Corner House & CAAT v SFO on BAe-Saudi Corruption heads for House of Lords

The High Court has given the Serious Fraud Office permission to appeal to the House of Lords in the case brought by The Corner House and the Campaign Against the Arms Trade relating to the SFO decision to drop the BAe-Saudi arms sales corruption enquiry.

In their judgement in the High Court on 10th April, Lord Justice Moses and Mr Justice Sullivan severely criticised the SFO's and the government's stance in the affair. From the Corner House:

"The High Court has formally quashed the Serious Fraud Office (SFO) decision to drop its corruption investigation into arms deals between BAE Systems and Saudi Arabia. This follows the Court's ruling on 10th April that the Director of the SFO, acting on government advice, acted unlawfully in stopping its BAE-Saudi corruption investigation in December 2006.

The High Court also gave the SFO permission to appeal to the House of Lords, the UK's highest court, against their ruling of 10th April. Campaign Against Arms Trade (CAAT) and The Corner House, which sought the judicial review of the SFO decision, did not oppose this, because of the public importance of the legal issues raised, but all parties acknowledged that the SFO had not identified any errors in law in the judgment itself.

In granting the appeal, Lord Justice Moses said "This is a paradigm case . . . that relates to the way this country is governed and to basic constitutional principles."

The judges ordered the SFO to pay the costs of the judicial review so far (capped and agreed in January 2008) and, recognising the public service that The Corner House and CAAT are performing, also ordered the SFO to pay all reasonable costs of the appeal, regardless of the outcome, "win, lose or draw."

A joint press release gives more detail about the quashing and the appeal."

Security through fingerprint sensors on laptops: think about it...

Kim Cameron got a new laptop a few weeks ago with a fingerprint security sensor on it.

"A couple of days later, I was at a conference and on stage under pretty bright lights. Glancing down at my shiny new computer, I saw what looked unmistakably like a fingerprint on my laptop’s right mouse button. Then it occurred to me that the fingerprint sensor was only a quarter of an inch from what seemed to be a perfect image of my fingerprint. How secure is that?"

Kim got a colleague at the conference to take a photo of the fingerprint to see if it was usable and was shocked to find that it was (see the original post for the excellent photos). Kim says:

"The net of all of this was to drive home, yet again, just how silly it is to use a “public” secret to identify someone. What kind of a lock was this? It was a lock which conveniently offered any thief the key.

At first my mind boggled at the fact that Toshiba would supply mouse buttons that were such excellent fingerprint collection devices. But then I realized that even if the fingerprint weren’t conveniently stored on the mouse button, it would be easy to find it somewhere on the laptop’s surface.

It hit me that in the age of digital photography, a properly motivated photographer could probably find fingerprints on all kinds of surfaces, and capture them as expertly as Dale did. I realized it was no longer necessary to use special powder or inks or tape or whatever. Fingerprints have become a thing of “sousveillance”."

The Swedish Offentlighetsprincipen

Thanks to David Gerard via the ORG list for for alerting me to the Finnish-Swedish Offentlighetsprincipen in the context of the EU Commission's proposals to change the rules regarding public access to EU documents. The 1996 newsgroup posting by Jon Noring that David refers to has a full explanation of the almost sacred Swedish constitutional principle relating to freedom of access to public documents.

"Swedish law has a legal principle called "Offentlighetsprincip". I've enclosed an edited private e-mail from a Swedish individual (not Zenon, and who prefers to remain anonymous), wherein it describes "offentlighetsprincip". It's an amazing principle...

The offentlighetsprincip is divided in two parts: the right for whoever it
may be, to be present as listener at court and other public proceedings. The
rule is from the 15th century, and is of course no oddity at all. Most legal
systems state the same. But the other part is it: the right, whomever it may
be, to anonymously and without giving any reason, "immediately and on the
spot" read public papers in courts and federal and municipal agencies, and
get copies, and publish them irrespective of the wishes of the original
author.

The offentlighetsprincip is part of the constitution of the Kingdom of
Sweden. It has been since 1766; thus the offentlighetsprincip for public
papers is 22 years older than the US constitution. But as Sweden has
prefered to rewrite instead of using amendments, it has since been rewritten
in 1774, 1809, 1946 and 1976. There is of course also elaborate rules, a
thick law, when public papers must be classified. But the basic principles
from 1766 have never been changed. And when the computers came, data
information became as public as information on paper.

The offentlighetsprincip is divided in two parts: the right for whoever it
may be, to be present as listener at court and other public proceedings. The
rule is from the 15th century, and is of course no oddity at all. Most legal
systems state the same. But the other part is it: the right, whomever it may
be, to anonymously and without giving any reason, "immediately and on the
spot" read public papers in courts and federal and municipal agencies, and
get copies, and publish them irrespective of the wishes of the original
author.

The offentlighetsprincip is part of the constitution of the Kingdom of
Sweden. It has been since 1766; thus the offentlighetsprincip for public
papers is 22 years older than the US constitution. But as Sweden has
prefered to rewrite instead of using amendments, it has since been rewritten
in 1774, 1809, 1946 and 1976. There is of course also elaborate rules, a
thick law, when public papers must be classified. But the basic principles
from 1766 have never been changed. And when the computers came, data
information became as public as information on paper...

And why is the offentlighetsprincip revered by even the poorest citizens?
Because in other countries the journalists are depending on leaks, but when
a whole group of politicians, judges or bureaucrats all are corrupt, there
aren't any. But in Sweden all journalists, it's part of their professional
pride, dig up the facts nevertheless...

With such an effectivness, the offentlighetsprincip is of course hated,
hated, hated among politicians and bureaucrats, but they can't even show the
slightest hint of that opinion, beause in that case, they won't be
reelected. It would be a political suicide."

Read the whole post. Can you imagine, for example, the Speaker of the House of Commons pursuing a court case to keep details of his and other MPs expenses private if such a revered constitutional principle existed in the UK?

People of Lesbos sue Lesbians over name

From AP via Findlaw:

"A Greek court has been asked to draw the line between the natives of the Aegean Sea island of Lesbos and the world's gay women.

Three islanders from Lesbos - home of the ancient poet Sappho, who praised love between women - have taken a gay rights group to court for using the word lesbian in its name.
One of the plaintiffs said Wednesday that the name of the association, Homosexual and Lesbian Community of Greece, "insults the identity" of the people of Lesbos, who are also known as Lesbians.

"My sister can't say she is a Lesbian," said Dimitris Lambrou. "Our geographical designation has been usurped by certain ladies who have no connection whatsoever with Lesbos," he said."

How scanners and PCs will choose London's mayor

The Register is raising concerns about the electronic vote counting for the London mayoral election.

"

But despite all the changes, there are still those who are concerned that introducing technology into the voting process risks compromising the integrity of the vote. One such campaigner is Rebecca Mercuri, an American expert on electronic voting and counting systems.

She is worried that equipment provided by companies with little or no experience in elections could fail to provide an accurate count because of an unintentional design flaw. She cites the example of a US election where the counting system reached a certain number, and then started counting backwards.

"It's not that easy to design [a well planned counting system]," she told us.

But Bennet says he's confident that the machines will return a result that accurately reflects the will of the people, simply because of the huge volumes of test papers that have been scanned. Over the last 18 months, almost one million ballot papers have been counted on test runs, and Bennet is so sure of his system that he is prepared to claim the machines are more accurate than people.

"When we've had to do recounts because of a discrepancy between the machine and manual counts, it has always turned out that the machines are right and the people have made a mistake," he told us.

But Mercuri questions Bennet's confidence in the voting machines. Testing, she says, is only good at spotting the problems that can be forseen. Optical scanners in the US were rejecting ballots that had been marked with gel-ink pens, for example, but this wasn't picked up in testing because no one was looking for it. Only low vote totals alerted officials to the problem.

Pre-election testing is also no good at spotting machines that develop a fault, or have been compromised on the day. It might be possible, Mercuri contends, for a hidden piece of code to be activated, or for a machine to be subverted by scanning a particular bitmap image, or even by an engineer pressing a particular sequence of keys. These so-called Easter eggs are common in electronic equipment, she says, as manufacturers commonly install them to allow engineers access to configuration or diagnostic settings...

Bennet says that such an audit would be "meaningless" and bad for voter confidence. This is because the rules that govern the counting procedure do not allow for both a manual and electronic count...

"We could do a sample manual recount, but if it turned up a problem, we wouldn't be able to do anything about it, which would be the quickest way to collapse voter confidence in the result," Bennet told us.

This is an anathema to campaigners like Mercuri. "The law should always include some percentage of manual audit and there always must be a way that a problem with the check should trigger an investigation, possibly resulting in the discarding of the electronic totals.

And she is not the only one who thinks the electronic count should be audited. Becky Hogge, executive director of the Open Rights Group, says that ORG is campaigning for the law to be changed to make a manual recount of a statistically significant sample to be mandatory in all electronically counted elections."

PIJIP 301 Watch

The Programme on Information Justice and Intellectual Property (PIJIP) at American Univerisity is "creating a new project to analyze US bilateral trade pressures against countries perceived to have inadequate intellectual property protection." They have produced a Snapshot of Industry Influence on the 2008 Special 301 Report (pdf).

The degree of apparent influence is unsurprising since the US Trade Representative's office, tasked with producing the section 301 report, has no resources to do the necessary empirical research and has since the beginning relied on outside sources - mainly the IP industries - to supply data. Peter Drahos and John Braitwaite outline the story of the mutual interdependence of the USTR and the IIPA in particular in their terrific book, Information Feudalism: Who Owns the Knowledge Economy.

The PIJIP folks in looking at the 2008 report note:

" Most of the countries which the industry groups USTR to place in the
Special 301 Report are in it.
- 86% of the nations IIPA singled out are in the USTR report.[2]
- 75% of the nations PhRMA singled out are in the USTR report. [3]"

The tables summarising the comparisons are available at the PIJIP wewbsite.

Cheaper school texts for Indonesia

A government minister in Indonesia, it seems, is intent on making school text books more accessible.

"How do you make school textbooks cheaper? The government has turned to a combination of old traditions and modern technology to beat book prices, considered one of the sources for the high cost of education in this country. Let's hope it works.

The new book policy, introduced in 2005 but for some reason still not widely known to the public, involves lengthening the shelf life of a book to a minimum of five years, buying up the copyrights of as many school textbooks as the government can afford and uploading them in digital form to the Internet and making them available for free download to those who need them.

National Education Minister Bambang Sudibyo, who explained the policy at a news conference on Friday, acknowledged there are bound to be winners and losers as a result of any new policy. In the case of the new book policy, the winners are parents and students through cheaper books. The biggest losers are book publishers and bureaucrats at the National Education Ministry who for years have colluded to make book prices expensive.

"There isn't going to be any monopoly over school textbooks. There isn't even going to be oligopolies," the minister said.

Extending the life of school textbooks to five years from the present one year would mean that books could be passed down to younger siblings, donated to poor families or sold to secondhand bookstores. The policy would also revive used textbook markets around the country."

Thanks to Vera Franz via the A2K list for the link.

Rowntree repro

The Joseph Rowntree Reform Trust yesterday published a report entitled "On the Purity of Elections in the UK: Causes for Concern" The key findings are listed in the executive summary:

"• Experienced election observers have raised serious concerns about how well UK election
procedures measure up to international standards.
• There have been at least 42 convictions for electoral fraud in the UK in the period
2000–2007.
• Greater use of postal voting has made UK elections far more vulnerable to fraud and
resulted in several instances of large-scale fraud.
• There is widespread, and justifiable, concern about both the comprehensiveness and the
accuracy of the UK’s electoral registers – the poor state of the registers potentially
compromises the integrity of the ballot.
• There is a genuine risk of electoral integrity being threatened by previously robust
systems of electoral administration having reached ‘breaking point’ as a result of
pressures imposed in recent years.
• Public confidence in the electoral process in the UK was the lowest in Western Europe in
1997, and has almost certainly declined further as a result of the extension of postal
voting.
• The benefits of postal and electronic voting have been exaggerated, particularly in
relation to claims about increased turnout and social inclusion.
• There is substantial evidence to suggest that money can have a powerful impact on the
outcome of general elections, particularly where targeted at marginal constituencies
over sustained periods of time.
• Outside of ministerial circles, there is a widespread view that a fundamental overhaul of
UK electoral law, administration and policy is urgently required."

And the conclusions:

"The relative lack of research into electoral processes in theUK, particularly prior to 2000, is striking.
In particular, it would appear that the previously widespread assumption that British elections
were ‘free and fair’ has meant that there has effectively been no research on electoral
malpractice in the UK (Stewart, 2006).Moreover, despite the enormous volume, and high quality,
of research conducted and commissioned by the Electoral Commission since 2000, significant
areas of the evidence base remains virtually non-existent. This dearth of research has
constituted a major failing in the context of rapidly changing electoral policy in the UK. All too
often, genuine concerns have been dismissed on the basis that there is ‘no evidence’ to underpin
the claims beingmade or that the only evidence available ismerely anecdotal. In actual fact,
the evidence base is arguably too deficient to establish anything other than ‘working hypotheses’
about a number of key issues such as the state of the electoral registers or trends in electoral
malpractice in the UK.

While there is no hard evidence suggesting a significant increase in electoral malpractice since
2000, the extension of postal voting has significantly enhanced the vulnerability of UK elections
to large-scale fraud. It is equally clear that absentee voting of any form significantly
increases the risk of fraud and the scale of fraud that it potentially possible. The Birmingham election
court of 2005 demonstrates that the control of a major city council or the outcome of a parliamentary
contest could be influenced by the scale of fraud that was rendered possible by postal
voting. Electoral legislation has had to play ‘catch up’ with this reality in recent years, although
there is widespread agreement that the provisions introduced by the Electoral Administration
Act 2006 still fall short of what is required. As such, it is difficult to refute the view recently
expressed by the former Chair of the Committee on Standards in Public Life that the government
appears to be ‘in denial’ about the challenges to the integrity of UK elections.

Reforms introduced with the intention of raising turnout have,without doubt, dented public confidence
in the electoral system,which as already low by European standards. Instead of engaging with
such concerns, the government reiterated its determination in November 2007 to “further
develop our electoral modernisation strategy”, using existing legislative provisions and further
piloting of alternative electoral arrangements. It is the centrality of the concern to find a relatively
‘quick fix’ to the problem of declining turnouts, particularly among ministers, that has
caused such a variety of genuine concerns, and valid evidence, to be overlooked. Randall (2005,
p.409) has argued the consistent tendency to refute the validity of such concerns suggests that
“group think was apparent in the way in which the reform of the system was proposed, accepted
and adopted in the late 1990s”. Most significantly, the likelihood of such fraud occurring
could have been predicted on the basis of evidence of growing proxy vote fraud during the 1990s.

At the same time, there is an urgent need for all those involved in UK elections to accept that
the causes of low turnout are far more fundamental that the extent to which voting procedures
are ‘modern’ or ‘convenient’, although the role of such factors should not be dismissed entirely.
Ironically, however, some of the core reasons for declining turnout may well arise from the
patterns of party funding that have become clearer as a result of the requirements of PPERA
2000. In particular, emerging evidence points to the interplay between the ‘First Past the Post’
system of elections and the geographical contrasts in local campaign spending as a potentially
significant factor in explaining low turnout in many constituencies. Appendix A to this report
presents a brief case study of the 2005General Election on Merseyside,which highlights the possible
relationship between turnout and geographical variations in local campaign spending.
One of the most damaging legacies of these reforms has been their negative impact on electoral
administration. As the Electoral Commission (2007c) state: “in many areas of the UK we
have noted concerns that the current structure for the delivery of electoral administration is
close to breaking point and we believe it is insufficiently robust and coordinated to meet the
challenges of elections in the twenty-first century”. However, the extent to which these issues
have been considered seriously by ministers and civil servants is difficult to gauge. Certainly, it
would appear that little account was apparently taken of the fragile state of electoral administration
arrangements in the Prime Minister’s initial plans to call a snap general election. The
nature of the ‘lucky escape’ represented by the ‘General Election that never was’ is underpinned
by the fact that the conclusions reached in this report reinforce the findings of a number of recent
reviews and commentaries on British electoral procedures.As such, the recommendations of the
Committee on Standards in Public Life’s review of the work of the Electoral Commission, as well
as the Commission’s subsequent response to these recommendations, and to the Gould report
on the Scottish elections in 2007, provide at least part of the route map towards future reform.
The Electoral Commission has signalled its intention to lead a detailed review of the current legal
and policy frameworks for elections in the UK. This is a welcome initiative and, outside of ministerial
circles, there is widespread appetite for such a debate.

It would be presumptuous to seek to pre-empt the conclusions which may be reached by the
Electoral Commission’s review. However, in relation to legislative frameworks, the possibility
cannot be dismissed that root and branch reform of British electoral law and administration is
required, as opposed to further consolidation of legislation and administrative procedures originating
in the nineteenth century. The nature of this task may be less onerous than it would seem.
It has been widely noted in recent reviews of UK election procedures that many viable solutions
to the problems that have emerged in recent years are already in place in one part of the UK. In
parallel with the broader reviews of electoral processes in the UK carried out after Labour came
to power in 1997, separate reviews were undertaken examining the issues arising from the experience
of elections in Northern Ireland. These reviews included the report of the Northern Ireland
Affairs Select Committee (1998) on Electoral Malpractice in Northern Ireland and the Northern
Ireland Office’s (1998) report Administering Elections in Northern Ireland. These inquiries were
undertaken because of a widespread concern that, in contrast to the rest of the UK, electoral
malpractice remained widespread in Northern Ireland, despite the measures introduced in the
Elections (Northern Ireland) Act of 1985. Yet despite the widespread perception that electoral
malpractice was taking place in specific parts of the province, concrete evidence of fraud proved
elusive...

Despite the lack of clear evidence, the Northern Ireland Select Committee took the view that it
was likely that electoralmalpractice was a serious problemin Northern Ireland and required the
introduction of urgent measures to minimise the scope for ‘vote stealing’. At the centre of this
analysis was a concern about the extent of inaccuracies in the electoral register, particularly the
‘inflation’ of the register throughmultiple and false entries. The Select Committee recommended
measures to improve the accuracy of electoral registers and tighter controls over absentee
voting in Northern Ireland. As a result, the provisions in the Representation of the People Act
2000 for absentee voting (postal voting on demand) and for electoral pilots were not extended
toNorthern Ireland. Instead, the recommendations of the Select Committeewere translated into
the 2001 White Paper ‘Combating Electoral Fraud in Northern Ireland’ and ultimately formed
the basis for the Electoral Fraud (Northern Ireland) Act 2002...

...over the past decade, electoral reforms introduced in Northern Ireland
have provided formore accurate electoral registers, strengthened the role of electoral administration,
sharply reduced accusations ofmalpractice, and raised public confidence in the electoral
process. Introducing the second reading of The Electoral Fraud (Northern Ireland) Bill in the
House of Commons on 10 July 2001, Desmond Browne MP, the Parliamentary Under-Secretary
of State for Northern Ireland, justified the new measures in the following terms:

“There has been growing concern about the perceived level of electoral malpractice in Northern
Ireland. The Government have a commitment to protecting the right to free and fair elections.
Of course, electoral fraud is a crime. Electoral abuse is an affront to democracy and we are
determined to combat it wherever it occurs. If there is a high level of abuse, or even if people
only fear that that is the case, the democratic process will be under threat.We do not want voters
in Northern Ireland to become disillusioned with politics because they fear that elections
are unfair.” (Hansard, 10 July 2001, Column 688)

Seven years on, very few of those involved in administering elections in the UK would be likely
to quibble if the very same words were used to justify significant change to electoral law in the
rest of the country."

Meanwhile ORG will be monitoring the e-count at this weeks local and mayoral elections in London.

"The Open Rights Group (ORG) will send 30 official monitors to observe the elections for the mayor and members of the Greater London Assembly (GLA).

Under an agreement with the Electoral Commission and London Elects, which manages the election on behalf of the GLA, they will monitor polling stations, and activities at the three sites where the count will take place.

ORG opposes the introduction of electronic voting in UK elections, and recommends that all electronic counts be subject to a random manual audit on count day. In May of last year it monitored e-voting and e-counting in local elections in England and Scotland, following which it published a highly critical report."

"Home Office guidance misleading" on Phorm says FIPR

The Foundation for Information Policy Research (FIPR) sent an open letter to the Home Secretary, Jacqui Smith, earlier this week noting that Home Office guidance on the Phorm webwise system deployed is misleading.

"Dear Secretary of State,

The Phorm “Webwise” System
Interception of Communications

In February 2008 your department began to circulate to interested parties a
note addressing the question of whether the operations of Internet Service
Providers in scrutinising their customers’ web browsing for the purposes of
targeted online advertising involved the interception of communications, and
whether it was lawful if it did. On 11th March Mr Simon Watkin of your
department helpfully published that note on the ukcrypto mailing list. In
response to questions about the note, he made the point that the note was not,
and did not purport to be, based upon a detailed technical examination of any
particular technology. The purpose of this letter is to explain why that note
should be withdrawn.

Phorm Inc have announced that they treat the statement as confirming the
lawfulness of their proposed operations in the UK, and the Information
Commissioner has stated that in examining the data protection aspects of Phorm’s
proposed operations he will not take account of matters covered by the Home
Office statement. And after it emerged that BT had conducted secret trials of the
service in 2006 and 2007, complaints to the Avon and Somerset police about
illegal interception were met with a refusal to investigate them, on the basis that it
was a matter for the Home Office.

A detailed technical analysis of the Phorm system by Dr Richard Clayton is
now available which sheds much new light on its proposed operations. A
detailed legal analysis by Nicholas Bohm has also now been published. These
documents are at:

Technical analysis: http://www.cl.cam.ac.uk/~rnc1/080404phorm.pdf

Legal analysis: http://www.fipr.org/080423phormlegal.pdf

The documents show that the operation of Phorm’s systems involve:

• interception of communications, an offence contrary to section 1 of the
Regulation of Investigatory Powers Act 2000

• fraud, an offence contrary to section 1 of the Fraud Act 2006, and
• unlawful processing of sensitive personal data, contrary to the Data
Protection Act 1998

The documents also highlight a number of technical errors as well as some very
significant oversights in the Home Office note that was circulated in February.
We therefore urge you to make it clear to Phorm, to such ISPs as may have
consulted the Home Office, to the Information Commissioner, and to chief
officers of police:

• that the Home Office does not condone illegal interception for the
purposes of targeted online advertising,

• that the law is for the courts and not for the Home Office to decide, and
that it is for the police and prosecuting authorities to investigate reports of
crime and make decisions about prosecutions without deferring to the
views of the Home Office, and

• that where complaints under the Data Protection Act are concerned, it is
for the Information Commissioner and not the Home Office to investigate
whether the data processing involved in targeted online advertising
amounts to illegal interception.

Your department’s note can now be seen to be significantly incomplete
and dangerously misleading. We call on you to withdraw it.

We have provided copies of this letter to Mr Simon Watkin in your
department and to the Information Commissioner.

Yours sincerely,

Nicholas Bohm

Richard Clayton"

Are formal education systems systematically stifling creativity?

Ken Robinson gave a wonderful talk at TED last year on how formal education stifles creativity.



It came to mind when I got a note from a colleague this morning saying a paper I had written had been rejected by the editors of the particular journal that was considering it - one of a number of boxes I failed to tick was that both reviewers didn't approve of the conversational writing style and referencing - and I began thinking again about the degree of narrow rigidity associated with whole rafts of our educational systems from primary school right through to the job(/s) I've been doing for the Open University for many years. Anyway enjoy Robinson's talk - highly recommended when you have a spare 20 minutes.

Update: The Wikipedia page on Gillian Lynne who Robinson mentions in his talk is worth a browse.

Devalued

It seems that the value of my blog has crashed and burned in the manner of a dodgy mortgages market. Once rated at $76 million by Cyberwire it has now slumped to a mere $98.

Publishers Sue Georgia State on Digital Reading Matter

I haven't caught up with the full details of this one yet: Publishers Sue Georgia State on Digital Reading Matter

" Three prominent academic publishers are suing Georgia State University, contending that the school is violating copyright laws by providing course reading material to students in digital format without seeking permission from the publishers or paying licensing fees.

In a complaint filed Tuesday in United States District Court in Atlanta, the publishers — Cambridge University Press, Oxford University Press and Sage Publications — sued four university officials, asserting “systematic, widespread and unauthorized copying and distribution of a vast amount of copyrighted works” by Georgia State, which the university distributes through its Web site."

But it looks as though Georgia State University takes a liberal rather than a risk averting view of fair use. The publishers are seeking an injunction but not damages and it will be really interesting to watch.

Jim Gibson's Risk Aversion and Rights Accretion in Intellectual Property Law is recommended background reading. Abstract:

"Intellectual property’s road to hell is paved with good intentions. Because liability is difficult to predict and the consequences of infringement are dire, risk-averse intellectual property users often seek a license when none is needed. Yet because the existence (vel non) of licensing markets plays a key role in determining the breadth of rights, these seemingly sensible licensing decisions eventually feed back into doctrine, as the licensing itself becomes proof that the entitlement covers the use. Over time, then, public privilege recedes and rights expand, moving intellectual property’s ubiquitous gray areas into what used to be virgin territory—where risk aversion again creates licensing markets, which causes further accretion of entitlements, which in turn pushes the gray areas even farther afield, and so on. This “doctrinal feedback” is not a result of changes in the positive law but is instead rooted in longstanding, widely accepted doctrine and prudent behavior on the part of everyone involved. And because feedback is so ingrained in established law and practice, its various cures tend to create more problems than they solve. In the end, however, subtle changes in doctrine’s use of licensing information provide a normatively neutral solution."

Also Why the Customer Isn’t Always Right: Producer-Based Limits on Rights Accretion in Trademark by Rebecca Tushnet and The ‘Why’ of Markets: Fair Use and Circularity by Wendy Gordon, also in the Yale Law Journal.

The reality of life for an artist in the long tail

There's been a lot of theory about creative artists not needing to derive revenues from copyright and doing it instead from t-shirt sales, concert tours and voluntary donations. Robert Rich has written to Kevin Kelly in response to the latter's 1000 true fans essay, to outline the realities of life for just one artist struggling in the long tail.

His story should be compulsory reading for copyright reformists, industry executives, digital rights activists and indeed anyone with an interest in creative culture. There are no simple answers to the upheaval the copyright landscape has been experiencing.

Rambus, Eircom developments

From SiliconValley.com:

"A month after a San Jose jury exonerated Los Altos-based Rambus from claims that it had engaged in anti-competitive practices, a federal appeals court today came to the same conclusion.

The U.S. Court of Appeals for the Washington D.C. Circuit overturned a Federal Trade Commission determination that Rambus - whose memory-chip technology is inside most personal computers - tried to monopolize the memory-chip market.

The FTC had found in 2006 that Rambus acted deceptively to obtain patents for its dynamic random access memory chips. But in its ruling today, the appeals court said "the commission failed to demonstrate that Rambus inflicted any harm on competition," and the court chided the agency for having "taken an aggressive interpretation of rather weak evidence.""

And via RTE:

"Eircom has rejected claims by four major record companies that it, as the largest broadband internet service provider in the State, must bear some liability for the illegal free downloading of music by computer users.

The companies have claimed Eircom's networks are being used 'on a grand scale' for illegal downloading.

Mr Justice Peter Kelly said today he expected to fix a July date for the hearing of the unique action brought by the record companies against Eircom. The action is the first here aimed at internet service providers, rather than individual illegal downloaders, and reflects growing concern within the music industry about the scale and cost of illegal downloading...

Mr Justice Kelly was told by Mr Paul Coughlan, for Eircom, there would be considerable technical evidence in the case relating to the claims that his side was failing to remove copyright infringing material from its systems. Eircom claims the companies have failed to identify such 'infringing material' and, if they have identified such material, then Eircom claims such material cannot be removed without damaging Eircom's systems/equipment or internet services...

Mr Willie Kavanagh, managing director of EMI Ireland and chairman of the Irish Recorded Music Association (IRMA), has said that, because of illegal downloading and other factors, the Irish music industry is experiencing 'a dramatic and accelerating decline' in income."

Thanks to Michael Geist for the pointers.

3 strikes striking out?

Michael Geist reckons the three strikes policy may well be on the way out after the Swedish government and European parliament's explicit rejection of the approach in recent weeks.

"In recent weeks, however, it would appear that governments are beginning to have sober second thoughts. After a Swedish judge recommended adopting the three strikes policy, that country's ministers of justice and culture wrote a public opinion piece setting out their forthcoming policy that explicitly excluded the three strikes model.

Earlier this month, the European Parliament delivered an even stronger rejection. At issue was the Bono Report on the Cultural Industries, a major cultural policy initiative headed by French member of parliament Guy Bono. While the Bono Report was expected to pave the way for a pan-European three strikes policy, the report may have had the opposite effect."

High Court rules UK SFO termination of BAe-Saudi investigation illegal

The Campaign Against the Arms Trade and The Corner House have won their legal case over the UK Serious Fraud Office's termination of its investigation of corruption involved in BAe's arms sales to Saudia Arabia. In a long, detailed and meticulous judgement Lord Justice Moses and Mr Justice Sullivan severely criticise the government's stance in the affair. Extract:

"

2. Between 30 July 2004 and 14 December 2006 a team of Serious Fraud Office lawyers, accountants, financial investigators and police officers carried out an investigation into allegations of bribery by BAE Systems plc (BAE) in relation to the Al-Yamamah military aircraft contracts with the Kingdom of Saudi Arabia. On 14 December 2006 the Director of the Serious Fraud Office announced that he was ending the SFO's investigation.
3. In October 2005 BAE sought to persuade the Attorney General and the SFO to stop the investigation on the grounds that its continued investigation would be contrary to the public interest: it would adversely affect relations between the United Kingdom and Saudi Arabia and prevent the United Kingdom securing what it described as the largest export contract in the last decade. Despite representations from Ministers, the Attorney General and the Director stood firm. The investigation continued throughout the first half of 2006.
4. In July 2006 the SFO was about to obtain access to Swiss bank accounts. The reaction of those described discreetly as "Saudi representatives" was to make a specific threat to the Prime Minister's Chief of Staff, Jonathan Powell: if the investigation was not stopped, there would be no contract for the export of Typhoon aircraft and the previous close intelligence and diplomatic relationship would cease.
5. Ministers advised the Attorney General and the Director that if the investigation continued those threats would be carried out; the consequences would be grave, both for the arms trade and for the safety of British citizens and service personnel. In the light of what he regarded as the grave risk to life, if the threat was carried out, the Director decided to stop the investigation.
6. The defendant in name, although in reality the Government, contends that the Director was entitled to surrender to the threat. The law is powerless to resist the specific and, as it turns out, successful attempt by a foreign government to pervert the course of justice in the United Kingdom, by causing the investigation to be halted. The court must, so it is argued, accept that whilst the threats and their consequences are "a matter of regret", they are a "part of life".
7. So bleak a picture of the impotence of the law invites at least dismay, if not outrage. The danger of so heated a reaction is that it generates steam; this obscures the search for legal principle. The challenge, triggered by this application, is to identify a legal principle which may be deployed in defence of so blatant a threat. However abject the surrender to that threat, if there is no identifiable legal principle by which the threat may be resisted, then the court must itself acquiesce in the capitulation...

57. But to describe the claimants' application as a challenge either to the relevance of national security to the decision of the Director, or to the Government's assessment of the risk to national security misses the essential point of this application. The essential point, as we see it, derives from the threat uttered, it is said, by Prince Bandar to the Prime Minister's Chief of Staff. The nature and implications of that explicit threat have a significant impact on this application. The challenge was originally resisted, in part, on the basis that the Director was entitled to discontinue the investigation as a result of the very grave threats to national and international security (see e.g. Detailed Grounds of Resistance § 10). But there is an ambiguity in the use of the word threat in that context. Threat as used in response to the claimants' original challenge meant no more than risk. The Director's decision was taken after assessment of the risk to security. But the grounds of resistance did not mention the fact that representatives of a foreign state had issued a specific threat as to the consequences which would flow from a refusal to halt the investigation. It is one thing to assess the risk of damage which might flow from continuing an investigation, quite another to submit to a threat designed to compel the investigator to call a halt. When the threat involves the criminal jurisdiction of this country, then the issue is no longer a matter only for Government, the courts are bound to consider what steps they must take to preserve the integrity of the criminal justice system.
58. The constitutional principle of the separation of powers requires the courts to resist encroachment on the territory for which they are responsible. In the instant application, the Government's response has failed to recognise that the threat uttered was not simply directed at this country's commercial, diplomatic and security interests; it was aimed at its legal system. In written argument, the Director suggested that we should attach significance to the fact that the threat was not directed against him. But it was. While he, personally, was not being threatened with any adverse consequences, the threat was effectively being made to him, in his capacity as Director, and in relation to his statutory functions. The Government acted merely as a conduit, passing the threat on to him with an assessment of the danger should it be carried out. That threat was made with the specific intention of interfering with the course of the investigation. The Saudis knew what was proposed: the SFO intended to inspect Swiss bank accounts. Those who uttered and adopted the threat intended to prevent the course which the SFO wished to pursue. It is unlikely that so blatant a threat would have been made had those responsible not believed that it might well succeed.
59. Had such a threat been made by one who was subject to the criminal law of this country, he would risk being charged with an attempt to pervert the course of justice. The course of justice includes the process of criminal investigation (R v Cotter [2002] 2 Cr App R. 29 at § 30 and 31). But whether or not a criminal offence might have been committed, the essential feature is that it was the administration of public justice which was traduced, it was the exercise of the Director's statutory powers which was halted.
60. Threats to the administration of public justice within the United Kingdom are the concern primarily of the courts, not the executive. It is the responsibility of the court to provide protection...

74. 
    
75. The legal relationships of the different branches of government, and the separation of powers depend on internal constitutional arrangements. They are of no concern to foreign states (see Lord Millett in R v Lyons [2003] 1 AC 976 at § 105).
76. Those decisions were not concerned with threats to the administration of justice within the United Kingdom. Such threats, as we have sought to demonstrate, are particularly within the scope of the courts' responsibility. It is difficult to identify any integrity in the role of the courts to uphold the rule of law, if the courts are to abdicate in response to a threat from a foreign power.
77. Mr Sales' submission appears to us not to be one of principle but rather one of practicality: resistance is useless, the judgement of the Government is that the Saudi Arabian government will not listen and the authorities in the United Kingdom must surrender. That argument reveals the extent to which the Government has failed to appreciate the role of the courts in upholding and protecting the rule of law.
78. The courts protect the rule of law by upholding the principle that when making decisions in the exercise of his statutory power an independent prosecutor is not entitled to surrender to the threat of a third party, even when that third party is a foreign state. The courts are entitled to exercise their own judgment as to how best they may protect the rule of law, even in cases where it is threatened from abroad. In the exercise of that judgment we are of the view that a resolute refusal to buckle to such a threat is the only way the law can resist...

80. Certainly, for the future, those who wish to deliver a threat designed to interfere with our internal, domestic system of law, need to be told that they cannot achieve their objective. Any attempt to force a decision on those responsible for the administration of justice will fail, just as any similar attempt by the executive within the United Kingdom would fail...

87. ... There is no evidence whatever that any consideration was given as to how to persuade the Saudis to withdraw the threat, let alone any attempt made to resist the threat. The Director did not himself consider this issue. His assessment of the threat and its consequences relied on the advice of others. There is nothing to suggest that those advising him on this issue had made any attempt to resist the threat. They merely transmitted the threat to the Director, and explained the consequences if it was carried out. When this question was raised, in argument, Mr Sales responded that that issue was not one which the defendant had come to court to meet. Moreover, he suggested the court should assume that due consideration had been given as to whether the Saudis might be persuaded to withdraw their threat and as to how its consequences might be avoided...

101. Secondly, as this case demonstrates, too ready a submission may give rise to the suspicion that the threat was not the real ground for the decision at all; rather it was a useful pretext. It is obvious, in the present case, that the decision to halt the investigation suited the objectives of the executive. Stopping the investigation avoided uncomfortable consequences, both commercial and diplomatic. Whilst we have accepted the evidence as to the grounds of this decision, in future cases, absent a principle of necessity, it would be all too tempting to use a threat as a ground for a convenient conclusion. We fear for the reputation of the administration of justice if it can be perverted by a threat. Let it be accepted, as the defendant's grounds assert, that this was an exceptional case; how does it look if on the one occasion in recent memory, a threat is made to the administration of justice, the law buckles? The Government Legal Service has every reason to be proud of its reputation for giving independent and, on occasion, unpalatable advice; but can that be maintained if in exceptional cases, when a threat comes from a powerful and strategically important ally, it must yield to pressure? Our courts and lawyers have the luxury and privilege of common law and statutory protection against power which threatens the rule of law. All the more important, then, that they provide support and encouragement to those in a less happy position. How do they do so, if they endorse surrender, when in Uganda the courts are forced to resist when those whom they have released on bail are re-arrested on the court-room steps by armed agents of the executive, or when the Chief Justices of Fiji and Pakistan are deposed by military rulers?
102. The Director failed to appreciate that protection of the rule of law demanded that he should not yield to the threat. Nor was adequate consideration given to the damage to national security and to the rule of law by submission to the threat. No-one took any steps to explain that the attempt to halt the investigation by making threats could not, by law, succeed. The Saudi threat would have been an exercise in futility, had anyone acknowledged that principle. We are driven to the conclusion that the Director's submission to the threat was unlawful."

The description of the facts of the case by Lord Justice Moses is the best I've seen anywhere. Meanwhile the government has not been idle. As part of the Constitutional Renewal Bill they have included some provisions related to this case, which some legal commentators suggest would make it impossible for this kind of judicial review to be pursued in the future. So success in the High Court may turn out to be a pyrrhic victory for the CAAT and the Corner House.

If you'd like a nice summary, look no further than Ruthie's Law.

University patent managers versus developing countries

From James Love via the Huffington Post blog: University patent managers versus developing countries

"Officials charged with managing patent portfolios in U.S. universities have found a new cause. In addition to opposing patent reform in the US Congress, they are opposing proposals being discussed in the World Health Organization that are aimed at increasing R&D for neglected diseases and other global health needs, and expanding access to new medicines in developing countries.

On April 16, the Association of University Technology Mangers (AUTM) asked its members to "Sign the Institute for Policy Innovation's Open Letter to the World Health Organization. . . in advance of the WHO's Intergovernmental Working Group (IGWG) on Public Health, Innovation and Intellectual Property...

The letter is part of a PR campaign by the pharmaceutical industry to stop the introduction of new models for supporting R&D for new medicines, or more transparency of the system...

One can understand why big pharma does not want a debate on new models for financing innovation -- if prizes work for Chagas disease or TB diagnostics, maybe the idea will spread to more lucrative markets. For lots of the wrong reasons, big pharma wants to avoid a system that links their rewards to actual impacts on health outcomes, and which enables generic competition of products.

But why would University Technology Managers side with big pharma in the WHO debates? Do they really think the current system is working well in developing countries?"

Innocent photographer or terrorist?

From the BBC: Innocent photographer or terrorist?

The hassling of people taking photographs in public places has crossed the pond.

"Misplaced fears about terror, privacy and child protection are preventing amateur photographers from enjoying their hobby, say campaigners.

Phil Smith thought ex-EastEnder Letitia Dean turning on the Christmas lights in Ipswich would make a good snap for his collection.

The 49-year-old started by firing off a few shots of the warm-up act on stage. But before the main attraction showed up, Mr Smith was challenged by a police officer who asked if he had a licence for the camera.

After explaining he didn't need one, he was taken down a side-street for a formal "stop and search", then asked to delete the photos and ordered not take any more. So he slunk home with his camera...

Austin Mitchell MP has tabled a motion in the Commons that has drawn on cross-party support from 150 other MPs, calling on the Home Office and the police to educate officers about photographers' rights."

JK Rowling testifies against HP Lexicon author

It seems I may have been wrong about JK Rowling not supporting Warner Brother's action against the Harry Potter Lexicon folks. According to the NYT last week Ms Rowling testified against RDR books, the company producing the printed version of the website.

"Dressed in a black dress and pinstriped suit, Ms. Rowling harshly criticized Mr. Vander Ark and his Lexicon manuscript, calling it a compilation of phrases and facts that were taken from her book and rewritten “without quotation marks around it,” and saying the manuscript was “sloppy” and “lazy.” Besides stepping on her plans to publish her own encyclopedia, she said, the Lexicon manuscript was also “derivative” and “riddled with errors.”

“What does it add?” she asked while on the stand. “The idea of my readership parting with their or their parents’ hard earned cash for this — I think it’s a travesty.

“My prime concern, if not my only concern,” she added later, “is these characters who have meant so much to me and continue to mean so much to me over a very long period of time. It’s very difficult for someone who is not a writer to understand.”

[...]

when RDR Books announced last fall that it had paid Mr. Vander Ark a small advance to create a print version of his site, Ms. Rowling and Warner Brothers objected. Ms. Rowling and her lawyers argued that RDR Books was crossing a line by seeking to profit from “The Harry Potter Lexicon,” which they say is little more than a repackaging of Ms. Rowling’s original material. And rather than writing an eighth installment of the Harry Potter series, Ms. Rowling has said, she planned on publishing a Harry Potter encyclopedia of her own and donating the proceeds to charity — an effort that would be severely impeded if Mr. Vander Ark published his Lexicon.

[...]

The publisher also argues that Lexicon follows a long tradition of literary commentary. “For hundreds of years, everybody has agreed that folks are free to write companion guides,” Anthony Falzone, executive director of the Fair Use Project at Stanford Law School and one of RDR’s lawyers, said in an interview. “This is the first time that anybody has argued seriously that folks don’t have the right to do that.”"

As always these cases tend to be more complicated than initial reports suggest but it is certainly one to watch closely.

Update: Christopher Caldwell, writing in the FT, has little sympathy for J.K. Rowling and more than a little for the H.P. Lexicon creator, Steven Vander Ark.

"Lawyers at Stanford University Law School's Fair Use Project, who are defending Mr Vander Ark pro bono, sought to show in three days of testimony this week that the Lexicon constitutes "fair use" of Ms Rowling's work. It is a reference guide, of the sort that is familiar (and indispensable) to anyone who has taken a deeper interest in Balzac, Proust, Faulkner or Star Trek . Ms Rowling "appears to claim a monopoly on the right to publish literary reference guides and other non-academic research relating to her own fiction", according to Mr Vander Ark's lawyer...

Whether the lexicon violates "fair use" depends, according to US legal experts, on whether it is "transformative" or whether it just cribs from Ms Rowling's plot and prose. Much of the testimony missed this issue. Ms Rowling dwelt on her own plans to publish a Potter encyclopaedia, which is neither here nor there. Literary critics cannot be kept from writing about, let us say, the novels of Philip Roth on the grounds that Mr Roth swears he wants to publish a book called What My Novels Mean ...

Whatever the court decides on legal grounds, one need only spend five minutes at Mr Vander Ark's website ( hp-lexicon.org ) to see that, on literary grounds, the idea that he is merely cribbing is nonsense. The website is highly transformative. It is a leviathan effort of research, criticism and interpretation. It is a concordance, index and bibliographical essay all in one. If the eventual book bears the slightest resemblance to it, it will be indispensable to scholars and lay Potter addicts. It gives timelines of the novels and points up inconsistencies in them. Its section on plants describes the uses and behaviour of fluxweed, honking daffodils and whomping willows, and reconstructs seven years of the "herbology" curriculum at Hogwarts. It indexes everything Ms Rowling has ever said in published interviews about her main characters... Such a site is not just a godsend to Potter addicts. It is thanks to readers such as Mr Vander Ark that Harry Potter is taken as something more than just a particularly good children's book."

He wrote 200,000 books

Knowing how much effort it takes to write just one book, I did a double take at this headline of an NYT article: He Wrote 200,000 Books

It seems that Professor Phillip Parker at Insead had computers do much of the heavy lifting. He

"has developed computer algorithms that collect publicly available information on a subject — broad or obscure — and, aided by his 60 to 70 computers and six or seven programmers, he turns the results into books in a range of genres, many of them in the range of 150 pages and printed only when a customer buys one."