The Practical Nomad, Edward Hasbrouck, is skeptical about the apparent cancellation of the US CAPPS II airline passenger profiling system.

The European commission have written to the UK government  about their concerns that UK data protection legislation may not be in comlpiance with the EU data protection directive of 1995, especially in the light of the recent Durrant v  Financial Services Authority case.
 
"OUT-LAW understands that the failure of the UK Government to guarantee the right of access to personal data is likely to be a strong feature of the letter. Other concerns appear to include insufficient controls on international transfers of data and a lack of investigative powers given to the Commissioner." 
 
There is a hint of irony about this letter coming at the same time as Tom Ridge confirming the killing off of CAPPS II.

According to Tom Ridge, head of US Homeland Security, the airline passenger profiling system is now dead.  I wonder if that will give the EU bureaucrats food for thought on their agreement to hand over EU passenger data to the US for CAPPS II?

Wired is reporting that the demand for e-voting paper trails is escalating in the US.

Lawmeme have produced an index to Ernest Miller's writings on the INDUCE (Inducing Infringement of Copyrights) Act.

"His coverage matters to lawyers, techies, copyfighters, and consumers. That is, everyone. Ignore it at your peril. The IICA is one of the most dangerously misguided and malicious pieces of technology legislation to rear its ugly head in the last decade. Ernie's obsessively detailed articles are a powerful indictment of a bad idea. "

The DMCA has been used, Lexmark fashion, to secure a preliminary injunction "against a third party service vendor who tried to fix StorageTek tape library backup systems for legitimate purchasers of the system." Further evidence of unintended effect of killing after sales spares/service competition.

The NYT had a feature over the weekend about a film producer who is making a documentary critical of Fox News and the potential copyright issues he might run into when using the company's news clips. The film is called "Outfoxed: Rupert Murdoch's War on Journalism"

" The film is an obsessively researched expose of the ways in which Fox News, as Greenwald sees it, distorts its coverage to serve the conservative political agenda of its owner, the media tycoon Rupert Murdoch. It features interviews with former Fox employees, leaked policy memos written by Fox executives and extensive footage from Fox News, which Greenwald is using without the network's permission."

Now this is completely idiotic. Apparently some in the publishing industry think:

"Used books are to consumer books as Napster was to the music industry"

What unadulterated nonsense.

Larry Lessig has some interesting background to the INDUCE act and how confusion over copyright reigns in Congress.

Just came across an Microsoft reader e-book version of the US Constitution. Amazon say it can't be printed but one of the reviewers say that the license permits it to be printed twice a year. That's funny.

The IHT is suggesting the EU's software patent policy is "under seige."

Ben Hammersley at The Guardian looks at the issue of EU software patents in an accessible piece.

On the copyright front, those aggravated by Michael Moore's latest film, Farenheit 9/11, are suggesting a distributed Net based critique of the entire film in small chunks.

"The internet is filling up with point by point exposes of Michael Moore’s deceptions. (See for instance MooreWatch, fahrenheitfact, and various reviews.) Would it be legal to compile these Fiskings into a filmic refutation of Fahrenheit 9/11, using the same video feeds that Moore uses, and some of his own footage? Would it be “fair use” to in effect take clips from Fahrenheit, replace Moore’s narration with honest narration, and run the modified clips side by side with the originals?

Perhaps the effort could be decentralized, with lots of people or little groups of people each putting together individual snippets. Surely fair use allows a person to put together one little comparison piece."

Michael Moore is on record as saying he doesn't mind people downloading his film as long as they are not making a profit out of it because he didn't like the state of intellectual property laws. I'm not sure that this was what he had in mind though.

I'm no fan of soundbite propaganda from any part of the political spectrum and that's one of the nice things about the Net - it's potential as a tool for reasoned argument and not just a point by point propaganda based dissection of an opponents' arguments. Sadly the temptation is to run with the unfair advocacy tactics rather than reasoned arguments because so many of us can be persuaded in that way. Mr Moore's film is only really likely to further convince President Bush's opponents that they still don't like him and convince Mr Bush's supporters that they don't like Mr Moore. It would be significantly more useful if either side focussed on enlightenment rather than playing to the mob.

For copyfighters - Ernest Miller is continuing his hatchet job on the INDUCE (now IICA) act at his Importance of... weblog. INDUCE and the DMCA, small businesses, RIAA lawsuits against individuals, Finlaw survey on same, derivative works et al. Ernest is on a roll and when someone this smart and sensible gets this worked up, it is worth taking notice.

The EFF want to scupper the broadcast flag. Any devices created in advance of the regulation coming into effect, which can bypass the technical restrictions engendered by the broadcast flag, will still be legal afterwards. So the EFF are encouraging the creation of so many such devices with so many better features than technology that will be required to be approved, that the market for the latter will just not exist. This could be usefully called the Charles Nesson approach - don't complain about what "they" are doing to the potential of the technology, just gets lots of people using it creatively.

"Today, you can use any device you like with your television: VCR, TiVo, DVD recorder, home theater receiver, or a PC combining these functions and more. A year from now, when the FCC's broadcast flag mandate [PDF] takes effect, some of those capabilities will be forbidden.

Responding to pressure from Hollywood, the FCC has adopted a rule requiring future digital television (DTV) tuners to include "content protection" (aka DRM) technologies. Starting next year, all makers of HDTV receivers must build their devices to watch for a broadcast "flag" embedded in programs by copyright holders. When it comes to digital recording, it'll be Hollywood's DRM way or the highway. Want to burn that recording digitally to a DVD to save hard drive space? Sorry, the DRM lock-box won't allow it. How about sending it over your home network to another TV? Not unless you rip out your existing network and replace it with DRMd routers. Kind of defeats the purpose of getting a high definition digital signal, doesn't it?

The good news is this mandate doesn't take effect for another year. We have until July 1, 2005, to buy, build, and sell fully-capable, non-flag-compliant HDTV receivers. Any receivers built now will "remain functional under a flag regime, allowing consumers to continue their use without the need for new or additional equipment." [PDF] Any devices made this year can be re-sold in the future."

The Dutch paliamemt is forcing the minister who supported the EU software patent directive to withdraw his support. This is apparently the first time in EU history that this has happened.

The EFF have name their top ten most-wanted patents

Mattel have paid a heavy price, according to the NYT, for bringing a frivolous copyright and trademark lawsuit against an artist parodying Barbie.

"After a lengthy legal tussle, which included a series of appeals, a federal judge late last week instructed Mattel to pay Mr. Forsythe legal fees of more than $1.8 million...

...Mattel has aggressively protected the Barbie likeness and trademark...

"Plaintiff had access to sophisticated counsel who could have determined that such a suit was objectively unreasonable and frivolous," Judge Lew wrote in his order. "Instead it appears plaintiff forced defendant into costly litigation to discourage him from using Barbie's image in his artwork. This is just the sort of situation in which this court should award attorneys fees to deter this type of litigation which contravenes the intent of the Copyright Act.''

The order also characterized Mattel's claim of trademark infringement as "groundless and unreasonable.''

Jonathan Zittrain, a professor at Harvard Law School who specializes in Internet and copyright law, said, "It's enough to give corporations with brands they want to protect and expand pause to consider whether to simply reflexively unleash the hounds the minute they see somebody doing something that relates to their brand of which they don't approve.

"It may send a signal that a 'take no prisoner' litigation strategy against the little guy has new risks for the plaintiff," he said. "

There's an interesting article in the Independent about the US scientific community's concerns about the politicisation of science by the current Bush adminstration.

IP Law bulletin (subscriber only access) reported that the US Senate passed the INDUCE (or as it is now called the 'Inducing Infringement of Copyrights'). According to Wendy Selzer at the EFF the report was wrong but the bill is still being rushed through at breakneck speed.

Well PIRATE Act has got past the US Senate. Senator Hatch is backing the legislation and hoping for tens of thousands of enforcement actions by the department of justice (DOJ) on behalf of the entertainment industries. Yes the PIRATE act requires the DOJ and (not the entertainment industry) to spend money on investigators and lawyers to go after those diseased children with copyright infringing tendencies, who Senator Hatch will simultaneously protect with his INDUCE act. The leaps of logic here, if it were possible to produce a physical manifestation of them, would be worthy of a world class gymnast.

Senator Hatch has come a long way since Larry Lessig proclaimed him as someone who understood.

The NYT has picked up on some of the problems with the INDUCE act.

The INDUCE (Inducement Devolves into Unlawful Child Exploitation) act has had a change of name. It is now to be called the Inducing Infringement of Copyrights Act of 2004. Ernest Miller made his own notes on Senator Hatch's justifications for the bill. Extract (Ernest's comments are in brackets bold and italics):

"A secondary-liability rule that punishes only control also punishes consumers: It encourages designers to avoid “control” by shifting risks onto consumers. [Whereas laws that punish control AND intent punish consumers by eliminating types of software many consumers use quite legitimately. It also punishes consumers by taxing innovation and turning technology development over to Hollywood. Another, less drastic solution would be for the government to sponsor a consumer education program, like those "no smoking" ads. Heck, why should government do it? If Hollywood is so concerned with the consumers, let them pay for an education campaign.] For example, Napster incurred billion-dollar liability because it controlled computers housing a search index that located infringing files. Programs like Kazaa avoid Napster’s “control” by moving their search indices onto computers owned by unsuspecting consumers. [Unsuspecting consumers or willful infringers? Which is it, Senator? If the consumers are unsuspecting, shouldn't we be considering a law absolving them of liability as well?] ...

...But a fallacy lurks here: The “direct infringers” at issue are not the traditional targets for copyright enforcement. [Why is "direct infringers" in quotes? Are they direct infringers or not?] In fact, they are children [Will someone please think of the children?] and consumers: They are the hundreds of millions [Hundreds of millions. That is an awful lot of "direct infringers." Certainly a higher estimate of infringers than I have seen before.] of Americans – toddlers to seniors – who use and enjoy the creative works that copyrights have helped create. [Indeed. Perhaps Hatch should pass a law immunizing children and consumers from infringement lawsuits if he is so concerned.]...

...Worse yet, artists must sue their fans for the sin of misusing devices designed to be easy and tempting to misuse. [Yeah, that IM is just totally too tempting. Oh, wait, Hatch is talking about P2P, as he ... well, he actually never defines it.] That is unfair: When inducement is the disease, infringement can be seen as just a symptom. [You're not guilty of infringement - you're just sick. "Hi, I'm Ernest, and I'm an infringer." "Hi, Ernest!"] Yet artists must ignore inducers who profit by chanting, “Hey, kids, infringement is cool, and we will help you get away with it.” [Well, if they are chanting ... oh, wait, the only one chanting is in Palestine, outside of Hatch's reach. The FTC says the ones in the US give adequate warning of the risks.] Instead, artists can only sue kids [Will someone please think of the children?] who succumb to this temptation. They must leave Fagin to his work – and sue Oliver Twist. [The difference being, however, that Fagin has specific knowledge of the specific individuals he is sending out to commit specific crimes. Slightly different case, don't you think?]

Brilliant. I laughed out loud at: You're not guilty of infringement - you're just sick. "Hi, I'm Ernest, and I'm an infringer." "Hi, Ernest!".

With bipartisan support this thing actually has a serious chance of making it into law. The EFF have composed a hypothetical complaint against Apple based on the proposed Act (previously known as INDUCE).

"Apple's iPod music player seemed particularly vulnerable to attack. Any major record label could bring a strong lawsuit against Apple for "intentionally inducing" infringement under this new law with the iPod, both because it's plausible to argue that having an iPod enhances the lure of using P2P to download music (gotta fill all that space!) and because all the major record labels still believe that private sharing of songs from your CDs with friends is copyright infringement. We still disagree with the labels on these points, but the reality is that no court has yet convinced them that their legal theories are flawed. We also threw in Toshiba for making the iPod's hard drive and CNET for showing people how to move the iPod's music files.

Under the Supreme Court's ruling in Sony v. Universal (the Betamax VCR case), devices like the iPod and CD burners are legal as long as they have legal uses—what the Court called "substantial non-infringing uses." This has been the rule in the technology sector for the last 20 years. Billions of dollars and thousands of jobs have depended on it. Industries have blossomed under it. And any case brought against Apple or HP or Dell would be immediately dismissed because of it.

Now Senator Hatch and his allies want to tear down that rule and substitute a new one with the Induce Act. With it, the fact that a device or product has legal uses, even lots of them, is irrelevant. Filing a lawsuit under the Induce Act is like dropping a litigation bomb on any company that gives users products that have even the slightest potential to assist in copyright infringement. Technology companies will avoid being innovative, and investors will avoid supporting new technologies for fear of being sued out of existence based on the possible conduct of their customers. If this bill had been law in 1984, there would be no VCR. If this bill had been law in 1995, there would be no CD burners. If this bill had been law in 2000, there would be no iPod. If this bill becomes law in 2004, we may lose those devices and many more that we haven't even begun to imagine."

It seems that the number of airlines and travel companies sharing passenger information with the Transportation Security Administration (TSA) for testing of the passenger screening program CAPPS II was more than was originally thought.

The EU parliament might like to throw that into the mix of their ECJ case against the Commission and Council of Ministers on the agreement to share EU passenger data with the US? No? Never mind. We saw how lively EU democracy is on software patents. Why should a little matter like handing over personal details of EU citizens to a foreign government (albeit a friendly one in this instance) give rise for concern? Well from my perspective the reason would be just to demonstrate a remote semblance of respectability of the institutions of the EU and their ability to answer basic questions related to the new constitution and its gaurantee of the charter of fundamental rights. Of course the agreement was concluded before the constitution (which, of course, may well fall apart depending on the results of national referenda). But even without the constitution the EU theoretically offers fundamental gaurantees on privacy which in the past have led to the brink of a trade war with the US, on the issue of how US companies would be required to handle data about European citizens flowing into the US.

In March 2000, after nearly two years of negotiations, the EU and the US reached a tentative agreement on the processing of personal data. The EU Data Protection Directive (Article 25) requires that personal data shall not be transferred to a country outside the EU unless that country "ensures an adequate level of protection." The Directive theoretically guarantees a high standard of personal data privacy for EU citizens. The US was considered by the EU to lack an adequate level of protection.

The negotiators were reportedly trying to work out a way for US companies to meet EU standards of privacy. The Europeans agreed to the Americans' proposed "safe harbour." US companies would sign up to this safe harbour by agreeing to follow certain restrictions on how they processed personal data. They would register with the US Department of Commerce and there would be "adequate enforcement" of the restrictions the companies agreed to. The US Commerce Secretary, William Daley, described the agreement as a "carefully constructed and well-implemented system of self-regulation" which could protect privacy rights.

Critics at the time accused the European negotiators of caving in, since self regulation by industry was what they were trying to avoid. Many EU nation states had not implemented the directive at the time of the negotiations, however. The US therefore had a legitimate complaint - how could they be expected to accept data flow restrictions required by EU law but not yet appropriately implemented there? The European Commission, at the time, was in the process of suing Germany, France, the Netherlands, Ireland and Luxembourg in the European court over their failure to implement the directive.

Critics of the agreement on transfer of passenger data have criticised Commissioner Bolkstein, not of caving in, but of deceit and underhand deals with the US in dark smoky rooms. On this occasion, I can understand the critics' point of view.