DNA of innocents to be retained for 6 years

The Guardian may have jumped the gun in reporting 3 weeks ago that the government was dropping plans for legislation on the retention of DNA of people never changed or convicted of a criminal offence. The folks at the Telegraph seem to think that the retention of DNA of innocents for 6 years is still very much on the table.

The general confusion surrounding this type of issue and the interception modernisation programme is likely to be a continuing feature of the briefing and counter-briefing going on, the manoeuvring in preparation for a general election next year by all political parties (and preparation of government officials expecting a change of administration), and the limited time left to the new labour government to implement new laws.  We can expect lots of tough on crime and terrorism proposals from the government and opposition in the run up to the election though.

The Madrid Privacy Declaration

The Madrid Privacy Declaration

3 November 2009

Affirming that privacy is a fundamental human right set out in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and other human rights instruments and national constitutions;
Reminding the EU member countries of their obligations to enforce the provisions of the 1995 Data Protection Directive and the 2002 Electronic Communications Directive;
Reminding the other OECD member countries of their obligations to uphold the principles set out in the 1980 OECD Privacy Guidelines;
Reminding all countries of their obligations to safeguard the civil rights of their citizens and residents under the provisions of their national constitutions and laws, as well as international human rights law;
Anticipating the entry into force of provisions strengthening the Constitutional rights to privacy and data protection in the European Union;
Noting with alarm the dramatic expansion of secret and unaccountable surveillance, as well as the growing collaboration between governments and vendors of surveillance technology that establish new forms of social control;
Further noting that new strategies to pursue copyright and unlawful content investigations pose substantial threats to communications privacy, intellectual freedom, and due process of law;
Further noting the growing consolidation of Internet-based services, and the fact that some corporations are acquiring vast amounts of personal data without independent oversight;
Warning that privacy law and privacy institutions have failed to take full account of new surveillance practices, including behavioral targeting, databases of DNA and other biometric identifiers, the fusion of data between the public and private sectors, and the particular risks to vulnerable groups, including children, migrants, and minorities;
Warning that the failure to safeguard privacy jeopardizes associated freedoms, including freedom of expression, freedom of assembly, freedom of access to information, non-discrimination, and ultimately the stability of constitutional democracies;
Civil Society takes the occasion of the 31st annual meeting of the International Conference of Privacy and Data Protection Commissioners to:
(1) Reaffirm support for a global framework of Fair Information Practices that places obligations on those who collect and process personal information and gives rights to those whose personal information is collected;
(2) Reaffirm support for independent data protection authorities that make determinations, in the context of a legal framework, transparently and without commercial advantage or political influence;
(3) Reaffirm support for genuine Privacy Enhancing Techniques that minimize or eliminate the collection of personally identifiable information and for meaningful Privacy Impact Assessments that require compliance with privacy standards;
(4) Urge countries that have not ratified Council of Europe Convention 108 together with the Protocol of 2001 to do so as expeditiously as possible;
(5) Urge countries that have not yet established a comprehensive framework for privacy protection and an independent data protection authority to do so as expeditiously as possible;
(6) Urge those countries that have established legal frameworks for privacy protection to ensure effective implementation and enforcement, and to cooperate at the international and regional level;
(7) Urge countries to ensure that individuals are promptly notified when their personal information is improperly disclosed or used in a manner inconsistent with its collection;
(8) Recommend comprehensive research into the adequacy of techniques that deidentify; data to determine whether in practice such methods safeguard privacy and anonymity;
(9) Call for a moratorium on the development or implementation of new systems of mass surveillance, including facial recognition, whole body imaging, biometric identifiers, and embedded RFID tags, subject to a full and transparent evaluation by independent authorities and democratic debate; and
(10) Call for the establishment of a new international framework for privacy protection, with the full participation of civil society, that is based on the rule of law, respect for fundamental human rights, and support for democratic institutions.

3 November 2009
Madrid, Spain

IMP consultation responses published; IMP postponed?

The UK government has published a summary of the responses to its public consultation on its proposed interception modernisation programme (IMP), or as it prefers to call it: "Protecting the public in a changing communications environment".

"The 221 respondents comprised 167 members of the public and 54 organisations including communications services providers, industry bodies, public authorities and campaign groups. A list of the respondents is provided in Annex B.

90 respondents did not address the questions asked but objected generally to the paper, almost invariably on the grounds of opposition in principle to any sort of surveillance. The percentages given below (in relation to each of the questions asked) therefore only relate to the 131 responses which provided a positive or negative response to the consultation’s specific questions. Where the percentages do not add up to 100% the balance is due to answers that addressed the specific question without being clearly negative or positive.

The main themes to emerge in responses were:

• widespread (but not unanimous) recognition of the importance of communications data in protecting the public;
• widespread appreciation of the challenges which rapidly changing technology poses;
• some support for the Government’s proposed ways of meeting these challenges;
• but also concerns about whether the Government’s proposals would be technically feasible or would impose unreasonable burdens on industry;
• some concern about whether the assessment of the balance of costs and benefits of the Government’s proposals was realistic;
• a desire from a number of respondents for greater clarity on why existing legislation and regulations were not capable of meeting the Government’s stated requirements;
• but also a recognition, particularly amongst those involved in the communications industry, that current legislation and regulations relating to the collection, retention and processing of communications data, particularly third party data, would soon need to be updated in light of changing technology;
• concerns about protecting communications data, where both privacy and commercial interests were engaged; and
• calls for more judicial involvement, and greater visibility and public awareness of existing oversight mechanisms, in order to improve public confidence in the way public authorities use communications data to protect them...

Question 1: On the basis of this evidence and subject to current safeguards and oversight arrangements, do you agree that communications data is vital for law enforcement, security and intelligence agencies and emergency services in tackling serious crime, preventing terrorism and protecting the public?
YES
59% of respondents agreed...

NO
18% of respondents answered ‘no’ to question 1...

Question 2: Is it right for Government to maintain this capability by responding to the new communications environment?
YES
53%...

NO
22%...

Question 3: Do you support the Government’s approach to maintaining our capabilities? Which of the solutions should it adopt?
YES
29%...

NO
38%...

Question 4: Do you believe that the safeguards outlined are sufficient for communications in the future?
YES
26%...

NO
50%...

D. CONCLUSION
The Home Office would like to thank all those who took the trouble to respond to this consultation.

The Government welcomes the recognition from a majority of respondents of the importance of communications data in protecting the public and that it is necessary to respond to rapidly changing technology in order to maintain this capability. It acknowledges that to improve confidence and trust in the use of communications data, and to demonstrate necessity and proportionality, it needs to continue to explain the importance of communications data, and the impact any loss of capability would have.

The Government will continue to develop the approach it proposed in the consultation document with a view to bringing forward the necessary legislation. In particular, it agrees with the significant view amongst respondents on the importance of safeguards and will ensure that the same strict safeguards that apply today will continue to minimise the potential for abuse and to ensure the safety and security of communications data under any new proposals. This view is strongly supported by public authorities that use communications data on behalf of the public.
The Government will also continue to work closely with communications service providers to ensure that any additional requirements will be feasible and reasonable, and to minimise, as far as possible, any impact on industry."

The Home Office also seems to have briefed some journalists to the effect that they have now decided to postpone IMP leglislation until after the election next year.

Update: The folks at the Telegraph seem to have talked to officials with a different view, i.e. that imp is going full steam ahead.

Spain rules out 3 strikes?

Just as they are about to assume the presidency of the EU in January 2010, the Spanish government has stated they are "not considering punitive measures for the end user of Internet", which is being read in some quarters as ruling out a 3 strikes law in Spain.

This is interesting, given that the compromise between the EU parliament and Council on amendment 138 to the telecoms package now could possilbly facilitate 3 strikes in member states which decided to introduce such schemes; and given that discussions on ACTA this week seem to be specifically (at least partly) about mandating 3 strikes regimes globally.

France have finally got their 3 strikes HADOPI law approved by the constitutional council.  Ireland have a partial 3 strikes regime since Eircom folded in their legal battle with the music industry and agreed to implement it, on condition the music companies sued Eircom's main competitors with the objective of getting them to implement 3 strikes too.  The UK government, at least in the form of Peter Mandelson, are now pushing strongly for a 3 strikes type approach here, though it's unlikely to go through before the general election next year; at which point Mr Mandelson may no longer be in a position to implement such a law (if as widely predicted the Conservative party, which has indicated they are opposed to 3 strikes, win an overall majority).  Germany is strongly opposed as are a number of other member states at the moment.  Spain's stance is important since it will influence the EU's legislative agenda over the next 6 to 8 months but it looks like 3 strikes will be a fluid issue for some time.

ACTA Internet chapter leak

Michael Geist helpfully points to the leaked ACTA Internet Chapter information available at Scribd.  Embedded below though you need a login ID and password to download from Scribd.

ACTA Internet Chapter info     

Jotwell

Michael Froomkin has pulled in an impressive list of contributors for an innovative looking new online journal Jotwell. In Michael's own words:

"Welcome to Jotwell: The Journal of Things We Like (Lots). Here you will find leading academics and practitioners providing short reviews of recent scholarship related to the law that the reviewer likes and thinks deserves a wide audience.
Jotwell is a special type of law review housed on a set of inter-linked blogs. As a law review, Jotwell has only one mission: to bring to readers’ attention great recent scholarship related to the law. As a blog we invite your comments, and hope that some of our reviews will spark a conversation.
On the Jotwell main page you should expect new content once or twice a week, although as we add more sections contributions may become more frequent. Each of the subject-specific sections will have something new at least once a month. In any case, every time a new review appears in any of the subject-specific sections, an excerpt with a link to the full text will also appear here on our front page at http://jotwell.com."

It's a great idea and a potential model for other subject matter right across the arts and sciences.  I wish them every success with it and hope to be able to carve out some space to follow developments.

UK Supreme Court first ruling: criminal records checks often go too far

In one of their first ever judgments, in R (on the application of L) (FC) (Appellant) v Commissioner of the Police of the Metropolis) (Respondent), the judges at the UK's new Supreme Court have ruled that criminal records checks often go too far.  The Court's press release summarises the judgement:

"The Supreme Court holds that, when determining whether to disclose non-criminal related
information retained in police records in connection with an application to work with
vulnerable persons, the police must give due weight to the applicant’s right to respect for her
private life. However, the facts narrated were true, the allegation was directly relevant to her
employment and the school was entitled to be apprised of the information.
Therefore, while the consequences for the appellant’s private life are regrettable, disclosure
could not in this case be said to be disproportionate to the public interest in protecting
vulnerable people [para [48], [49], [58] and [86]]. The appeal must be dismissed...

Amongst the reasons for the decision the summary lists:

 Those who apply for positions that require an ECRC cannot be regarded as consenting to their
privacy rights being violated. Consent is predicated on the basis that the right to respect for
private life will be respected [para [43]]. Otherwise, legislation could easily circumvent HRA
rights by effectively curtailing access to benefits unless people ‘consent’ to invasions of their
rights [para [73]].

 The police’s historic approach towards balancing the public interest in protecting vulnerable
persons and respecting Article 8 rights was flawed, as they applied a general presumption that
in cases of conflict the public interest should generally prevail [para [44]]. Article 8 requires
that neither consideration be afforded precedence over the other – each interest should be
given careful consideration in assessing the proportionality of the proposed disclosure [paras
[45], [63] and [85]]."

The Telegraph doesn't miss the opportunity to report on a dent in the state's big brother apparatus.

German Constitutional Court 1983: Mass surveillance is incompatible with a free and democratic society

Thanks to Douwe Korff via FIPR for this extract from the German Constitutional Court's famous 1983 Census-judgment:

“A social and legal order in which the citizen can no longer know who knows what and when about him and in which situation, is incompatible with the right to informational self-determination. A person who wonders whether unusual behaviour is noted each time and thereafter always kept on record, used or disseminated, will try not to come to attention in this way. A person who assumes, for instance, that participation in a meeting or citizen initiative is officially recorded, and may create risks for him, may well decide not to use the relevant fundamental rights ([as guaranteed in] Articles 8 and 9 of the Constitution). This would not only limit the possibilities for personal development of the individual, but also the common good, because self-determination is an essential prerequisite for a free and democratic society that is based on the capacity and solidarity of its citizens.”

WIPO Director General calls for transparency on ACTA

IP Watch, in Perpetual Protection Of Traditional Knowledge “Not On Table” At WIPO, report that the Director General of WIPO, Francis Gurry, has called for greater transparency on the ACTA negotiations.

"On the secretive Anti-Counterfeiting Trade Agreement, Gurry said that WIPO too did not know a great deal about the talks.
“Naturally we prefer open, transparent international processes to arrive at conclusions that are of concern to the whole world,” he said, citing WIPO’s role as an international, United Nations agency. And, he added, “IP is of concern to the whole world.”
On copyright protection in the internet age, the “problem we have is massive,” he said, citing the example of the newspaper industry and the music industry, both suffering as new technology necessitates changes in old business models.
This problem “deals with the financing of culture in the 21st century,” he added, saying that whatever legal model goes into place to facilitate cultural exchange “should be technology neutral.”
Gurry further mentioned the WIPO Development Agenda, reiterating that it aims to “mainstream development” throughout the UN agency, and is not intended to be “sitting in one corner of the organisation,” but rather should be reflected in “every single aspect of the organisation.”"

Well said.

Cory: 3 strikes denies physics and justice

Cory Doctorow was in sparkling form in this morning's Times with Denying physics won't save the video stars

"Peter Mandelson’s proposal to disconnect the families of internet users who have been accused of file sharing will do great violence to British justice without delivering any reduction in copyright infringement. We’ve had 15 years of dotty entertainment industry proposals designed to make computers worse at copying. It’s time that we stopped listening to big content and started listening to reason...

Proposing to terminate your access to the information society because you share living quarters with an accused copyright infringer is madness. The entertainment industry has mistaken the net for an apocalyptically uncontrolled entertainment medium. It wants to take charge of it so that it can be made into a medium more hospitable to its interests."

French Constitutional Council accepts 3 strikes

From the NYT:

"France thrust itself into the vanguard of the global battle against digital piracy on Thursday, approving a plan to deny Internet access to people who illegally copy music and movies.

The country’s highest constitutional court approved a so-called three-strikes law after rejecting the key portions of an earlier version last spring. Supporters say they hope that France, by imposing the toughest measures yet in the battle against copyright theft, will set a precedent for other countries to follow."

The NYT link may expire shortly but the news is reported in a variety of outlets.

EU Parliament give up on Amendment 138

La Quadrature du Net are unhappy with the revised version of amendment 138 to the telecoms package agreed by the Council and representatives of the EU parliament.

"Yesterday, representatives of the European Parliament, an institution that ordinarily prides itself for protecting human rights at home and abroad, decided to surrender to the pressure exerted by Member States. The Parliament gave up on amendment 138, a provision adopted on two occasions by an 88% majority of the plenary assembly, and which aims at protecting citizens' freedom in the online world. Instead of ensuring that no restriction to Internet access would be imposed without the prior ruling of a judge, amendment 138 will instead be replaced by a weak provision1, that does not carry any new important safeguard for citizen's freedoms.

European Parliament, who regularly boasts itself about its credentials in the field of human rights, has endorsed the false idea that it had no power in protecting their constituents' rights under current rules. This decision was taken consciously by rapporteur Catherine Trautmann, in order not to risk a confrontation with the Council of EU and to quickly finish with the Telecoms Package. She, along with the rest of the Parliament delegation deliberately ignored existing texts and case law pointing to the fact that it had the competence to adopt the core principles of amendment 1382. They didn't even try to reword the original amendment in order to preserve its initial objective."

The revised wording arguably facilitates the implementation of 3 strikes regimes in member states. Ultimately, however, as Lilian Edwards has argued so eloquently in the past, the 3 strikes approach is incompatible with a range of international human rights instruments. Also, in the end, the public just won't wear it if significant numbers of people start getting their internet access routinely cut off for suspected copyright infringement.

UK government retreat on DNA retention

The Guardian reported on Monday that UK government "announced it is dropping current proposals to retain the DNA profiles of innocent people on the national database", despite a successful appeal by the police against an information tribunal ruling that data on old, minor convictions must be deleted from police computers.

Apparently retention proposals have been removed from the policing and crime bill currently making its way through parliament.  Given the twists and turns on this since The ECJ condemned the UK's fingerprint and DNA data retention policy in the S. and Marper v UK case last year, I doubt this announcement is likely to indicate a clear intention to comply with the ruling.  Indeed the Home Office announcement included a declaration of intent to include DNA retention proposals in the next policing and crime bill.  The dumping of the current proposals is likely to be more related to criticism from the Jill Dando Institute for Crime Science, which claimed the government was using its unfinished research inappropriately to justify 6 and 12 year retention, than any intent to fully implement the principles of the S. and Marper decision.

Fishenden: Utopian or dystopian UK

Jerry Fishenden has been wondering about whether we're creating a utopian or dystopian society in the UK.

"I'm not convinced how pervasive the understanding of these changes has become at the senior levels of policymaking. To understand the reality of what any political party will deliver once it is in power, we should look as much at what they say about the role of technology as we do their more overtly expressed political ambitions. Technology is no longer just an operational or administrative tool. It has become a lever of policymaking itself -- for good, or ill.
If we are to make an informed decision at the next election about the sort of future UK that we want to see develop, we need to learn how to decipher and interpret the various parties' technology policies. They can reveal as much about their underlying authoritarian or liberal philosophies as anything claimed in their more general manifesto pledges.
We will only fully understand the implications of their upcoming manifestoes -- and whether they will ultimately strengthen, or undermine, our liberal democracy -- when we also understand whether they plan to use technology to strengthen the role of the citizen or the state.
And whether they plan to place us all inside the panopticon, or to use technology to protect and strengthen our collective, democratic, common law values."

Report of an Inquiry by the All Party Parliamentary Communications Group

Report of an Inquiry by the All Party Parliamentary Communications Group, Can We Keep Our Hands of the Net is now available and gives lots of food for thought.  They come out categorically against a 3 strikes regime in paragraph 59 on page 12, for example.

"Question 1: “Bad Traffic”

12. The first of our questions was:
Can we distinguish circumstances when ISPs should be forced to act to deal
with some type of bad traffic? When should we insist that ISPs should not be
forced into dealing with a problem, and that the solution must be found
elsewhere?

Botnets, spam and denial of service
13. When we formulated this question, we had in mind the type of issue that the Foundation
for Information Policy Research (FIPR) was concerned about. They argued that:
In the case of bad incoming traffic, such as spam, the markets have shown that they
can cope; most ISPs now offer spam filtering. The interesting market failure occurs
with bad outgoing traffic. For example, when end-user PCs are compromised and
used to send spam or distribute malware, medium-sized ISPs often take the trouble to
identify them and clean them up, as an ISP that emits a lot of spam can find its
peering relationships at risk. But large ISPs are under no such pressure, and thus
ignore infected machines; dealing with customers costs money. This failure will not
be fixed by technology, and will require regulatory action.
14. FIPR suggested that there should be either a regime of statutory fines, or a privateaction
alternative in the form of a statutory scale of damages – similar to the scheme
introduced by the EU to enable passengers whose flights are cancelled or overbooked to
get compensation. FIPR drew our attention to “Security Economics and European
Policy” a report they had written for the European Network and Information Security
Agency (ENISA) which set out this approach at greater length...

Mere Conduit
22. Andrew Cormack also drew attention to another type of disincentive for ISPs to
examine traffic:
It has been suggested that a hosting provider that attempts to detect infringing
material of any kind immediately acquires liability for all infringing material that
may be on their service, on the grounds that they have demonstrated some intent and
ability to edit and select content and are therefore no longer merely a hosting
provider but an editor. For providers that wish to remove inappropriate material
from their own services, but are aware that checking can never guarantee to detect
all problems, this potential liability can be a significant deterrent. We therefore
consider that the law needs to be clarified to ensure that a hosting service that detects
problems on its own service is in the same position as (or at least no worse than) a
service that waits to receive notice of the problems from others. Such a change would
encourage quicker removal of some types of inappropriate content...

27. But to return to the general point that Andrew Cormack was making. The way in which
the “mere conduit” immunity is phrased, is that it is lost if the ISP “selects” or
“modifies” the information within a transmission. This was clearly intended to
distinguish between an organisation who generated traffic (who would not be immune
from action over what they generated), and those who just supplied the communication
pipes to carry the traffic (who would not be liable for carrying material they knew
nothing about).
28. However, this phrasing means that communication pipe suppliers who are attempting to
clean up traffic will lose their “mere conduit” immunity. Of course, this may not
immediately open up an ISP to legal action, since they may have other immunities they
can rely upon – but in such circumstances, the eCommerce Directive will not be of
assistance to them...

Illegal sharing of copyrighted material
30. Other “rightsholders”, the bodies representing the publishing, music and film industries,
had a rather different view of the extent to which “mere conduit” conferred immunity.
The Alliance Against IP Theft said:
The Committee, in its introduction to the inquiry, has suggested that ISPs have
“almost no legal liability for the traffic that passes across their networks”. We do
not believe that is strictly true with regards to copyright infringement. While ISPs
may point to the E-Commerce Directive, stating they are a “mere conduit”, rights
holders do not believe this defence is absolute. In addition, the Copyright Directive
allows copyright owners to seek injunctions, requiring ISPs to stop illegal activity on
their networks.
31. A typical view was that expressed by the British Recorded Music Industry (BPI):
“Bad traffic” could arguably be used to describe the ubiquitous daily online
copyright infringement committed by peer to peer users, for two reasons.
First, it is a straightforward breach of the law for a person to upload (i.e. make
available) copyright material without the authorisation of the rightsholders.
Committing a strict liability offence in this way should not simply be ignored. […]
Secondly, the economic impact of this form of “bad traffic” on the creative sector is
highly damaging. Copyright infringement online leads directly to a loss of revenue to
the rightsholders, seriously threatening their viability as businesses, and impacting
on employment in the sector.
32. The rightsholders had a number of explanations as to why the ISPs were not prepared to
deal with what they saw as bad traffic. The Motion Picture Association told us:
One explanation for the current unwillingness of ISPs to cooperate could be a fear of
a competitive disadvantage flowing from actions to discourage “bad traffic”. This
argues for some degree of government intervention to ensure a level playing field,
perhaps in the form of a government-sanctioned enforceable Code of Practice
establishing a minimum standard of responsible behaviour.
33. The ISPs generally felt that asking them to act as a proxy for the rightsholders was
inappropriate. For example, T-Mobile told us:
It is unclear why T-Mobile should be expected or forced to bear the costs of
protecting a third-party’s rights.
34. TalkTalk drew our attention to other difficulties which occurred when ISPs got involved
in trying to prevent unlawful file sharing:
For instance, the current approach to identifying illegal filesharers is unreliable in
correctly identifying the perpetrator with the consequence that innocent parties are
sometimes identified. It is also easy for individuals illegally filesharing to avoid
detection by encrypting their traffic or hijacking someone else’s IP address or using
their wi-fi network. Similarly, site blocking is relatively simple to get around.
35. There were also concerns expressed about whether identifying people who accessed the
Internet via the mobile telephone networks would be possible at all. T-Mobile explained
that the way in which the mobile industry allocated IP addresses to customers caused
particular problems:
Whilst technical options are often viewed as a panacea the Group should be aware
that there are serious practical reasons why the measures proposed in the Digital
Britain interim report that work for fixed ISPs will not readily apply in a mobile
environment. In particular mobile operators cannot identify individual rights
infringers from public IP addresses alone with sufficient degree of confidence to
support taking action against customers.
36. TalkTalk went on to ask (and a great many other respondents made similar points about
new business models) if there were better policy options:
In many cases there will be other possible approaches to addressing the problem.
For instance, in the case of illegal filesharing, education, alternative business models
and limited court action make go a long way to addressing the issue. Any
consideration of whether an ISP should act must also consider what alternatives exist
and whether these would be more appropriate.
In principle, we see that there may be circumstances where it is appropriate for ISPs
to act [...] However, given the potential issues with other approaches, it is critical to
scrutinise and assess any potential initiative against these criteria.
37. Some people suggested that one way to approach file sharing was to ensure that people
paid appropriately for network usage, or – as the rightsholders have proposed – have
their traffic artificially slowed down if they use the Internet too “much”. As a policy
option, this will of course be more attractive to the film industry (where file sizes are
very large) rather than publishing, or the music industry, where files are relatively tiny...

Conclusions regarding Question 1

[...]

53. We agree with the view that was put to us that the current legal protections relating to
“hosting” and “mere conduit” are capable of having a counterproductive effect, in that
they may discourage some proactive approaches by ISPs.
54. We recognise that tidying up this area risks overlaying significant complexity over some
very simple principles. Nevertheless, we recommend that the Government revise the
law to enable ISPs to take proactive steps to detect and remove inappropriate
content from their services, without completely losing important legal immunities
which fit with their third party role in hosting and distributing content. ...

58. We conclude that much of the problem with illegal sharing of copyrighted material
has been caused by the rightsholders, and the music industry in particular, being
far too slow in getting their act together and making popular legal alternatives
available.

59. We do not believe that disconnecting end users is in the slightest bit consistent with
policies that attempt to promote eGovernment, and we recommend that this
approach to dealing with illegal file-sharing should not be further considered.

60. We think that it is inappropriate to make policy choices in the UK when policy
options are still to be agreed by the EU Commission and EU Parliament in their
negotiations over the “Telecoms Package”. We recommend that the Government
terminate their current policy-making process, and restart it with a new
consultation once the EU has made its decisions."

 Apologies for the formatting but the original's worth a browse.

iTunes irritations

An iPod-loving but non-techie old friend is going on a long plane journey this week and decided to buy some audio books at iTunes to ease the boredom of the flight. Ok so she connects to iTunes buys the books and disconnects from the store.

Next she tries to transfer the books to her beloved iPod only to be faced with an error message saying her computer is "not authorized" to use the books, followed by a series of instructions on what she could do to "authorize" the computer.  Bear in mind that this is a computer she has for some time been regularly connecting to iTunes.

Faced with the terror of breaking her iPod and losing her content including her newly purchased audiobooks, she asks me to talk her through the authorisation process.  We click through the various steps and get the machine authorized again and get the whole process rounded off with a message saying this is the second of her quota of five computers to use on iTunes.  It reads like a '2 down, only 3 to go' warning... the clock is ticking on that collection of music, games, books, podcasts etc. and the great remote iTunes monster in the internet ether will determine how long more you are worthy of retaining access to that lovingly compiled (and somewhat expensive) collection you have assembled over the working life of your iconic personal media player.

How has the primary commercial outlet for digital content become so dysfunctional?  A commercial outlet controlled by a tech company which essentially had no connection with the music industry 10 years ago, for example.  Can you imagine in the 1970s buying an LP, bringing it home, sticking it on a record player only to be faced with a message saying that record player is "not authorised"? Then being instructed to ask the permission of the store you bought the record at to play it on your own machine?  And finally being told by the store clerk, having  graciously granted said permission, if you have jumped through the required hoops to their satisfaction, that you've had two written warnings about the equipment you use in the comfort of your own home and you better watch it because you only get three more chances before you're not allowed to play your records any more.  Likewise with audiobooks on cassette or CDs in the 1980s or 1990s?

The online music industry is potentially enormous but the current obsession with micro control of access and use and monetizing everything on a 'per click' basis is killing it; (there was another report last week of a 15% drop in CD sales).  The music industry is terrific at finding popular talent and selling it to the masses.  It is also terrific at drawing attention to the talent it has to sell. As Tim O'Reilly says, on the internet the problem is not piracy, it's grabbing attention for long enough and getting noticed. The music industry hasn't yet managed to transfer their core competences into the Internet age, partly because one of its prior key competitive edges - control of the distribution chain - has gone and they are still mourning that loss, and partly because they are so heavily focussed on controlling the new reality with stronger laws and what some critics call 'broken technology' or built-in technological measures like drm. Apple is the main current commercial outlet for its music because Apple was the tech company with the iPod that the music industry turned to in its hour of need.

No one has 'cracked' the blue chip business model for online content yet but it will have to include:

• reasonable pricing
• ease of use
  
• convenience
• guaranteed quality (including security, lack of malware etc.)
• consumer ownership and control
  
• jettisoning of drm and the 'monetizing every click' mindset

But the business model will get sorted out, competition will ensue and the online content business may well be bigger than it's pre-internet cousins.  Existing content owners do have a big part to play in that new landscape as do the current and future innovators like Apple.  But can we get there sooner rather than later please?  Much though I enjoy unexpected calls from old friends, I'd rather the incentive for the call was not because that friend, who had actively sought out and paid for legitimate content, was concerned they were about to break their computer/iPod or their future incarnations with precisely that legitimate content.  I know all the concerns about 'how are we supposed to compete with free' and the complex nature of the IP landscape still undergoing an upheaval of earthquake proportions etc. but remember convenience, quality and reasonable prices beat free every time. So:

Convenience + quality + reasonable price + consumer control = the killer business model

Bollier on Ostrom

David Bollier recently did a presentation on the notion of commons, drawing heavily on the work of Elinor Ostrom, who has just won the nobel prize for economics.  What he didn't know in advance was that Professor  Ostrom herself would be in the audience.

"Last weekend I traveled to Bloomington, Indiana, to speak at a community-organized conference on the commons. As I got up to speak, I paused and gulped: there in the audience was the pioneering scholar of the commons, Elinor Ostrom.

It was not an academic conference, but rather a gathering of 125 regular citizens at the local Unitarian-Universalist Church. Several slides in my presentation drew upon her work or mentioned her. Would she agree with my interpretations? Would I get something wrong?

Ostrom, a long-time political scientist at Indiana University, is a tremendously warm and generous-spirited person, so it was not her personality that gave me pause. It’s that she has spent several decades studying how real-life commons work, especially in managing natural resources. From Nepal to Switzerland and from Turkey to Los Angeles, Ostrom has done painstaking field work and attended scores of conferences to probe the inner dynamics of commons. She knows a few things.

Now Professor Ostrom has won the Nobel Prize for Economics, the first woman to be so honored. It is a well-deserved recognition. Professor Ostrom holds a special place in the history of the commons because she has done so much to make it visible in our time — first to academics, and then to many policymakers and now to the general public.

Bollier goes on to explain Ostrom's work in a really accessible way in the piece. Recommended.

Click On interview

I did a recorded discussion today, on the politics of intellectual property, with Simon Cox of the BBC's Click On programme, his resident technology expert and editor at ZDNet UK, Rupert Goodwins, and Andrew Robinson of the UK Pirate Party. Not having been involved in a Radio 4 interview before it's difficult to judge but I think we avoided the usual "'The nasty corporate behemoths are the baddies' 'No the dirty rotten thieving pirates are the baddies'" format that such public discussions too often take.

I fear I failed to articulate the complex nature of  the issues and the need to balance the range of interests of the various stakeholders - creators, commercial agents (using "agent" in the economic sense to include all the relevant industries, collecting societies etc) and the public - if we're to make any real progress.  You can judge for yourself when the programme goes out on Monday afternoon at 4.30pm.

Apologies also to Andrew Robinson, who at one point in the proceedings I carelessly called 'Andrew Anderson'. Monday's a packed day for me so I suspect I'll listen into the podcast or iPlayer version later in the evening or perhaps it would be better if I avoided it altogether!

Google finally venture into book sales

Google's long awaited venture into online book sales, Google Editions, has been announced.

Google Books Is Not a Library

Professor Pamela Samuelson has responded to Sergey Brin's op-ed in the New York Times last week claiming
the Google book project was a digital library of Alexandria.

"A digital library containing all the world's knowledge is a laudable goal; just ask Brewster Kahle, who established the Internet Archive in 1996, years before Google was founded, and who has worked tirelessly to create it as a non-profit true digital library.

Unlike the Alexandria library or modern public libraries, the Google Book Search (GBS) initiative is a commercial venture that aims to monetize millions of out-of-print books, many of which are "orphans," that is, books whose rights holders cannot readily be found after a diligent search...

Google is now pressing university partners to accept ads even for the institutional subscriptions. Anyone aspiring to create a modern equivalent of the Alexandrian library would not have designed it to transform research libraries into shopping malls, but that is just what Google will be doing if the GBS deal is approved as is."