Balkinization on ACTA

Margot Kaminski has a terrific review of ACTA over at the equally terrific Balkinization blog.

"The Anti-Counterfeiting Trade Agreement, a plurilateral agreement negotiated outside of the WTO's processes and protections, is the biggest set of new laws to hit international Intellectual Property. Many organizations have had serious concerns about the potential civil liberty and economic impact of ACTA. A draft text of ACTA has been leaked here. Many of these issues are clearly still up for debate. The biggest three issues may be the scope of criminal copyright infringement, the expansion of the US Digital Millenium Copyright Act (DMCA) internationally, and the creation of a new international institution (an ACTA "Committee") to deal with enforcement of ACTA. In short, ACTA is geared up to do almost exactly what I predicted in a "Recent Development" in YJIL last year (The Origins and Potential Impact of the Anti-Counterfeiting Trade Agreement (ACTA), 34 Yale J. Int’l L. 261 (2009)). It amps up IP protection and criminal sanctions, without respecting existing international institutional process and involving the interests of developing countries. Unsurprisingly, the US is an IP maximalist here, pushing for the strongest provisions. Singapore is a minimalist. Australia fluctuates depending on the provision. Japan appears to be on board with the US except for DMCA provisions, with which it heartily disagrees. What's at stake here? Institutional process and legitimacy (why is this taking place outside of the World Trade Organization (WTO) and WIPO?), and a rush to standardization on approaches to the Internet around the US standard, which arguably isn't the ideal. Privacy interests (implicated by data sharing with both other countries and with rights' holders) and liberty interests (why rush to the unreasonable US standard of criminalization?) are also very much at stake."

Read in full, particularly her list of 24 important things to note.

Keywords at the ECJ again -- but this time Google's not a party

From the excellent IPKat:

"The IPKat has just taken a look at Case C-278/08 Die BergSpechte Outdoor Reisen und Alpinschule Edi Koblmüller GmbH v Günter Guni and trekking.at Reisen GmbH,...

It's another AdWords case, involving Google's "paid referencing service" which enables any economic operator, by means of the reservation of a keyword, to place a link to its own advertisement which is flagged as a "sponsored link", when the user of its search engine employs that keywords as a search term, in addition to the "natural results" of the search which the user gets irrespective of whether the keyword is an AdWord...

This morning the Court of Justice ruled as follows:

"Article 5(1) ... must be interpreted as meaning that the proprietor of a trade mark is entitled to prohibit an advertiser from advertising, on the basis of a keyword identical with or similar to that trade mark which that advertiser has, without the consent of that proprietor, selected in connection with an internet referencing service, goods or services identical with those for which that mark is registered, in the case where that advertising does not enable an average internet user, or enables that user only with difficulty, to ascertain whether the goods or services referred to therein originate from the proprietor of the trade mark or by an undertaking which is economically connected to it or, on the contrary, originate from a third party".

This ruling relates only to the first referred question since the Court concluded that an answer the second would not be useful for resolving the underlying dispute. The Court's position here is unsurprising in light of Tuesday's ruling in Google (see here and here), which it cites as authority. Indeed, if you think you might be suffering from déjà vu, you might note the similarity between the paragraph above and the first paragraph of the Court's Google ruling."

Stephen Fry's speech condemning the Catholic church

Following the Pope's partial apology to Irish victims of clerical child sexual abuse I was prompted to watch Stephen Fry's emotional speech condemning the Catholic Church and articulating why he believes the church is a malevolent force in the world and how it could and should change.


The Intelligence² Debate - Stephen Fry (Unedited)
Uploaded by Xrunner17. - Watch feature films and entire TV shows.

BPI say no need for debate on Digital Economy Bill

According to ORG the BPI Director of Public Affairs, Richard Mollett, has said today that there is no need for debate on the digital economy bill.

"This afternoon, Richard Mollett, Director of Public Affairs for the BPI, told the Counter 2010 conference in Manchester this afternoon that the Lords had scrutinised the Digital Economy Bill enough, and there is no further need for debate.
The BPI are saying there is no need for democratic debate by our elected MPs in the Commons. Richard Mollett, who is a Labour candidate for parliament, wants MPs to throw away their democratic rights and duties. This is corporate lobbying of the worst sort."

Update: ORG question BPI's denial of above.

Heathrow security man ogled female colleague on strip search machine

From today's Independent:

"An airport worker allegedly caught ogling images of a female colleague in a full-body scanner faces the sack after being given a police warning for harassment.

The Heathrow worker, named by The Sun newspaper as 25-year-old John Laker, allegedly made lewd remarks to colleague Jo Margetson, 29, after she entered an X-ray machine by mistake"

Like that wasn't entirely predictable.

Response from my MP on objections to Digital Economy Bill

"I've had the following response from my MP, Liberal Democrat Evan Harris, to my letter pointing out my objections to the digital economy bill.

"Dear Mr Corrigan,

Thank you for your recent email about the Digital Economy Bill. Lack of effective scrutiny for legislation is something that I have a particular concern about – and on which I have been very active in Parliament – and I therefore wanted to take some time to craft a personal response to this campaign. I would like to respond firstly to the substantial concerns that remain about the Bill itself and secondly to the process by which this Bill is being rushed through

1. DIGITAL ECONOMY BILL - concerns

At our Conference last weekend, the Liberal Democrats overwhelmingly voted for a motion condemning the Digital Economy Bill’s website-blocking and disconnection provisions. I worked with its sponsor, Julian Huppert (our candidate for Cambridge), to promote the motion. Unlike the other two parties the Liberal Democrats are a democratic party and this motion is therefore now part of our party’s policy. The motion is too long to quote here in its entirety (although I recommend you look at it on the website http://bit.ly/LD-DEBill ) but the most significant parts are:

        Conference condemns:

        i) Website-blocking and disconnecting internet connections as a response to copyright infringement.

        ii) The threat to the freedom, dignity and well-being of individuals and businesses from the monitoring of their internet activity, the potential blocking of their websites and the potential termination of their internet connections, which could lead to the closure of internet hotspots

        iii) The Digital Economy Bill for focusing on illegal file-sharing rather than on nurturing creativity

        Conference supports:

        a) The principle of net neutrality, through which all content, sites and platforms are treated equally by user access networks participating in the Internet.

        b) The rights of creators and performers to be rewarded for their work in a way that is fair, proportionate and appropriate to the medium.

        Conference therefore opposes excessive regulatory attempts to monitor, control and limit internet access or internet publication, whether at local, national, European or global level.

Within Parliament Lib Dems have been working to improve this bad legislation.

We already managed to remove the provisions to allow Lord Mandelson to change copyright law at a stroke. We attempted, with our Amendment 120A in the House of Lords which would have changed the Government’s Clause 17, to require the Government to go to the High Court to get an injunction if it wanted to require ISPs to block access to websites that persist in publishing a substantial amount of copyrighted material despite repeated requests to remove it. It creates quite a high threshold that the Government would have to overcome, and ensures that – if this provision is to remain – then there must be proper scrutiny and due process. It requires that all of the following conditions are met:

        a) The website is holding a "substantial proportion" of copyrighted material;

        b) The operator has been contacted a number of times and asked to remove the content but failed to do so;

        c) The copyright holder has made a reasonable effort to ensure there are legal ways of accessing the content online;

        d) Human rights implications, such as the right to freedom of expression, have been taken into consideration by the Court.

Even with this amendment, I believe that the Bill still represents a threat to freedom of expression. I am confident that, due to the controversial nature of the Bill, it will not be able to be passed in the likely remaining 8 sitting days of this Parliament, or that this measure will go through in the "wash-up" when parliament is about to be resolved and the parties negotiate what bits of bills can get through. However I am not complacent about this and it is important that organisations such as the Open Rights Group keep up the pressure to ensure that both Labour and the Conservatives are aware of the electoral costs of allowing this legislation through.

Particularly following the Conference vote, I would like to take the opportunity to highlight the fact that it is now Liberal Democrat policy to oppose:

        a) Website blocking and disconnection

        b) Sweeping monitoring of internet activity

        c) Threats to net neutrality

Liberal Democrats are instinctively opposed to attacks on civil liberties and censorship – and I will continue to vote against these extreme proposals whenever they come up.

2. BETTER SCRUTINY

For many years I have been a strong advocate working for better scrutiny of legislation in Parliament. In the abstract it seems like something of a technical concern, but in reality it has a fundamental impact on the legislation passed in this country. There are countless examples of important Bills where whole groups of amendments or clauses are never even debated let alone voted on in the elected House. The reason for this is that the Government has control over the entirety of Parliament’s timetable. It cannot be right that the Government regulates (and indeed inhibits) Parliament’s ability to scrutinise the Executive – and it seems fairly obvious that it’s the job of legislators to scrutinise legislation.

Recently as a leading member of the elected Wright Committee on the Reform of Parliament I was successful in pushing through an amendment, on a cross-party basis, to establish a "House Business Committee" at the start of the next Parliament. This would ensure that the House itself, not the Government whips could decide its own timetable, while providing for sufficient time for the Government to put forward the business that it was elected on, and mandated to carry out. Scrutiny will obviously depend on good MPs to scrutinise the legislation, but this change will at least give them the opportunity to do so – an opportunity they are currently denied. A report of my efforts in this area can be found in this article by Henry Porter in the Observer: http://bit.ly/cjpDmN

However, another part of the problem for timetabling is that Parliament’s time is very unpredictable, as the Prime Minister can call an election at any time. When the election is called there is therefore the issue of what to do with legislation that Parliament has spent a lot of time on, but not yet passed into law. Fixed-term Parliaments would get round the problem posed by this and the horse-trading the parties (commonly known as the "wash-up") could no longer even pretend to be justified. I, along with the rest of my party, have long supported fixed-term Parliaments.

Accordingly I think I have a strong record of action supporting my belief that legislation should not be passed without sufficient and effective scrutiny. But in this case, I have additional concerns about the legislation in question.

Thanks once again for contacting me about this important issue, and thank you for keeping up the pressure against this unacceptable legislation.

Yours sincerely

Evan Harris"

He's a little confused about the detail - supporting amendment 120a whilst simultaneously support the emergency motion opposing web blocking - but seems to be opposed to the digital economy bill going through in the wash up of legislation before the election. I've responded:

"Dear Dr Harris,

Thanks for your response and I wish you luck with your efforts to block the passing of the digital economy bill in its current form before the election.  There seems to be a little confusion, though. I would just point out that amendment 120a, which you seem to support, was the web censorship amendment that has raised so many concerns, not least amongst your colleagues in the Liberal Democrats who supported the nicely conceived emergency motion you also cite http://bit.ly/LD-DEBill, opposing amendment 120a.

I appreciate it’s a busy time for MPs but if anything this reinforces the need to avoid rushing complex legislation through parliament without proper scrutiny, when even those with a well balanced perspective on the preferred shape of such regulations can misinterpret some of the key details, in the thick of the noise and furious activity that constitutes the lead in to a general election."

Big win for Google in ECJ adwords case v Louis Vuitton Malletier et al

On the day when the media focus is on Google moving from mainland China to Hong Kong the really significant Google story is the big win in their European Court of Justice case against Louis Vuitton Malletier.  In what could prove to be a hugely important internet and trademarks decision, the court held that

"Google has not infringed trade mark law by allowing advertisers to purchase keywords corresponding to their competitors’ trade marks."  

They did warn however that:

"Advertisers themselves, however, cannot, by using such keywords, arrange for Google to display ads which do not allow internet users easily to establish from which undertaking the goods or services covered by the ad in question originate"

Court of Justice of the European Union, PRESS RELEASE No 32/10 gives an outline of the decision. The full text of case number C-236/08 is also available at the http://curia.europa.eu website.

Update: The Grand Chamber of the Court takes 21 paragraphs to outline the technicalities of EU trademark law involved in the case and then explains the Google adwords service (paras 22 -27). Then -

"28      Vuitton, which markets, in particular, luxury bags and other leather goods, is the proprietor of the Community trade mark ‘Vuitton’ and of the French national trade marks ‘Louis Vuitton’ and ‘LV’. It is common ground that those marks enjoy a certain reputation.

29      At the beginning of 2003, Vuitton became aware that the entry, by internet users, of terms constituting its trade marks into Google’s search engine triggered the display, under the heading ‘sponsored links’, of links to sites offering imitation versions of Vuitton’s products. It was also established that Google offered advertisers the possibility of selecting not only keywords which correspond to Vuitton’s trade marks, but also those keywords in combination with expressions indicating imitation, such as ‘imitation’ and ‘copy’.

30      Vuitton brought proceeding against Google with a view, inter alia, to obtaining a declaration that Google had infringed its trade marks.

31      Google was found guilty of infringing Vuitton’s trade marks by a judgment of 4 February 2005 of the Tribunal de grande instance de Paris (Regional Court, Paris), and subsequently, on appeal, by judgment of 28 June 2006 of the Cour d’appel de Paris (Court of Appeal, Paris). Google has brought an appeal on a point of law (cassation) against that latter judgment."

Similar cases were brought by Viaticum, Luteciel and CNRRH.

Paragraphs 55 - 58, 97 - 99, 104 -105 and 114 - 120  get to the heart of the trademark infringement issues in the case:

"55      Although it is clear from those factors that the referencing service provider operates ‘in the course of trade’ when it permits advertisers to select, as keywords, signs identical with trade marks, stores those signs and displays its clients’ ads on the basis thereof, it does not follow, however, from those factors that that service provider itself ‘uses’ those signs within the terms of Article 5 of Directive 89/104 and Article 9 of Regulation No 40/94.

56      In that regard, suffice it to note that the use, by a third party, of a sign identical with, or similar to, the proprietor’s trade mark implies, at the very least, that that third party uses the sign in its own commercial communication. A referencing service provider allows its clients to use signs which are identical with, or similar to, trade marks, without itself using those signs.

57      That conclusion is not called into question by the fact that that service provider is paid by its clients for the use of those signs. The fact of creating the technical conditions necessary for the use of a sign and being paid for that service does not mean that the party offering the service itself uses the sign. To the extent to which it has permitted its client to make such a use of the sign, its role must, as necessary, be examined from the angle of rules of law other than Article 5 of Directive 89/104 and Article 9 of Regulation No 40/94, such as those referred to in paragraph 107 of the present judgment.

58      It follows from the foregoing that a referencing service provider is not involved in use in the course of trade within the meaning of the abovementioned provisions of Directive 89/104 and of Regulation No 40/94.

59      Consequently, the conditions relating to use ‘in relation to goods or services’ and to the effect on the functions of the trade mark need to be examined only in relation to the use, by the advertiser, of the sign identical with the mark...

62      The facts giving rise to the dispute in the main proceedings in Case C‑236/08 are similar to certain of the situations described in those provisions of Directive 89/104 and of Regulation No 40/94, namely the offering of goods by a third party under a sign identical with the trade mark and the use of that sign in advertising. It is apparent from the file that signs identical with Vuitton’s trade marks have appeared in ads displayed under the heading ‘sponsored links’.

63      In Cases C‑237/08 and C‑238/08, by contrast, there is no use in the third party’s ad of a sign identical with the trade mark.

64      Google submits that, in the absence of any mention of a sign in the actual ad, it cannot be argued that use of that sign as a keyword equates to use in relation to goods or services. The trade mark proprietors challenging Google and the French Government take the opposite view.

65      In this connection, it should be borne in mind that Article 5(3) of Directive 89/104 and Article 9(2) of Regulation No 40/94 provide only a non-exhaustive list of the kinds of use which the proprietor may prohibit (Arsenal Football Club, paragraph 38; Case C‑228/03 Gillette Company and Gillette Group Finland [2005] ECR I‑2337, paragraph 28; and Adam Opel, paragraph 16). Accordingly, the fact that the sign used by the third party for advertising purposes does not appear in the ad itself cannot of itself mean that that use falls outside the concept of ‘[use] … in relation to goods or services’ within the terms of Article 5 of Directive 89/104.

66      Furthermore, an interpretation according to which only the uses mentioned in that list are relevant would fail to have regard for the fact that that list was drawn up before the full emergence of electronic commerce and the advertising produced in that context. It is those electronic forms of commerce and advertising which can, by means of computer technology, typically give rise to uses which differ from those listed in Article 5(3) of Directive 89/104 and Article 9(2) of Regulation No 40/94...

97      It follows from those factors that, when internet users enter the name of a trade mark as a search term, the home and advertising page of the proprietor of that mark will appear in the list of the natural results, usually in one of the highest positions on that list. That display, which is, moreover, free of charge, means that the visibility to internet users of the goods or services of the proprietor of the trade mark is guaranteed, irrespective of whether or not that proprietor is successful in also securing the display, in one of the highest positions, of an ad under the heading ‘sponsored links’.

98      Having regard to those facts, it must be concluded that use of a sign identical with another person’s trade mark in a referencing service such as that at issue in the cases in the main proceedings is not liable to have an adverse effect on the advertising function of the trade mark.

d) Conclusion

99      In the light of the foregoing, the answer to the first question in Case C‑236/08, the first question in Case C‑237/08 and the first and second questions in Case C‑238/08 is that:

–        Article 5(1)(a) of Directive 89/104 and Article 9(1)(a) of Regulation No 40/94 must be interpreted as meaning that the proprietor of a trade mark is entitled to prohibit an advertiser from advertising, on the basis of a keyword identical with that trade mark which that advertiser has, without the consent of the proprietor, selected in connection with an internet referencing service, goods or services identical with those for which that mark is registered, in the case where that ad does not enable an average internet user, or enables that user only with difficulty, to ascertain whether the goods or services referred to therein originate from the proprietor of the trade mark or an undertaking economically connected to it or, on the contrary, originate from a third party;

–        an internet referencing service provider which stores, as a keyword, a sign identical with a trade mark and organises the display of ads on the basis of that keyword does not use that sign within the meaning of Article 5(1) of Directive 89/104 or of Article 9(1)(a) and (b) of Regulation No 40/94...

104    However, with regard to the question whether a referencing service provider, when it stores those signs, in combination with terms such as ‘imitation’ and ‘copy’, as keywords and permits the display of ads on the basis thereof, itself uses those signs in a way which the proprietor of those marks is entitled to prohibit, it must be borne in mind, as has been pointed out in paragraphs 55 to 57 of the present judgment, that those acts of the service provider do not constitute use for the purposes of Article 5 of Directive 89/104 and Article 9 of Regulation No 40/94.

105    Accordingly, the answer to the second question referred in Case C‑236/08 is that an internet referencing service provider which stores, as a keyword, a sign identical with a reputable trade mark and arranges the display of ads on the basis of that keyword does not use that sign within the meaning of Article 5(2) of Directive 89/104 or of Article 9(1)(c) of Regulation No 40/94...

114    Accordingly, in order to establish whether the liability of a referencing service provider may be limited under Article 14 of Directive 2000/31, it is necessary to examine whether the role played by that service provider is neutral, in the sense that its conduct is merely technical, automatic and passive, pointing to a lack of knowledge or control of the data which it stores. 

115    With regard to the referencing service at issue in the cases in the main proceedings, it is apparent from the files and from the description in paragraph 23 et seq. of the present judgment that, with the help of software which it has developed, Google processes the data entered by advertisers and the resulting display of the ads is made under conditions which Google controls. Thus, Google determines the order of display according to, inter alia, the remuneration paid by the advertisers.

116    It must be pointed out that the mere facts that the referencing service is subject to payment, that Google sets the payment terms or that it provides general information to its clients cannot have the effect of depriving Google of the exemptions from liability provided for in Directive 2000/31.

117    Likewise, concordance between the keyword selected and the search term entered by an internet user is not sufficient of itself to justify the view that Google has knowledge of, or control over, the data entered into its system by advertisers and stored in memory on its server.

118    By contrast, in the context of the examination referred to in paragraph 114 of the present judgment, the role played by Google in the drafting of the commercial message which accompanies the advertising link or in the establishment or selection of keywords is relevant.

119    It is in the light of the foregoing considerations that the national court, which is best placed to be aware of the actual terms on which the service in the cases in the main proceedings is supplied, must assess whether the role thus played by Google corresponds to that described in paragraph 114 of the present judgment.

120    It follows that the answer to the third question in Case C‑236/08, the second question in Case C‑237/08 and the third question in Case C‑238/08 is that Article 14 of Directive 2000/31 must be interpreted as meaning that the rule laid down therein applies to an internet referencing service provider in the case where that service provider has not played an active role of such a kind as to give it knowledge of, or control over, the data stored. If it has not played such a role, that service provider cannot be held liable for the data which it has stored at the request of an advertiser, unless, having obtained knowledge of the unlawful nature of those data or of that advertiser’s activities, it failed to act expeditiously to remove or to disable access to the data concerned."

The bottom line appears to be that Google is not liable for trademark infringement in the operation of its adwords service unless it has actual knowledge of the piggybacking of its advertisers on that service to deliver advertisments deliberately designed to mislead consumers and thereafter fails to take down such adverts.  So there are circumstances in which Google could be held to be guilty of trademark infringement by national courts but effectively this decision constitutes a big win for the seach giant.

Update 2: Here's Google's take on the decision.

"Some companies want to limit choice for users by extending trade mark law to encompass the use of keywords in online advertising. Ultimately they want to be able to exercise greater control over the infomation available to users by preventing other companies from advertising when a user enters their trade mark as a search query. In other words, controlling and restricting the amount of information that users may see in response to their searches.

Today, the Court confirmed that Google has not infringed trade mark law by allowing advertisers to bid for keywords corresponding to their competitors’ trade marks. It also confirmed that European law that protects internet hosting services applies to Google’s AdWords advertising system. This is important because it is a fundamental principle behind the free flow of information over the internet."

Update 3: WSJ report on the case as do the Guardian.

Child protection: detention and eCAF

On Friday Home Office minister Meg Hillier took a leap into la la land, attempting to justify the UK government's continued practice of locking up child asylum seekers and Michael Morpurgo filmed a powerful 2 minute denounciation of the UK government outside the Yarl's Wood Immigration Removal Centre in Bedfordshire. Essential viewing.

Today the atrocious electronic Common Assessment Framework eCAF database goes live and the prime minister is promising 'superfast broadband' for all (that's 2M cf standard 100M in Korea btw) and that the magic internet will cure all our ills.

"So building on this next generation web and the radical opening up of information and data - and therefore more power in people’s hands - the steps towards achieving this ambition to become the leader in the next stage of the digital revolution are three-fold:
First to digitalise - to make Britain the leading superfast broadband digital power creating 100 per cent access to every home;
Second to personalise - seizing the opportunities for voice and choice in our public services by opening up data and using the power of digital technology to transform the way citizens interact with government;
Third to economise - in the Pre-Budget Report we set out our determination to find £11 billion of savings by driving up operational efficiency, much of it enabled by the increased transparency and reduced costs made available by new technology...

The other day I heard how one of Britain’s leading musicians, who spends most of his time abroad, reads his young son a bedtime story from thousands of miles away using Skype. And millions of us can now spend more time with our families because technology allows people to work easily from home...

The internet revolution is quite literally creating a different world.
But just imagine if you weren’t part of that world.
Imagine if you had never accessed the Internet.
Imagine if you had no access to the best deals on the virtual high street - that can save you on average £560 a year by shopping and paying bills online.
Well that is reality for around one in five adults in the UK. 21% of UK adults have never accessed the internet. That’s over a fifth trapped in a second tier of citizenship, denied what I increasingly think of as a fundamental freedom in the modern world: to be part of the internet and technology revolution.
This is unfair, economically inefficient and wholly unacceptable.
Consider the advent of electricity. How acceptable would it have been to say that only some people should have access to electricity?
Superfast broadband is the electricity of the digital age. And I believe it must be for all - not just for some.
We have already decided to commit public funding to ensure existing broadband reaches nearly every household in Britain by 2012.
Now government must decide what action it will take to bring about universal access to the next generation of superfast broadband, simultaneously ensuring the highest quality content is available online and available to all."

Nice that he's heard of Skype I suppose.  But how can he possibly square the circle of universal access to broadband internet services at the same time as his government is proposing to pass the digital economy bill containing measures to facilitate the censorship anid disconnection of potentially millions of people?

Meanwhile as Mr Brown gets excited about the Net, he presides over a government which through technology like eCAF and prisons like Yarl's Wood endanger the welfare of children and families.

Update: Looks like the government has noticed the 11000+ objections to their digital economy bill but with typical bloody minded stupidity are pressing ahead with pushing it through without proper debate, though promising a (no doubt half baked) amendment on a disconnection appeals process, before the election.

Update 2: Charles Arthur has done a useful 'what you need to know' about the digital economy bill article.

3rd Reading Digital Economy Bill in the House of Lords

Well the Lords didn't do anything about the mess that is the Digital Economy Bill on its 3rd reading yesterday. From Hansard I give you the noble Lord Whitty:

"Lord Whitty:

3.30 pm

I regret to say that during the course of our consideration of the Bill, we have seen one of the worst examples in my memory of the political parties being captured by a producer interest. That applies not only to the Government and the bringing forward of the Bill, but to the opposition Front Benches as well. Indeed, we had the extraordinary position of the Liberal Democrat Front Bench, including the noble Lord, Lord Clement-Jones, who I know to be a decent and liberal chap in most of his political endeavour, bringing forward an amendment-which is now Clause 18-that is actually more draconian than the Government's Clause 17. I hope that at some point, when we reach that stage, they will recognise the error of their ways.
Unfortunately, in terms of the balance of debate within this House, we seem to have a near unanimous position in support of the government proposals. Apart from the noble Earl, Lord Erroll, the noble Baroness, Lady Miller, myself and one or two others who have appeared maverick in this debate, this House seems to have accepted the wisdom of going through a whole range of changes in our approach both to the law and to the way in which our digital media operate. We have imposed police powers on ISPs which are reluctant to accept them. We have threatened several millions of our citizens with exclusion from the internet by administrative decree, with dubious means of identifying who was actually the perpetrator of the alleged

15 Mar 2010 : Column 459
infringement. We have seen the Government, putatively this House and other political parties backing protectionism rather than competition and innovation, moving towards an exclusion of people from digital access rather than the inclusion that the rest of the Bill-which I fully support-provides. It has landed us with a pretty much unenforceable law that will get a penny back to the rights owners whom the legislation was intended to support.
Out there, however, there is no unanimity at all. There is a very widespread opposition to the Bill from individuals who feel threatened, from parents who are concerned that measures will be taken against them because of their children's use of the internet and from employers who are worried about the same thing in relation to their staff. Surveys conducted by my organisation, Consumer Focus, indicate that 75 per cent of the population do not understand what is lawful and unlawful in this context and that a rather higher proportion, when told what is lawful and unlawful, do not support those laws.
There are alternative ways of moving to a different system of accessing copyright material on the internet. Lawful systems of file-sharing exist in the music industry and elsewhere; it is just that they have a very low recognition by the public. The survey that we conducted showed that, of the 20 such systems that are or have been in operation, none has received an awareness level above single figures in percentage terms. Yet, ultimately, at various points in this debate, we have all agreed that a move to lawful systems of file-sharing is the aim of this measure.
Anxieties about the throttling or suspension of their internet connections have been expressed by people who will not be perpetrators. This includes not only businesses and parents, as I mentioned, but also the hotel trade-which provides access to the internet as part of its services to guests-libraries, colleges and other institutions whose students use the internet and wi-fi facilities. The Government have sort of acknowledged those anxieties but they have done nothing about changing the Bill to recognise them. They say that it will all be taken care of in the wash, as Ofcom develops its code with the industry, and that all these things will be clarified and no one needs to be anxious about them.
However, despite a few ameliorations, this is still a bad Bill. It is bad for the digital rights holders to press their interests in this way, when there are alternatives, and it is bad for the Government to risk alienation of a very significant part of the population by enforcing these measures. My noble friend Lord Puttnam-who probably takes a different view from me in terms of supporting the digital rights owners-said a very wise thing earlier in the debate, namely that the Bill would clearly have benefited greatly from pre-legislative scrutiny in which we could have looked at all the options.
Instead we have a Bill that does virtually nothing to encourage ways of bringing together the rights holders-the ISPs and lawful file-sharing operators-so that new business models could be developed. It could provide to the punters, and certainly to the casual users who are not making any money out of their

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copyright infringement, the ability to access cheaply, freely and flexibly through the new business models provided by those systems.
Surely that is the road that we should go down, to move from the impossibility of pursuing millions of people under these arrangements to a situation where there are lawful means of gaining access and the only people who will continue to be accused of infringement of copyright are those who are making money out of it or who are such mega-multiple-serial offenders that some punitive measures are necessary.
If we are to move to a more positive arrangement where most file-sharing is done lawfully, then an educational process will have to take place. All sides of the House have recognised that. My noble friend the Minister, like others, has said that stage 1 is an educational stage. However, it is not simply an educational stage. It is the beginning of measures whereby a subscriber can be designated and accused of an apparent infringement of copyright, which can eventually lead, through proceedings under the Bill, to a situation where draconian measures to throttle, cut off or suspend digital access are imposed."

P2P and linking thereto declared legal in Spain

Andres Guadamuz has a nice analysis of the Barcelona court decision declaring P2P sites and the act of linking to such sites legal.

"(Via El Mundo) A judge in Barcelona has just delivered an astounding sentence with regards to sites that link to P2P content. The case was brought by SGAE (Sociedad General de Autores y Editores), the main Spanish collecting society, against Mr Jesus Guerra-Calderón, an individual who administers a site called elrincondejesus.com. SGAE claimed that Mr Guerra has been reproducing and communicating to the public works owned by their associates. The respondent argued that his website does not store any content, is not for profit, and that it simply provides links that can only be accessed using eMule, a P2P application, and therefore is not liable for direct or secondary copyright infringement. The judge agreed with the respondent, and dismissed the claim....

This is an important and interesting ruling. I tend to agree with the linking part of the reasoning, but I completely disagree with the argument presented by the judge with regards to P2P networks. The judge uses some paper-thin arguments here to imply that P2P networks are not illegal, that they are here to stay anyway so what is the problem, and that almost nothing taking place in those networks can be enforced. I would be surprised if SGAE does not appeal the ruling.

Having said that, it seems clear that judges around the world are increasingly having to grapple with complex technical issues. The Australian judge in Roadshow v iiNet got the technology right. I’m afraid that Mr García-Orejudo did not even try."

Well said Anthony Horowitz

My kids and I have been fans of Anthony Horowitz's writings for some time. He really understands how disastrous the UK government obsession with building childrens' databases is and in recent years hasn't been afraid to voice his opinions publicly, as in today's Sunday Independent, for example.

""The last thing you want is a children's author on a soapbox," he says. "It's an unpleasant sight, and it's misguided to think that, because you have influence over what children like to read, you have any authority to speak on their behalf."

Just try stopping him, though. "What we've done over the past 13 years is utterly to demonise kids; to alienate them; to separate them from ourselves – as if they're not actually what we once were. The Government has done everything in its power to marginalise them, turn them into little bleeps on a database, surround them with even more foolish laws, even more foolish targets, to manage every aspect of their lives from cradle to the grave. And the bitter fruits of that misjudgement and selfishness are becoming ever more apparent.""

New documentary on copyright

Thanks to Siva Vaidhyanathan for pointing me to a new documentary on copyright,

CITIZEN 3.0 copyright, creativity and contemporary culture

10 days and counting until eCAF goes live

In a little reported statement from the Minister for Children, Young People and Families, Dawn Primarolo, yesterday, we learn that the latest Nu Labour 'cure it with a database' disaster, the electronic Common Assessment Framework (eCAF), is imminent.

"The Minister for Children, Young People and Families (Dawn Primarolo): I am announcing today progress in the implementation of the National electronic Common Assessment Framework system (National eCAF)

Many children and young people in England need support from a range of services because they have additional needs. The Common Assessment Framework (CAF), which came about as part of the Every Child Matters reforms, plays a crucial part in delivering this for them. The CAF is designed to help practitioners to assess the additional needs of children and young people when they emerge, and to work together to meet them. CAF is used only with the consent of children and young people, or their parents and carers as appropriate. Since its introduction in 2006 thousands of practitioners have been trained in the CAF and are now using it successfully in their day-to-day work.

CAF information is currently recorded using a paper format or on local systems. A new system to electronically enable the CAF, called National eCAF, will be made available from 22 March 2010 to a small group of early adopter organisations who have applied to take part in this scheme. They comprise four local authorities—Birmingham, Cambridgeshire, Northamptonshire and Walsall, and two voluntary organisations—Barnardo’s and Kids. Information will be held on National eCAF, as with the CAF, only with the explicit consent of the child or young person, or their parents or carers as appropriate.

The security of National eCAF is of paramount importance. Only authorised, trained practitioners with enhanced Criminal Records Bureau checks will be able to use National eCAF; they will also need a token and a password to access the system.

We have worked closely with professionals and partner organisations on the development of National eCAF to date, and we will continue to do so as we develop the system further, and in the light of the experience of early adopter organisations.

For more information, please visit www.dcsf.gov.uk/ecm/ecaf."

The CAF, remember, is the scheme under which any child in the UK can be labelled "at risk" for not consuming 5 portions of fruit and vegetables every day. Whilst at the same time the government presides over a regime where immigrant children can be held in detention centres as long as the paperwork labels them as adults.  There surely has to be an opportunity here to have detained immigrant minors labelled as "at risk" from the authorities?

For a comprehensive insight into the issues with eCAF and its sister database calamity, ContactPoint, see the excellent Action on Rights for Children website and YouTube films.  From Terri Dowty at ARCH:

"If you’re still not sure what a CAF (‘Common Assessment Framework’) is, it’s a personal profiling tool to be used on children and their families when a child needs services. The Practitioners’ guide can be downloaded here (pdf) and we recommend that you scroll down to Annex D on p.71 to get an idea of the kind of information that is sought. That weasel word ‘appropriate’, designed to disguise subjective opinion as non-judgmental, makes 21 appearances, as when a practitioner is invited to consider whether the child has ‘age-appropriate friendships’ and ‘appropriate behaviour’, or whether parents offer ‘appropriate’ sensitivity, warmth, guidance and support.

And, yes, they are planning to put this information on a single, national database.
As for consent, we have been told repeatedly by those working in children’s services that, in practice, if you want services you had better agree to the CAF process. When it comes to who actually gives this ‘consent’, to quote from our research report on the subject:

The Government asserts in guidance that children in England can generally be presumed able to consent to the sharing of their personal and sensitive data from around the age of 12. Many local authorities repeat this advice. It has no basis in English law."

UKIP oppose EU Parliament resolution on ACTA transparency

About an hour ago  Glyn Moody suggested we write to our MEPs thanking them for voting so hugely in favor of the resolution tabled on 'Transparency and State of Play of ACTA negotiations'.

I thought what a good idea and composed a short note but then thought I should just check out if all my MEPs had voted in favor. It turns out that two of them, both UKIP, voted against the motion.  So I looked through the entire list of votes and it seems that of the 13 MEPs who voted against the motion 10 were UKIP members and 3 independent Dutch MEPs.

ORG discover BPI drafted web blocking amendment

The ever vigilant and enegetic Open Rights Group has discovered that the BPI drafted the contoversial web blocking amendment to the digital economy bill passed in the House of Lords.  Here's Jim Killock of ORG:

"Just in case you were wondering where the idea for a web blocking amendment came from, we attach to this blog post a copy of the BPI’s draft, along with their justification for it.
Now, amendments often come from lobby and campaign groups, including us, not least because it’s the easiest way for them to show parliamentarians what they want. But the fact that twice, with the original copyright by diktat proposal, and then the web blocking proposal, the BPI essentially got to write what they wanted and get it proposed more or less wholesale as law, in such a tremendously sensitive area and in such a one-sided manner, shows something is very wrong with the way this debate is being conducted.
Parliamentarians need to recognize that copyright touches everyone and every technology in the digital age. It is no longer a question of inter-business regulation and deals. Getting copyright wrong has the potential to mess up our freedom of speech, prevent us from getting the benefits of new technologies, and damage society in other very profound ways.
It is therefore deeply inappropriate for such fundamental proposals to have been introduced by both the government or the opposition parties at the behest of one side of the debate. That applies just as much to disconnection, which Mandelson introduced in the sumer at the last minute under pressure again from the BPI and other rights holders.
As the Conservatives launch their digital policies today - we again ask why these proposals are being supported, in such direct contradiction to their apparent aims?"

And as Lilian Edwards points out in comments, since the BPI drafted the law, they can claim copyright in it and once it is passed ask an ISP to block the ORG site for posting a copy of their copyrighted material in full. Then as Francis Davey, Richard Clayton and others have pointed out the ISP has nothing to gain and significant money to lose by refusing to take the site down.

Something smells...

We can't circumvent our way around censorship

Ethan Zuckerman is one of a number of very smart people who have been working at Harvard for several years on the issue of net censorship.  He has written a terrific article at World Changing this week pointing out that rhetorical calls from politicians to keep the Net free have to be backed up with a deep understanding of the complexities involved and real commitment and deployment of resources to address the problem.

"I strongly believe that we need strong, anonymized and useable censorship circumvention tools. But I also believe that we need lots more than censorship circumvention tools, and I fear that both funders and technologists may overfocus on this one particular aspect of internet freedom at the expense of other avenues. I wonder whether we’re looking closely enough at the fundamental limitations of circumvention as a strategy and asking ourselves what we’re hoping internet freedom will do for users in closed societies.
So here’s a provocation: We can’t circumvent our way around internet censorship.
I don’t mean that internet censorship circumvention systems don’t work. They do – our research tested several popular circumvention tools in censored nations and discovered that most can retrieve blocked content from behind the Chinese firewall or a similar system. (There are problems with privacy, data leakage, the rendering of certain types of content, and particularly with usability and performance, but the systems can circumvent censorship.) What I mean is this – we couldn’t afford to scale today’s existing circumvention tools to “liberate” all of China’s internet users even if they all wanted to be liberated...

In short:
- Internet circumvention is hard. It’s expensive. It can make it easier for people to send spam and steal identities.
- Circumventing censorship through proxies just gives people access to international content – it doesn’t address domestic censorship, which likely affects the majority of people’s internet behavior.
- Circumventing censorship doesn’t offer a defense against DDoS or other attacks that target a publisher...

- We need to continue supporting circumvention efforts, at least in the short term. But we need to disabuse ourselves of the idea that we can “solve” censorship through circumvention. We should support circumvention until we find better technical and policy solutions to censorship, not because we can tear down the Great Firewall by spending more.
- If we want more people using circumvention tools, we need to find ways to make them fiscally sustainable...
- As we continue to fund circumvention, we need to address usage of these tools to send spam, commit fraud and steal personal data. … but we’ve got to find a solution that protects networks against abuse while maintaining the possibility of anonymity, a difficult balancing act.
- We need to shift our thinking from helping users in closed societies access blocked content to helping publishers reach all audiences...
- let’s find ways to challenge companies to build blocking resistance into their platforms and to consider internet freedom to be a central part of their business mission...
- The US government should treat internet filtering – and more aggressive hacking and DDoS attacks – as a barrier to trade. The US should strongly pressure governments in open societies like Australia and France to resist the temptation to restrict internet access, as their behavior helps China and Iran make the case that their censorship is in line with international norms. And we need to fix US treasury regulations make it difficult and legally ambiguous for companies like Microsoft and projects like SourceForge to operate in closed societies. If we believe in Internet Freedom, a first step needs to be rethinking these policies so they don’t hurt ordinary internet users.
The danger in heeding Secretary Clinton’s call is that we increase our speed, marching in the wrong direction. As we embrace the goal of Internet Freedom, now is the time to ask what we’re hoping to accomplish and to shape our strategy accordingly."

In the light of the web blocking amendment to the UK digital economies bill let me just repeat some of Zuckerman's suggestions:

continue to fund circumvention...

challenge companies to build blocking resistance into their platforms...

pressure governments in open societies...to resist the temptation to restrict internet access...

pressure governments in open societies...to resist the temptation to restrict internet access...

pressure governments in open societies...to resist the temptation to restrict internet access...

pressure governments in open societies...to resist the temptation to restrict internet access...

Commerce, consumer groups and academics object to amendment 120a

An eclectic collection of conscientious objectors from the tech industry, the NGO sector and academia have come together to point out some of the major flaws in amendment 120 to the digital economies bill facilitating web blocking.

"Amendment 120A Digital Economy Bill March 10th, 2010

Dear Sirs,
We regret that the House of Lords last week adopted amendment 120A to the Digital Economy Bill. This amendment not only significantly changes the injunctions procedure in the UK but will lead to an increase in Internet service providers blocking websites accused of illegally hosting copyrighted material without cases even reaching a judge. The amendment seeks to address the legitimate concerns of rights-holders but would have unintended consequences which far outweigh any benefits it could bring.
Endorsing a policy that would encourage the blocking of websites by UK broadband providers or other Internet companies is a very serious step for the UK to take. There are myriad legal, technical and practical issues to reconcile before this can be considered a proportionate and necessary public policy option.  In some cases, these may never be reconciled. These issues have not even been considered in this case.
The Lords have been thoughtful in their consideration of the Bill to date.  It is therefore bitterly disappointing that the House has allowed an amendment with obvious shortcomings to proceed without challenging its proponents to consider and address the full consequences.  Put simply, blocking access as envisaged by this clause would both widely disrupt the Internet in the UK and elsewhere, threatening freedom of speech and the open Internet, without reducing copyright infringement as intended. To rush through such a controversial proposal at the tail end of a Parliament, without any kind of consultation with consumers or industry, is very poor law making.
We are particularly concerned that a measure of this kind as a general purpose policy could have an adverse impact on the reputation of the UK as a place to do online business and conflict with the broader objectives of Digital Britain.  This debate has created a tension between specific interest groups and the bigger prize of promoting a policy framework that supports our digital economy and appropriately balances rights and responsibilities.  All parties should take steps to safeguard this prize and place it at the heart of public policy in this area.
Yours sincerely,
Richard Allan, Director of Policy EU, Facebook
Neil Berkett, Chief Executive, Virgin Media
Matt Brittin, Managing Director, Google UK and Ireland
Charles Dunstone, Chairman, Talk Talk Group
Jessica Hendrie-Liaño, Chair, Internet Services Providers Association (ISPA)
Jill Johnstone, International Director, Consumer Focus
Jim Killock, Executive Director, Open Rights Group
Mark Lewis, Managing Director, eBay UK Ltd
Ian Livingstone, Chief Executive, BT Group
Professor Sarah Oates, University of Glasgow
Dr Jenny Pickerill, University of Leicester
Mark Rabe, Managing Director, Yahoo! UK and Ireland
Dr Paul Reilly, University of Leicester
Jess Search, Founder, Shooting People independent film makers
Professor Ian Walden, Queen Mary, University of London
Tom Watson MP"

EU Parliament resolution on ACTA tabled

Christian Engström writes that an EU Parliament resolution has been tabled on 'Transparency and State of Play of ACTA negotiations'. The resolution:

"1.    Reminds that the Commission has since the 1 December 2009 the legal obligation to immediately and fully inform the European Parliament at all stages of international negotiations;
2.    Expresses its concern over the lack of a transparent process in the conduct of the ACTA negotiations which contradicts the letter and the spirit of the TFEU; is deeply concerned that no legal base has been established before the start of the ACTA negotiations and that no parliamentary approval has been asked for the mandate;
3.    Calls on the Commission and Council to grant public and parliamentary access to ACTA negotiation texts and summaries in accordance with the Treaty and the Regulation 1049/2001 on Public Access to Documents;
4.    Calls on the Commission and Council to pro-actively engage with ACTA partners to rule out any further negotiations of an a piori confidential nature and to timely and entirely inform Parliament about its initiatives in this regard; expects the Commission to make proposals already prior to the next negotiation round in New Zealand in April 2010 and to demand that the issue of transparency is put on the agenda of that meeting, and to refer to Parliament the outcome of this round immediately after its conclusion;
5.    Stresses that, unless the Parliament is immediately and fully informed at all stages of the negotiations, Parliament reserves its right to take suitable action, including bringing a case before the Court of Justice in order to safeguard its prerogatives;
6.    Calls on the Commission to conduct an impact assessment of ACTA's implementation on fundamental rights and data protection, on the ongoing EU efforts to harmonise IPR enforcement measures, and on E-Commerce, prior to any EU agreement to a consolidated ACTA treaty text, and to timely consult with Parliament about the results of this assessment;
7.    Welcomes affirmations by the Commission that any ACTA agreement will be limited to the enforcement of existing IPRs, with no prejudice for the development of substantive IP law in the European Union;
8.    Calls on the Commission to continue the negotiations on ACTA in order to improve the effectiveness of the IPR enforcement system against counterfeiting;
9.    Urges the Commission to ensure that the enforcement of ACTA provisions - especially its provisions on copyright enforcement procedures in the digital environment - are fully in line with the acquis communitaire; demands that no personal search is undertaken at the EU borders and requests full clarification of any clauses that would allow for warrantless searches and confiscation of information storage devices, such as laptops, cell phones and MP3 players, by border and customs authorities;
10.    Considers that in order to respect fundamental rights such as freedom of expression and the right to privacy, with full respect for subsidiarity, the proposed Agreement must refrain from imposing any so called "three strikes" procedures, in full respect of the decision of Parliament on article 1.1b in the (amending) Directive 2009/140/EC that calls to insert a new para 3 a to article 1 Directive 2002/21/EC on the matter of  "three strikes"
11.    Emphasizes that privacy and data protection are core values of the European Union, recognised in Article 8 ECHR and Articles 7 and 8 of the EU Charter of Fundamental Rights, which must be respected in all the policies and rules adopted by the EU pursuant to Article 16 of the TFEU;
12.    Instructs its President to forward this resolution to the Commission, the Council and the Governments and Parliaments of ACTA negotiation participants."

Christian Engström provides a link to a Microsoft Word version of the full resolution. Amonsgt quite a range of demands including a ban on ACTA introducing 3 strikes, the resolution threatens that the parliament will apply to the European Court of Justice for greater transparency and public access to the details of the ACTA negotiations.

Shock horror: protestors and police get along

Too often we see/hear headlines of clashes between protestors and police that go wrong.  Here's an encounter that was amicably handled by both sides.

iPhone Developer Program License Agreement

Fred von Lohmann at the EFF has obtained a copy of the iPhone Developer Program License Agreement and it's not pretty.

"The entire family of devices built on the iPhone OS (iPhone, iPod Touch, iPad) have been designed to run only software that is approved by Apple—a major shift from the norms of the personal computer market. Software developers who want Apple's approval must first agree to the iPhone Developer Program License Agreement.

So today we're posting the "iPhone Developer Program License Agreement"—the contract that every developer who writes software for the iTunes App Store must "sign." Though more than 100,000 app developers have clicked "I agree," public copies of the agreement are scarce, perhaps thanks to the prohibition on making any "public statements regarding this Agreement, its terms and conditions, or the relationship of the parties without Apple's express prior written approval." But when we saw the NASA App for iPhone, we used the Freedom of Information Act (FOIA) to ask NASA for a copy, so that the general public could see what rules conrolled the technology they could use with their phones. NASA responded with the Rev. 3-17-09 version of the agreement (it has reportedly been revised somewhat since—please send us the current version if you are able).

This "license agreement" is particularly relevant right now, given the imminent launch of the iPad and anytime-now issuance of the U.S. Copyright Office's ruling regarding jailbreaking of the iPhone.

So what's in the Agreement? Here are a few troubling highlights:

Ban on Public Statements...

App Store Only...

Ban on Reverse Engineering...

No Tinkering with Any Apple Products...

Kill Your App Any Time...

We Never Owe You More than Fifty Bucks...

Overall, the Agreement is a very one-sided contract, favoring Apple at every turn. That's not unusual where end-user license agreements are concerned (and not all the terms may ultimately be enforceable), but it's a bit of a surprise as applied to the more than 100,000 developers for the iPhone, including many large public companies. How can Apple get away with it? Because it is the sole gateway to the more than 40 million iPhones that have been sold. In other words, it's only because Apple still "owns" the customer, long after each iPhone (and soon, iPad) is sold"