, nevertheless, recommend the #FixCopyright videos of Francois Grimonprez and Matt Lees and some of the suggestions made about responding to the consultation at the limesurvey site, especially if you're not particularly well acquainted with the intricacies of copyright policy. Don't take the limesurvey answers as accepted dogma - do apply your own critical faculties to any response.

Date: 13/06/2016 15:55:16


Public consultation on the role of publishers in the copyright value chain and on the 'panorama exception'
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General information about you
The views expressed in this public consultation document may not be interpreted as stating an official position of the European Commission.  All definitions provided in this document are strictly for the purposes of this public consultation and are without prejudice to differing definitions the Commission may use under current or future EU law, including any revision of the definitions by the Commission concerning the same subject matters.

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Corrigan
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(Please note that regardless the option chosen, your contribution may be subject to a request for access to documents under Regulation 1049/2001 on public access to European Parliament, Council and Commission documents. In this case the request will be assessed against the conditions set out in the Regulation and in accordance with applicable data protection rules.)
*Please indicate your country of residence
United Kingdom
The role of publishers in the copyright value chain
In its Communication Towards a modern, more European copyright framework of 9 December 2015, the Commission has set the objective of achieving a well-functioning market place for copyright, which implies, in particular, "the possibility for right holders to license and be paid for the use of their content, including content distributed online."[1]
Further to the Communication and the related stakeholders' reactions, the Commission wants to gather views as to whether publishers of newspapers, magazines, books and scientific journals are facing problems in the digital environment as a result of the current copyright legal framework with regard notably to their ability to licence and be paid for online uses of their content. This subject was not specifically covered by other public consultations on copyright issues the Commission has carried out over the last years. In particular the Commission wants to consult all stakeholders as regards the impact that a possible change in EU law to grant publishers a new neighbouring right would have on them, on the whole publishing value chain, on consumers/citizens and creative industries. The Commission invites all stakeholders to back up their replies, whenever possible, with market data and other economic evidence. It also wants to gather views as to whether the need (or not) for intervention is different in the press publishing sector as compared to the book/scientific publishing sectors. In doing so, the Commission will ensure the coherence of any possible intervention with other EU policies and in particular its policy on open access to scientific publications.[3]
*Selection
Do you wish to respond to the questionnaire "The role of publishers in the copyright value chain"?
Yes (Please allow for a few moments while questions are loaded below)
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[1]   COM(2015)626 final.
[2]   Neighbouring rights are rights similar to copyright but do not reward an authors' original creation (a work). They reward either the performance of a work (e.g. by a musician, a singer, an actor) or an organisational or financial effort (for example by a producer) which may also include a participation in the creative process. EU law only grants neighbouring rights to performers, film producers, record producers and broadcasting organisations. Rights enjoyed by neighbouring rightholders under EU law generally include (except in specific cases) the rights of reproduction, distribution, and communication to the public/making available.
[3]   See Communication COM(2012) 401, Towards better access to scientific information: Boosting the benefits of public investments in research, and Recommendation C(2012) 4890 on access to and preservation of scientific information.
Category of respondents
*Please choose the category that applies to your organisation and sector.
Member State
Public authority
Library/Cultural heritage institution (or representative thereof)
Educational or research institution (or representative thereof)
End user/consumer/citizen (or representative thereof)
Researcher (or representative thereof)
Professional photographer (or representative thereof)
Writer (or representative thereof)
Journalist (or representative thereof)
Other author (or representative thereof)
Collective management organisation (or representative thereof)
Press publisher (or representative thereof)
Book publisher (or representative thereof)
Scientific publisher (or representative thereof)
Film/audiovisual producer (or representative thereof)
Broadcaster (or representative thereof)
Phonogram producer (or representative thereof)
Performer (or representative thereof)
Advertising service provider (or representative thereof)
Content aggregator (e.g. news aggregators, images banks or representative thereof)
Search engine (or representative thereof)
Social network (or representative thereof)
Hosting service provider (or representative thereof)
Other service provider (or representative thereof)
Other
Questions
1. On which grounds do you obtain rights for the purposes of publishing your press or other print content and licensing it? (Multipe selections possible)
transfer of rights from authors
licensing of rights from authors (exclusive or non-exclusive)
self-standing right under national law (e.g. author of a collective work)
rights over works created by an employee in the course of employment
not relevant
other
2. Have you faced problems when licensing online uses of your press or other print content due to the fact that you were licensing or seeking to do so on the basis of rights transferred or licensed to you by authors?
yes, often
yes, occasionally
hardly ever
never
no opinion
not relevant
3. Have you faced problems enforcing rights related to press or other print content online due to the fact that you were taking action or seeking to do so on the basis of rights transferred or licenced to you by authors?
yes, often
yes, occasionally
hardly ever
never
no opinion
not relevant
4. What would be the impact on publishers of the creation of a new neighbouring right in EU law (in particular on their ability to license and protect their content from infringements and to receive compensation for uses made under an exception)?
strong positive impact
modest positive impact
no impact
modest negative impact
strong negative impact
no opinion
Please explain

The introduction of such rights in Spain and Germany has had a widespread negative impact
5. Would the creation of a new neighbouring right covering publishers in all sectors have an impact on authors in the publishing sector such as journalists, writers, photographers, researchers (in particular on authors' contractual relationship with publishers, remuneration and the compensation they may be receiving for uses made under an exception)?
strong positive impact
modest positive impact
no impact
modest negative impact
strong negative impact
no opinion
Please explain

The introduction of such rights in Spain and Germany has had a widespread negative impact
6. Would the creation of a neighbouring right limited to the press publishers have an impact on authors in the publishing sector (as above)?
strong positive impact
modest positive impact
no impact
modest negative impact
strong negative impact
no opinion
Please explain
7. Would the creation of a new neighbouring right covering publishers in all sectors have an impact on rightholders other than authors in the publishing sector?
strong positive impact
modest positive impact
no impact
modest negative impact
strong negative impact
no opinion
Please explain
8. Would the creation of a neighbouring right limited to the press publishers have an impact on rightholders other than authors in the publishing sector?
strong positive impact
modest positive impact
no impact
modest negative impact
strong negative impact
no opinion
Please explain
9. Would the creation of a new neighbouring right covering publishers in all sectors have an impact on researchers and educational or research institutions?
strong positive impact
modest positive impact
no impact
modest negative impact
strong negative impact
no opinion
Please explain

Educational institutions already face astronomical library and access to published materials costs. Compounding this problem with additional copyright costs would prove to be a tipping point for many of these institutions undermining their capacity to fulfil their core educational functions. In some cases it may even threaten the survival of these institutions.
10. Would the creation of a neighbouring right limited to press publishers have an impact on researchers and educational or research institutions?
strong positive impact
modest positive impact
no impact
modest negative impact
strong negative impact
no opinion
Please explain

The modern mainstream press is notoriously poor at evidence based substantive reporting, preferring instead to focus on superficial emotional response and capture of audience attention.  Subtle or complex academic enquiry has little place in such an information space. The introduction of further copyright barriers risks marginalising researchers and educational or research institutions even further
11. Would the creation of new neighbouring right covering publishers in all sectors have an impact on online service providers (in particular on their ability to use or to obtain a licence to use press or other print content)?
strong positive impact
modest positive impact
no impact
modest negative impact
strong negative impact
no opinion
Please explain

The European Parliament's JURI [legal affairs] committee has already rejected the notion of what has come to be called a "Google tax" in its report on updating copyright in 2015. When it was introduced in Spain, Google shut down their Google News service leading to a drop in online publisher traffic of up to 15%. In Germany a similar law led to similar drops in traffic and online publishers responded in the end by providing Google with a free licence to link to their content. The overall economic effect is consequently negative even if we simply count the costs of administering/managing the new Google licences, a cost that did not previously exist.

Google, Amazon, Apple, Facebook, Microsoft, big telcos and big tech cos generally can absorb these extra intermediary costs and offload them on their customers and end users. Online service SMEs get disproportionately affected as they can't rely on similar economies of scale.
12. Would the creation of such a neighbouring right limited to press publishers have an impact on online service providers (in particular on their ability to use or to obtain a licence to use press content)?
strong positive impact
modest positive impact
no impact
modest negative impact
strong negative impact
no opinion
Please explain

See previous answers
13. Would the creation of new neighbouring right covering publishers in all sectors have an impact on consumers/end-users/EU citizens?
strong positive impact
modest positive impact
no impact
modest negative impact
strong negative impact
no opinion
Please explain

Complex copyright provisions contribute to the drive towards industrial convergence in the communications and creative sectors. See for example Wu, Tim (2012) The Master Switch: The Rise and Fall of Information Empires and also Landes, William M., Posner, Richard A. (2003) The Economic Structure of Intellectual Property Law. Monopolistic/oligopolistic industries are bad for consumers/end-users/citizens.  As Thomas Babbington Macaulay said in his famous copyright speech in the House of Commons in the 1840s, they "make articles scarce... dear, and... bad" http://www.thepublicdomain.org/2014/07/24/macaulay-on-copyright/
14. Would the creation of new neighbouring right limited to press publishers have an impact on consumers/end-users/EU citizens?
strong positive impact
modest positive impact
no impact
modest negative impact
strong negative impact
no opinion
Please explain

See answer to q13
15. In those cases where publishers have been granted rights over or compensation for specific types of online uses of their content (often referred to as "ancillary rights") under Member States' law, has there been any impact on you/your activity, and if so, what?
strong positive impact
modest positive impact
no impact
modest negative impact
strong negative impact
no opinion
16. Is there any other issue that should be considered as regards the role of publishers in the copyright value chain and the need for and/or the impact of the possible creation of a neighbouring right for publishers in EU copyright law?
Yes
No
If so, please explain and whenever possible, please back up your replies with market data and other economic evidence.

It is long past the time when a "copyright" should be considered the basic economic unit of creative work in our information age. The very act of switching on or using a computer, a word processor or a browser, involves copying. Instead of the debate on copyright being constantly dominated by proposals to expand the economic rights of a privileged collection of incumbent economic actors, such as publishers, the EU should be considering fundamental structural changes to the legal infrastructure around creative rights. One starting point would be the 10 copyright principles espoused by international copyright specialist Paul Edward Geller available at http://www.criticalcopyright.com/copyright_principles.htm

Note in particular Geller's re-focusing of creative rights as authors' rather than publishers' rights. His ten principles:

 

 1. THE CORE RIGHT: Each author has the core right to disseminate her own creations, but no one may exercise this right to restrain others from creating or disseminating their own works.

 2. RIGHTHOLDERS AND SUBJECT-MATTERS: Each author has rights only in what each creates in any work that can be disseminated, but neither in techniques nor in materials or forms insofar as these are generated by techniques.

 3. MORAL RIGHTS: Authors may have themselves and their works respectively referenced when these are disseminated, be awarded actual damages for failure to so reference, and obtain equitable relief for impairments to integrity, notably for those made without creativity.

 4. ECONOMIC RIGHTS: Authors may obtain orders against the unauthorized dissemination of their own works, even in marginally creative derivative forms if irremediable harm is likely, and may be awarded actual damages or profit shares for unauthorized dissemination in any form.

 5. EXCEPTIONS: Authors’ rights, save the right to reference, do not apply to any single redissemination that common sense finds necessary for critical or informational purposes, such as commentary, explanation, illustration, news reporting, archival access, research, or teaching.

 6. LIMITATIONS: Authors’ rights are to be legislatively limited in their duration and may call for equitably limited remedies over time; overriding laws may limit relief in order to avoid undercutting such aims as assuring privacy, free expression, or open communication.

 7. ALLOCATION: Authors share rights in their own work among themselves, or with any principal, subject to the parties’ equitably construed consensus; authors may transfer economic rights to third parties through restrictively construed contracts or grants.

8.  CHAIN OF TITLE: A prior transfer of an economic right prevails over a subsequent transfer, subject to legally designated notice, but rightholders may not assert such rights in works licitly made public if they do not reasonably authorize uses.

9.  REMEDIES: Authors’ self-help may not be enforced beyond the scope of their rights, nor civil remedies imposed for specific acts that do not foreseeably lead to infringement, nor criminal sanctions for such acts not specified in statute.

10. CHOICE OF LAW: The cross-border infringement of authors’ rights is governed by the laws respectively in force where the work at issue is or might be received, subject to internationally compelling public policies in the field.
Use of works, such as works of architecture or sculpture, made to be located permanently in public places (the 'panorama exception')
EU copyright law provides that Member States may lay down exceptions or limitations to copyright concerning the use of works, such as works of architecture or sculpture, made to be located permanently in public places (the ‘panorama exception’) [1] . This exception has been implemented in most Member States within the margin of manoeuvre left to them by EU law.
In its Communication Towards a modern, more European copyright framework, the Commission has indicated that it is assessing options and will consider legislative proposals on EU copyright exceptions, among others in order to "clarify the current EU exception permitting the use of works that were made to be permanently located in the public space (the ‘panorama exception’), to take into account new dissemination channels.”[2] This subject was not specifically covered by other public consultations on copyright issues the Commission has carried out over the last years. Further to the Communication and the related stakeholder reactions, the Commission wants to seek views as to whether the current legislative framework on the "panorama" exception gives rise to specific problems in the context of the Digital Single Market. The Commission invites all stakeholders to back up their replies, whenever possible, with market data and other economic evidence.
*Selection
Do you wish to respond to this questionnaire "Use of works, such as works of architecture or sculpture, made to be located permanently in public places (the 'panorama exception')?
Yes (Please allow for a few moments while questions are loaded below)
Category of respondents
*Please choose the category that applies to your organisation and sector.
Member State
Public authority
Owner or manager of works made to be located permanently in public places (or representative thereof)
Library or Cultural heritage institution (or representative thereof)
Educational or research institution (or representative thereof)
End user/consumer/citizen (or representative thereof)
Visual artist (e.g. painter, sculptor or representative thereof)
Architect (or representative thereof)
Professional photographer (or representative thereof)
Other authors (or representative thereof)
Collective management organisation (or representative thereof)
Publisher (or representative thereof)
Film/audiovisual producer (or representative thereof)
Broadcaster (or representative thereof)
Phonogram producer (or representative thereof)
Performer (or representative thereof)
Advertising service provider (or representative thereof)
Content aggregator (e.g. news aggregators, images banks or representative thereof)
Search engine (or representative thereof)
Social network (or representative thereof)
Hosting service provider (or representative thereof)
Other service provider (or representative thereof)
Other
Questions
1. When uploading your images of works, such as works of architecture or sculpture, made to be located permanently in public places on the internet, have you faced problems related to the fact that such works were protected by copyright?
Yes, often
Yes, occasionally
Hardly ever
Never
No opinion
Not relevant
If so, please explain what problems and provide examples indicating in particular the Member State and the type of work concerned.
2. When providing online access to images of works, such as works of architecture or sculpture, made to be located permanently in public places, have you faced problems related to the fact that such works were protected by copyright?
Yes, often
Yes, occasionally
Hardly ever
Never
No opinion
Not relevant
If so, please explain what problems and provide examples indicating in particular the Member State and the type of work concerned
3. Have you been using images of works, such as works of architecture or sculpture, made to be located permanently in public places, in the context of your business/activity, such as publications, audiovisual works or advertising?
Yes, on the basis of a licence
Yes, on the basis of an exception
Never
Not relevant
4. Do you license/offer licences for the use of works, such as works of architecture or sculpture, made to be located permanently in public places?
Yes
No
Not relevant
5. What would be the impact on you/your activity of introducing an exception at the EU level covering non-commercial uses of works, such as works of architecture or sculpture, made to be located permanently in public places?
strong positive impact
modest positive impact
no impact
modest negative impact
strong negative impact
no opinion
Please explain

I'm an educator. I would not be using panoramic images for commercial purposes but for research and teaching.
6. What would be the impact on you/your activity introducing an exception at the EU level covering both commercial and non-commercial uses of works, such as works of architecture or sculpture, made to be located permanently in public places?
strong positive impact
modest positive impact
no impact
modest negative impact
strong negative impact
no opinion
Please explain

Blocking non commercial use interferes with education and research
7. Is there any other issue that should be considered as regards the 'panorama exception' and the copyright framework applicable to the use of works, such as works of architecture or sculpture, made to be permanently located in public places?
Yes
No
If so, please explain and whenever possible, please back up your replies with market data and other economic evidence.
Submission of questionnaire
End of survey. Please submit your contribution below.


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Wednesday, May 25, 2016

Cory Doctorow on our movement towards digital alchemy

Cory Doctorow gave a terrific 13 minute talk at a recent O'Reilly conference on how it is time to stop and do something about DRM - a world in which everything [the internet of things] is made of computers is not just one with anti-competitive effects but which is a nightmare for privacy and security.

In ancient times alchemists were a bit like scientists, Cory tells us. They used something like the scientific method to attempt to understand the laws of nature. If they could not reproduce results they blamed it on demons and superstition - the demons changed the rules of nature, the alchemists believed, in order to prevent anyone understanding the universe.  Alchemists also kept what they found secret, rather than sharing and engaging in peer review and efforts to recreate results as scientists do. The result was lots of alchemists finding out for themselves that mercury was poisonous. The enlightenment demonstrated that sharing of knowledge worked in the public good.

O'Reilly have released 3 minutes of the talk freely for sharing via on YouTube



Cory, as ever, has lots of engaging tales to tell. One of the most serious was perhaps that of a security researcher who suffers from diabetes. He discovered a flaw in an insulin pump. The built in wifi would enable a stranger to take control of the pump and kill a diabetic using it from 30 feet away. But he couldn't publish the details because he would be revealing DRM circumvention instructions, a felony in the US, punishable by up to 5 years in jail. He could refuse to use the pump but not tell others why or how it was unsafe.

Other researchers have shown it is possible to take remote control of a Chrysler Jeep via the internet since it has a Sprint network SIM. 1.4 million of these vehicles in the US could be driven from anywhere on the internet, access to acceleration, brakes and steering, all controllable remotely.

MP3 players and smartphones are likely improving long term commercial prospects for hearing aid vendors. But future hearing aids will be computers. General purpose technology in your head but programmed and controlled not by the user but the manufacturer or supplier. They will know what we hear, when we hear it, filter what it doesn't want us to hear or even make us hear things depending on how they are configured. And they will have DRM. As will skyscrapers with seismic dampers that keep them from falling down and smart thermostats that enable power companies to reach into our home and turn the temperature down and stop us turning it up again.

Yet when we make it illegal to crack or circumvent DRM we make it attractive for commercial enterprises to engage in this type of nuisance behaviour, especially if they are making hardware on razor thin margins.

Cory concluded by noting the stuff - DRM - designed in an effort to maximise revenues for the entertainment business, is driving us towards a dystopian future where we will "be Huxleyed into the full Orwell". It's a new age of alchemy, a demon haunted world where we're not allowed to understand the technology and internet of things we live amongst. But do take a small break and listen to the whole talk yourself. It's 13 minutes well spent.
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Monday, May 23, 2016

The tyranny of the algorithm yet again...

I was reminded yet again, over the weekend, how easy it is to get branded persona non grata in the age of the judgmental algorithm.

A search for "Isis Close" via any popular search engine throws up a significant collection of such streets, primarily in the Thames Valley region, in places like Long Hanborough, Aylesbury, Oxford, Abingdon and Putney, amongst others.

That these place names exist won't be a surprise to anyone familiar with English limnology - the study of rivers and inland waters. As Wikipedia helpfully tells us, "The Isis is the name given to the part of the River Thames above Iffley Lock which flows through the university city of Oxford". In at least one local primary school I'm familiar with, the classes are called Windrush, Cherwell, Isis and Thames.

Unfortunately for those who live in an Isis Close, Street, Road or other equivalent, the label Isis has been appropriated by or conferred upon (by the media) a bunch of murderous extremists in the Middle East. So the word "Isis" has become somewhat toxic in the West.

Now PayPal has decided that they are not prepared to facilitate payments for goods to be delivered to an address which includes the word "Isis".

An Isis street resident ran into some unexpected difficulties when attempting to purchase a small quantity of haberdashery on the internet with the aid of a PayPal account. The transaction would not process. In puzzlement she eventually got irritated enough to brave the 24/7 customer support telephone tag labyrinth. The short version of the response from the eventual real person she managed to get through to was that PayPal have blacklisted addresses which include the name "Isis". They will not process payments for goods to be delivered to an Isis related address, whatever state of privileged respectability the residents of such properties may have earned or inherited in their lifetimes to this point.

Who knows if the "avoid Isis" algorithm was added by a low level techie, a policy decision within PayPal driven by risk averse lawyers or some other process. Whatever the process, the result is that people with an Isis address have been tagged with a "do not touch" label on the internet.

We rarely understand that the poor, the mentally or physically disabled, ethnic and religious minorities, and every other collective marginalised group that privileged society discriminates against already live in a dystopian world. A world full of legal, environmental, economic and societal strictures and attitudes that make life difficult. We rarely understand, either, how easy it is, in a world full of big data, wielded by commerce and governments alike, to be cast out from our world of privilege to that of the marginalised.

So what are residents of "Isis" addresses to do. Interestingly enough, PayPal are not so wedded to their dissociation from "Isis" that they are banning this particular brand of humanity from holding PayPal accounts. The marginalised are still potentially profitable fodder. The organisation is merely concerned with not facilitating transactions which result in goods or services being delivered to those addresses. So Isis addressees could
  • have their orders delivered to an alternative address for collection
  • apply to the local council to have the name of their street changed
  • move house
The first is a serious inconvenience. The latter two options rather extreme and even then, given the tendency of unwelcome labels to hang around people on the internet and in big databases, there's no guarantee that a change of street name or address, drastic as they are, would entirely rid the people concerned of the tyranny of the algorithm.

Being unable to buy a sewing kit on the internet might seem like a minor middle class inconvenience but metadata, like details of someone's address, matters. It's only two years since the former US National Security Agency and CIA chief, General Michael Hayden, went on record with his "We kill people based on metadata" comment. Metadata is used to categorise and discriminate. We have no control over what commercial organisations or government or other economic actors and indeed criminals do with it.

With the UK Investigatory Powers Bill heading for the statute books, and the government taking little or no notice of the serious criticism it has received, this state of affairs is not primed to improve any time soon. Could I remind the reader of this simple engineer's perspective of the meaning of s78 alone in this large and complex law - it looks a bit like this:
I leave you to decide whether the government and its institutions will be able or willing to use this unimaginably gigantic collection of data in the public interest and without doing too much collateral damage to the sifted and categorised populace along the way.

Update: A stark example of where the tyranny of the algorithm does real damage - software used across the US to predict future criminals and it’s biased against black people.
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Wednesday, May 11, 2016

Chatham House Cyber Policy Journal launch

I had the privilege of attending the launch of the Journal of Cyber Policy at Chatham House on Monday this week. The keynote speech was given by my old friend, John Naughton, an inveterate storyteller who, as usual, entertained and informed in equal measure.

What follows are some notes I made on the talk.

One of John's favorite books is a volume of Leonard Woolf's autobiography, The journey not the arrival matters. Yet in the case of the internet, he suspects, the reverse is the case - it's the arrival that's important.

In 1999 CEO of Intel, Craig Barrett, suggested that any company that wasn't an internet company within 5 years would not be a company at all. Most mainstream commentators dismissed him as nuts. He wasn't saying every organisation wanted to get into direct competition with the big tech companies but that the network itself was on the way to becoming a utility, a general purpose technology (GTP). We have focused as a society, says John, too much on the information goods and too little on the GTP.

Arthur C. Clarke's 3rd law is that any sufficiently advanced technology is indistinguishable from magic. The internet is the first significant, magic, advanced technology that humans have built that humans don't understand. [When I mentioned this insight to a young colleague here at the Open University earlier, it was one of those light bulb moments - his face lit up and he couldn't believe he hadn't realised this before.]

Think about that for a minute. The internet is a pervasive utility upon which we are hugely dependent but barely understand.

GTPs drastically affect society and often require the wholesale reconstruction of infrastructure, economic, social and cultural norms. Think steam, electricity, the railroads, the automobile. Our society is only at the very beginning of our transformation brought about by the Net. Despite being over half a century old - if we date it back to the packet switching ideas of Paul Baran and Donald Davies, in the 1960s - we have not yet figured out the significance of the internet.

We exist in a state of informed bewilderment, drowning in information and still not understanding. Digital technologies are completely incomprehensible to ordinary mortals. When it came to steam people didn't have to understand Boyle's law to understand steam engines worked. Coal burns. It makes high pressure steam. The steam pushes pistons up and down. The pistons are connected to rods that are connected to wheels that turn. The analogue industrial machine works and we can see how. Digital technologies are orders of magnitude more complex and their workings invisible to the naked eye.

Digital technologies come with key affordances -
  • zero marginal costs
  • powerful network effects 
  • permissionless innovation
  • the dominance of power law distributions 
  • technological lock-in
  • black box workings
  • complexity
  • lack of security
  • material processed not as physical goods but in information, the lifeblood of democracy and social life
The internet, most notably, is a global machine for springing surprises. Some good - the world wide web, voice over internet protocol (which Skype sits on). Some not so good - mass surveillance, information warfare, malware. Some disruptive in other ways - e.g. the impact on the music industry and the challenge of developing laws fit for the information age.

We as a society have been so dazzled by the technology, so sucked in by the true believers in technological determinism in Silicon Valley, that we rarely, if ever, stop to think about it or question the technological architecture of the world in which we live. Passive acceptance is the order of the day - we like free, convenient services and companies like to get big fast, to harness network effects. Yet technology is only one of many factors that drive our history and that technology exists in a social, economic, cultural and political context.

Only latterly (the past couple of decades) has the network being taken over by dominant corporate economic actors. The rather large elephant in the room is that the Net was mostly created by US organisations, military, civilian and corporate - publicly and privately funded. US stewardship of the Net was largely benign in its early history. [For a terrific account of the characters, the technology and the story I recommend John's first book, A Brief History of the Future: The Origins of the Internet. For anyone without easy access to a library or the funds to get themselves a copy, I have half a dozen paperback copies of the book on the shelves in my Open University office which I'm happy to dispatch to good homes. Just drop me an email]

There are a number of ingredients that make it hard for many people to understand the internet, its underlying technologies and its significance.

Firstly, we have a tendency to view our modern world with the 20/20 vision of hindsight - technology evolved step by step, one great idea to the next and it had to be this way. We perceive a smooth path to the current reality and neglect developments that could have and possibly even should have happened.

Packet switching - the fundamental technology of the Net developed independently by Paul Baran and Donald Davies on opposite sides of the pond in the 1960s - seems obvious, with hindsight. Yet Baran had to abandon his original designs in the face of vehement opposition, not least from the incumbent US telecommunications monopoly, AT&T.

[AT&T executive, Jack Osterman said at the time: "First it can't possibly work, and if it did, damned if we are going to allow the creation of a competitor to ourselves." Baran's employer, the RAND Corporation believed in the ideas enough to try and encourage the US Air Force to build and test a prototype network. The Air Force were really enthusiastic but the whole thing got strangled in military and Washingon DC bureaucracy and politics. In the public-private sector revolving door that is DC politics, the crew that would have been tasked with the project included ex AT&T employees. They just did not understand the technologies and would not have been up to the job. So Baran reluctantly dropped the project knowing it was bound to fail in those circumstances and with those with a vested interest in ensuring it failed running the project. All completely crazy but a nice indicator that meritorious technology will not necessarily emerge without the right support and conditions in so many contexts]

So there is nothing inevitable about the shape and form of the internet we have today. It has been designed, built and evolved that way by technical decisions, relative power dynamics, chance, legal, economic, social, cultural and environmental factors.

The fact that surveillance capitalism has become the dominant business model of the Net was not inevitable - it could not have happened without user consent - e.g. our addiction to "free" services and convenience - and the legal and regulatory and economic forces not just facilitating but actively encouraging such a state, ironically through passively allowing the surveillance capitalists to act without public interest shaped restraints or controls.

The second ingredient making it difficult for us to get a handle on the internet is the Net's (or humanity on the Net's) pathological obsession with the last 5 minutes - the short (some would say minuscule) term perspective of most of the public debate about it - or as John described it, the sociology of the last 5 minutes. Seismic shifts go largely unnoticed as the mass media indulge in feeding frenzies over new new things.

So when Craigslist - a free localised advertising service - launched the newspaper industry were blissfully unaware of the threat it posed to their business for a long time. The value chain of newspapers matched loss making journalism with profit making advertising. The net dissolved this and Craigslist was the early warning.

If the peace of God surpasses all understanding, as it says in the bible, so too - an accute manifestation of the sociology of the last five minutes - did the valuation of internet companies in the dot-com boom. The core business model was to collect as many consumers as possible, with a view to harnessing the network effects - get big enough and the revenues would flow. Companies would get wildly inflated stock market valuations just by adding an"e-" prefix or ".com" to the end of their names. Less than half of these outfits survived the dot-com crash.

But during this period the communications infrastructure to sustain the modern internet developed apace. In the California gold rush, it largely wasn't the miners that made their fortunes but the guys that sold them pickaxes and shovels.  The fibre optic networks built in the thick of the dot-com hype - though some of these network builders survived and some didn't - became the physical infrastructure we still rely on today. Unnoticed, unworthy of frenzied media and speculator hype, it nevertheless was the significant development of the dot-com era. A ubiquitous public utility. A GTP. Enterprises unthinkable before this GPT - Uber, Facebook etc - became unremarkable after it.

There John concluded before a lively Q&A, chaired ably by the Journal of Cyber Policy's editor, Emily Taylor. She opened the questions with one of her own - given the state of surveillance capitalism, extractive corporations and personal data being treated as the new oil, is there any end in sight? Will people get fed up and push back?

John was not encouraged that there is sufficient public interest in such a push back yet to think it likely.  The problem, as he said, is that a large chunk of our fellow human beings seem to think ubiquitous surveillance is an acceptable state of affairs. Mass surveillance seems here to stay with who knows what long term consequences for privacy and human rights more generally.

There followed a question on the balkanisation or fragmentation of the Net which the questioner suggested might facilitate localised innovation. John thought that an interesting perspective though it flew in the face of prevailing wisdom about network effects. There was always likely to be pressures driving in the direction of fragmentation but a few years ago he'd have bet against it. Now, post Snowden revelations he considers balkanisation a racing certainty. The questioner came back suggesting that wasn't necessarily a catastrophe, was it? John felt it was.

Next came a question from someone working on machine learning project at the Royal Society and the revelation of Google's DeepMind access to NHS patient data (1.6 million people's records). Is this a sign there will be more social innovation?

John's response raised the biggest (of many) laughs of the evening. Big data, he hypothesised, was like the Justin Bieber of the intellectual world. It's falsely believed if you collect enough data you can understand anything but big data has a crippled epistemology and too often correlation patterns in the data are interpreted as identifying causation. So in 2008 Google published a paper in Nature claiming success at predicting flu outbreaks substantially earlier than medical experts at centres for disease control. 2 years later they failed to repeat that success. Why? John figures you don't need to be a genius to realise that Google knows nothing about flu. It is not where there expertise lies and correlation does not prove causation.

Next came a question about the French Minetel service, a popular but limited online pre world wide web service accessed via the telephone network.

John was happy to talk about Minitel which in his opinion may have slowed the public engagement with the internet in France for a time. But more importantly it gave him the opportunity to articulate two wonderfully wise ideas embedded deep in the architecture of the internet by the original architects [of which I'm sure John would credit Baran and Davies already mentioned but also Vanevaar Bush, Claude Shannon, JCR Lickider, Bob Taylor, Charles Herzfeld, Larry Roberts, Leonard Kleinrock, bob Kahn and Vint Cerf, Jon Postel, David Clark amongst others] -
  1. Firstly that the [original] network was designed in a way that no one entity could control
  2. Secondly that [original] network had to be future proof i.e. it was not optimised for any particular need (e.g. telephony) and would be agnostic as to what it was being used for
The network would be dumb and the intelligence reside in the devices at the ends, something that became known later as the end to end principle, articulated in Saltzer, Clark and Reed's seminal paper in the early 1980s. The network took in data packets and did the best it could to deliver those packets to the destination address on the label. It did not care what was in the packets as long as they complied with TCP/IP protocols. The result was that if you could do something with data packets you could use the Net and didn't need anyone's permission, unlike the situation Paul Baran found himself in when AT&T opposed his innovative networking ideas. We had reached an era of permissionless digital innovation.

So in 1989 a scientist at CERN, Tim Berners Lee came up with an idea for sharing documents based on earlier ideas of Vanevaar Bush before World War II. Berners Lee convinced his boss to give him a budget and in the space of a year had created the world wide web on the internet, arguably the biggest transformation in communications since the Gutenberg printing press. Some people now even think the world wide web is the internet. (More depressingly, many seem to think Facebook is the internet).

The Net is no longer a sandpit for permissionless innovation. Now what's built is done in silos and walled gardens and no one can build anything on Facebook. The blockchain is a very interesting development which may prove disruptive but surveillance [and enclosure] capitalism has a powerful foothold.

Inevitably someone raised the internet of things which John described as a runaway train, mostly run by people who don't know what they are doing. They certainly have no understanding of security. A Cabinet office report, co-authored by the government's chief technology officer, warned, some years ago, that there were serious security flaws in their muli-billion pound plan to get smart meters installed nationwide. Just one of the problems was that every smart meter used the same encryption key - a single point of failure - and GCHQ reportedly "intervened" recently to help out with the security issues.

How can we improve the security situation around the internet of things?

John: Legal liability would help. [That raised the second biggest laugh of the evening]. Seriously though, if Ford make something dangerous they can be held liable under consumer protection, contract, health and safety laws. Software companies are rarely held liable for holes in their software and they have being protecting themselves from liability by end user licences agreements that are an affront to unfair contract terms regulations, health & safety and human rights for generations. But somehow because they are high tech companies it it an accepted state of affairs. The imposition of liability may also inhibit innovation, so it is a complex calculus but we're a long way from a satisfactory socially beneficial and stable state of affairs on this.

Final question: you seem to be a pessimist. Don't you think the 50% of humanity not yet on the internet will benefit from it.

John: Yes and the main agency for that will be smart phones. As to being a pessimist, he is sometimes accused of that but he doesn't see himself as such. The world is as it is but we have to be better at understanding and shaping it and its technologies in the public interest. He closed with his own version of Kranzberg's first law - technology is neither good nor bad but it sure as hell is not neutral.
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Tuesday, April 26, 2016

Liberty confront people directly with implications Investigatory Powers Bill

Liberty, with an aggressive confrontational 2 minute video opposing the provisions of the Investigatory Powers Bill, have been demonstrating that when people are accosted directly and immediately with the reality of personal data collection and intrusive privacy invasion, we do not like it.



"Would you let a stranger into your phone? The snoopers' charter won't give you a choice" reads their tag line. Posted earlier today it's only got 89 viewers so far.

Why, then, is it somehow acceptable if mass privacy invasion or bulk data collection/retention/ interception happens silently or invisibly or unobtrusively in the background whilst we don't pay attention? Might Liberty actually be suggesting that we have been a passively tolerant society for too long?
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Friday, April 22, 2016

Andrew Appel on why internet voting is a really bad idea

Princeton voting expert Andrew Appel gave a terrifically accessible 20 minute talk, recently, on why internet voting is a really really bad idea.



Prof Appel blogs at Freedom to Tinker.
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Monday, April 11, 2016

Privacy International & CassetteBoy v The Snoopers' Charter

CassetteBoy has made an amusing 2 minute video for Privacy International on the Investigatory Powers Bill.



Bill documents and the written evidence (that submitted by original 23 March 2016 deadline) to the Public Bill Committee examining the Bill are available here.
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