FFII are concerned that the EU Council may rubber stamp the software patents directive at their meeting later this month.

I've been really busy and Blogger's been playing up in recent weeks. Hence the current sparsity of postings. But you should be staying tuned to Copyfight, EDRi and all the usual suspects.

Privacy International and EDRi have today released their response to the EU consultation on communications data retention. Needless to say it is intensely critical of the proposals. There's a salutory quote included from the European Court on Human Rights

"The distinguishing feature of a blanket data retention requirement is the absence of any reasonable relationship between the intrusion on individual privacy rights and the law enforcement objectives served."

The full report is worth a read. The executive summary follows:

"The following report is a response to the European Commission's Directorate Generals on the Information Society and on Justice and Home Affairs call for comments on a proposed retention regime across Europe. We welcome the intervention of the Commission in this process that has to date been led by some Member States, and previously conducted in a closed manner. We hope that the Commission will re-invigorate this debate, and provide some deliberation on this pressing issue before it is too late.

In this response we argue that any regime for the indiscriminate retention of personal data is hazardous. At a time like this, the European Union should be fulfilling its role to uphold the rights of individuals, as technologies become more invasive, and as laws are increasingly reluctant to protect individual rights. Data retention is an invasive and illegal practice with illusory benefits. And to date, the paths to data retention in Europe have involved illegitimate policy processes.

The retention of personal data resulting from communications, or of traffic data, is necessarily an invasive act. With the progress of technology, this data is well beyond being simple logs of who we've called and when we called them. Traffic data can now be used to create a map of human associations and more importantly, a map of human activity and intention. It is beyond our understanding as to why the EU Presidency and some select EU Member States insist on increasing the surveillance of traffic data even as this data becomes more and more sensitive, concomitant to a decreasing regard for civil liberties.

Claims that the retention of this information is necessary for investigations are not entirely accurate. Security gained from retention may be illusory. It is likely that traffic data that is associated to one individual may actually be linked to activity taken by another, or by a process that is unrelated to the activities of that user. The linking of one individual to a set of actions through checking logs is a tenuous link at best. In an investigation of 'who' visited a website with controversial content, even if the logs are well maintained, there is little certainty that they will lead back to the individuals who are being sought. We may be attributing actions and intentions to innocent individuals instead, which is also an invasion of privacy.

Retention is illegal. Article 8 of the European Convention on Human Rights protects the right to a private life. The indiscriminate collection of traffic data offends a core principle of the rule of law: that citizens should have notice of the circumstances in which the State may conduct surveillance, so that they can regulate their behaviour to avoid unwanted intrusions. Retention would be so extensive as to be out of all proportion to the law enforcement objectives served. Under the case law of the European Court of Human Rights, such a disproportionate interference in the private lives of individuals cannot be said to be necessary in a democratic society.

The process through which EU Member States are attempting to establish retention is illegitimate. Some believe that the mandate for retention was established through Directive 2002/58/EC on Privacy and Electronic Communications. In fact this Directive was passed under problematic circumstances, as were many of the national laws on data retention. Many of these laws were passed in response to terrorism, only for legislators to be shocked to discover that data retention has little to do with investigating terrorism and is more commonly used for common investigations and surveillance. We agree that the policy situation across the EU right now is quite fragmented with some countries with retention and others without. This is because some countries concealed the policy under the guise of terrorism. Others pursued this policy under the veils of silence and ignorance to its ramifications. Some Parliaments have actively rejected the policy. If the Commission calls for the adoption of data retention due to concerns regarding the single market and harmonisation, it will be rewarding these undemocratic actions of some member states whilst ignoring the democratic responses of others.

The process through which the EU is insisting on ensuring that all countries weaken privacy protections to support generalised surveillance is contrary to the principles of an open society."

An alledged Australian software pirate, Hew Raymond Griffith, has been extradited to the US.

Meanwhile, according to CNN,

"The U.S. Department of Justice has asked an appellate court to keep its arguments secret for a case in which privacy advocate John Gilmore is challenging federal requirements to show identification before boarding an airplane."

Have a look at a new blog - Copyfutures and Ernest Miller's new law and IT conversations at the Importance of...

Nice article on the TSA's launch of the replacement for CAPPS II, "Secure Flight".

"Unlike the previous proposal, the new system will only look for known or suspected terrorists, not other law enforcement violators. In addition, it will include a redress mechanism, where people can resolve questions if they believe they have been unfairly or incorrectly selected for additional screening."

Announcements about the death of the CAPPS II passenger screening system by the head of US Homeland Security recently may have been pre-mature. The Washington Post is suggesting that it has been resurrected under a new user friendly name "Secure Flight," and with a new slogan, "Preserving our freedoms."

Jason Schultz is spot on in his comments about the balkanization of digital music. Funny enough, I had just been making exactly the same point in my keynote address to the IEEE Consumer Electronics Symposium 2004. People are going to get fed up having their music players dictate which music they can play and the nonsensical need to buy a separate player for music supplied, for example by Microsoft, Apple or Real. And what happens when you decide to buy a new player that won't play any of your old music?

Stefan Motte from Phillips, in a terrific talk this morning, made the point that the key things for digital consumer electronics devices in the home are usability, seamless integration and interoperability. I wonder how long it will be before the Microsoft/Apple/Real/entertainment business balkanized markets collapse in on themselves. I just hope not too much permanent damage is done in the interim.

Yahoo have failed in their attempt to get a US court to support their position in the Yahoo France Nazi memorabilia case. The majority jusdge in the split opinion said

"Yahoo obtains commercial advantage from the fact that users located in France are able to access its Web site … Yahoo cannot expect both to benefit from the fact that its content may be viewed around the world and to be shielded from the resulting costs... If Yahoo violates the speech laws of another nation, it must wait for the foreign litigants to come to the United States to enforce the judgment before its First Amendment claim may be heard by a U.S. court."

Looking for information and analysis of the MGM v Grokster & Musiccity case?
Copyfight and the Importance of... would be very good places to start.

There are loads of stories around on the Grokster decision. I expect Copyfight will have a round up but just for starters here's one from the NYT and the EFF's take on it.

The 9th circuit appeal court has firmly rejected the entertainment companies' appeal in the Grokster case.

"The Copyright Owners urge a re-examination of the law in the light
of what they believe to be proper public policy, expanding
exponentially the reach of the doctrines of contributory and
vicarious copyright infringement. Not only would such a renovation
conflict with binding precedent, it would be unwise. Doubtless,
taking that step would satisfy the Copyright Owners' immediate
economic aims. However, it would also alter general copyright law in
profound ways with unknown ultimate consequences outside the present
context.
Further, as we have observed, we live in a quicksilver technological
environment with courts ill-suited to fix the flow of internet
innovation. AT&T Corp. v. City of Portland, 216 F.3d 871, 876 (9th
Cir. 1999). The introduction of new technology is always disruptive
to old markets, and particularly to those copyright owners whose
works are sold through well established distribution mechanisms. Yet,
history has shown that time and market forces often provide
equilibrium in balancing interests, whether the new technology be a
player piano, a copier, a tape recorder, a video recorder, a personal
computer, a karaoke machine, or an MP3 player. Thus, it is prudent
for courts to exercise caution before restructuring liability
theories for the purpose of addressing specific market abuses,
despite their apparent present magnitude."

Expect another appeal especially with the INDUCE act in the pipeline.

I don't think Lawmeme's excellent guide to Ernest Miller's dissections of the INDUCE act developments has caught up with his latest offensive. Sen. Orrin Hatch and co. have written to the Register of Copyrights, Marybeth Peters, asking her to take charge of refining the INDUCE act by 7 September 2004.

"Asking Marybeth Peters to play a leadership role with regard to legislative changes to copyright law is like asking Dr. Jack Kevorkian to play a leadership role with regard to legislative changes to euthanasia law...

...Peters is to identify "proposed solutions" to "legitimate concerns." Unfortunately for the tech industry, Peters doesn't think there are any legitimate concerns with regard to the bill, at least according to her testimony: Copyright Office on INDUCE Act (IICA): It isn't Strong Enough. If anything, she thinks the bill is too soft on technology."

Ernest is not impressed.

Simon Jenkins is on David Blunkett's trail again, criticising the home secretary and the court of appeal for relying on evidence, gleaned from torture in foreign parts, to hold terrorist suspects indefinitely.

"SO THE Home Secretary, David Blunkett, is having trouble with his friends, the tabloids. Well, well. For years he has been treating them like a skinhead playing with rottweilers. He has crammed prisons, abused judges, taunted left-wingers and pandered to the mob. Suddenly the snarling beasts turn on their handler and savage him. Before you can say “liberal” a large portion of the Home Secretary’s anatomy is raw flesh.

Where, he might wonder, did the tabloids gather their information about his love life? How rigorous were their sources? From whom was their evidence extracted, and with what bribes and duress? How do these journalists now rate their pledges of respect for human rights? The answers are probably as robust as those that Mr Blunkett deploys against the ten detainees whose case came before the Court of Appeal last week, whom he brands “terrorists”. His victims claimed the evidence against them was gleaned from prisoners who had been tortured. Unlike that in Mr Blunkett’s case, this evidence really matters. These men have been in prison for two years without trial or normal civil rights.

In prison they will stay. Three appeal court judges inexplicably found in favour of Mr Blunkett, albeit one of them with reservations. Lord Justice Laws declared himself “quite unable to see” why the Home Secretary should not rely on evidence “gained by torture”, if the torturers belonged to states “over which he has no power of direction”. Torture is apparently fine so long as the torturers are not British. I sense that this is what might be called an old-fashioned judge.

He then went further and added that he could not even see why Mr Blunkett had a “duty of solemn inquiry as to the interrogation methods used”. If he wants to declare an accused a terrorist, any evidence would presumably do, even if it were scraped off the walls of Abu Ghraib jail.

These detainees are not accused of any act or planned act of terrorism, only of membership of al-Qaeda. They have the option of leaving England and returning to their home country, but they claim that this would be at risk of their lives. They want to stay free in Britain. Since this is in part an immigration case, the appeal court may have considered the burden of proof on the Home Office less than onerous. But that is quite different from liberating the Home Secretary to sweep the torture chambers of the world for accusations against his victims...

...In The Times on Monday a former immigration scrutineer, Sir Brian Barder, attacked the appeal court decision. Surely, he said, the court should have issued “a ringing condemnation of reliance on evidence obtained by torture, wherever and by whomever practised, as a basis for imprisoning people indefinitely and without trial”.

It is scarcely believable that such words need writing in Britain in the 21st century. They do."

I don't always agree with Jenkins but in this instance I find his central arguments to be compelling and persuasive.

Rod Dixon at CircleID has an interesting piece on the domain name dispute which came to light recently between Penguin and the private owner of katie.com. Penguin published a book called katie.com four years ago even though there was a website with the same domain name registered to an individual, Katie Jones.

"In 2000, katie.com was published by Penguin Putnam Publishing; according to the publisher, the book provides an "eye-opening account of teenager's descent into the seductive world of the Internet." Apparently, the publisher successfully took on the ambitious task of publishing a book about the "world of the Internet," yet did so somehow without any awareness that the book's title was identical to a pre-existing domain name. This misstep ordinarily may constitute a minor distraction for a publisher of a book on other topics, but a book about the Internet targeted toward young readers, should likely require a rerun of the printing press with a different book title, if the current domain name holder refuses to sell or license the domain name...

...Unfortunately, individual domain name holders are not widely known to receive compensation for interference with the enjoyment of their intellectual property. Too often, it seems individual domain name holders find their interests viewed as entirely irrelevant...

...legal rules governing property rights in domain names have largely resisted reformulation when directed toward freedom of expression or non-trademark-oriented uses. Hence, Katie Jones not only was without a low cost forum to assert her own rights, but could have been forced to defend a domain name she had lawfully acquired. Some commercial interests have demonstrated an implacable and ferocious appetite for domain names held in non-commercial use by individual domain name holders. In addressing her own circumstance as a domain name holder, Katie Jones indicated that the situation she faced was: "like having your home address made into a book title, and then everyone shows up at your doorstep looking for the main character…Domain name owners have just as much at stake as regular property owners.""

The publisher has now decided to change the title of the book.

The tabloid newspapers in the UK are apparently having a field day with speculation about Home Secretary David Blunkett's sex life. The married woman allegedly involved has understandably asked to be left alone by the media, to protect her family. She and her family certainly should be left alone.

I fear the hacks will use Mr Blunkett's ad nauseum repetition of the "if you've nothing to hide, you've nothing to fear" soundbite as an excuse to hound these unfortunate folk, however.

An NYT op ed slams the INDUCE act proposals.

"But the bill is so loosely worded that it could threaten a host of legal information-sharing practices and technologies. That includes everything from the iPod to automatic online translation. Critics claim, with reason, that this overreaching bill would have deeply chilling effects on technological innovation.
Congress seems instinctively to side with those who instinctively want to put a chokehold on new technologies. It's always easier, after all, to try to protect what appears to be "an absolute, inviolable set of rights" than it is to find equitable new ground to stand on in the rapidly shifting debate over digital copyright."

The EFF has created a parallel version of the state attorneys generals' letter to file sharing companies recently saying their technology was too dangerous. The EFF letter extrapolates from the P2P letter and, replacing p2p with "The Internet", "email," or "the Web" creates a hypothetcial missive to Al Gore, who was reported, when he was Vice President of the US, to have claimed that he invented the Internet.

Clever.

I mentioned yesterday that Apple were considering suing RealNetworks under the DMCA for creating 'Harmony' which facilitates interoperability with the iPod, allowing iPod owners to buy songs from a Real music retailer. It turns out that James Boyle had an article in the FT yesterday about the dispute. And as usual James cut right to the heart of the issue with a terrific analysis.

"You could tell it was a bizarre feud by the statement Apple issued, one strangely at odds with the Palo Alto Zen-chic the company normally projects. “We are stunned that RealNetworks has adopted the tactics and ethics of a hacker to break into the iPod, and we are investigating the implications of their actions under the DMCA [Digital Millennium Copyright Act] and other laws.” What vile thing had RealNetworks done? They had developed a program called Harmony that would allow iPod owners to buy songs from Real’s Music Store and play them on their own iPods. That’s it. So why all the outrage? It turns out that this little controversy has a lot to teach us about the new economy...

...The first lesson of the story is how strangely people use the metaphors of tangible property in new economy disputes. How exactly had Real “broken into” the iPod? It hadn’t broken into my iPod, which is after all my iPod. If I want to use Real’s service to download music to my own device, where’s the breaking and entering? What Real had done was make the iPod “interoperable” with another format...

... Their true sin was trying to understand the iPod so that they could make it do things that Apple did not want it to do. As an ethical matter, is figuring out how things work, in order to compete with the original manufacturers, breaking and entering? In the strange netherland between hardware and software, device and product, the answer is often a morally heartfelt “yes!” I would stress “morally heartfelt”. It is true manufacturers want to make lots of money, and would rather not have competitors. Bob Young of Red Hat claims “every business person wakes up in the morning and says ‘how can I become a monopolist?!’” Beyond that, though, innovators actually come to believe that they have the moral right to control the uses of their goods after they are sold. This isn’t your iPod, it’s Apple’s iPod. Yet even if they believe this, we don’t have to agree.

In the material world, when a razor manufacturer claims that a generic razor blade maker is “stealing my customers” by making compatible blades, we simply laugh. The “hacking” there consists of looking at the razor and manufacturing a blade that will fit. But when information about compatibility is inscribed in binary code and silicon circuits, rather than the moulded plastic of a razor cartridge, our moral intuitions are a little less confident. And all kinds of bad policy can flourish in that area of moral uncertainty...

... second new economy lesson. In a competitive market, Apple would choose whether to make the iPod an open platform, able to work with everyone’s music service, or to try to keep it closed...

... If they attempted to keep it closed, competitors would try to make compatible products, acting like the manufacturers of generic razor blades, or printer cartridges. The war would be fought out on the hardware (and software) level, with the manufacturer of the platform constantly seeking to make the competing products incompatible, to badmouth their quality, and to use “fear, uncertainty and doubt” to stop consumers switching...

... If the consumers got irritated enough they could give up their sunk costs, and switch to another product altogether All of this seems fine, even if it represents the kind of socially wasteful arms race that led critics of capitalism to prophesy its inevitable doom. Competition is good, and competition will often require interoperability.

But thanks to some rules passed to protect digital “content” (such as copyrighted songs and software) the constant arms race over interoperability now has a new legal dimension. The Digital Millennium Copyright Act and equivalent laws worldwide were supposed to allow copyright owners to protect their content with state-backed digital fences that it would be illegal to cut. They were not supposed to make interoperability illegal, still less to give device manufacturers a monopoly over tied products, but that is exactly how they are being used."

The ACLU have issued a report stating that the US government are circumventing the checks and balances on surveillance operations by increasingly using private corporations to gather the information for them. Private companies are not subject to the same restrictions on the gathering of personal information and people trust them more than they trust the government, so are more willing to unquestioningly hand over personal details.

"The Privatization of Surveillance
The U.S. security establishment is rapidly increasing its ability to monitor average Americans by hiring or compelling private-sector corporations to provide billions of customer records. The explosive growth in surveillance by government and business is creating a "Surveillance Industrial Complex" that threatens all of our privacy."

Wired have an article covering the report.

From the Home Affairs select committee report on the UK government's proposed natioal identity card scheme:

"The proposed system is unprecedentedly large and complex. It will contain sensitive personal information on tens of millions of individuals. Any failure will significantly affect the functioning of public and private services and personal and national security. Measures to ensure the integrity of the design, implementation and operation of the system must be built in to every aspect of its development. As we will remark at a number of points throughout this report, the Government's lack of clarity about the scope and practical operation of the scheme, and the nature of the procurement process, does not give us confidence that this will be achieved."